55

ARTICLE I

LEGISLATIVE DEPARTMENT

CONTENTS

Page

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

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

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

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

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

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

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

Origin of the Doctrine of Nondelegability ................................................................. 73

Delegation Which Is Permissible ............................................................................... 75

Filling Up the Details .......................................................................................... 76

Contingent Legislation ........................................................................................ 76

The Effective Demise of the Nondelegation Doctrine ............................................... 78

The Regulatory State ........................................................................................... 78

Standards .............................................................................................................. 82

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

Delegations to the States ..................................................................................... 86

Delegation to Private Persons ............................................................................. 87

Delegation and Individual Liberties ................................................................... 88

Punishment of Violations ........................................................................................... 89

Congressional Investigations ............................................................................................. 90

Source of the Power to Investigate ............................................................................ 90

Investigations of Conduct of Executive Department ................................................ 92

Investigations of Members of Congress ..................................................................... 93

Investigations in Aid of Legislation ........................................................................... 93

Purpose ................................................................................................................. 93

Protection of Witnesses: Pertinency and Related Matters ............................... 96

Protection of Witnesses: Constitutional Guarantees ......................................... 100

Sanctions of the Investigatory Power: Contempt ..................................................... 103

Section 2. The House of Representatives ................................................................................. 105

Clause 1. Congressional Districting .................................................................................. 105

Elector Qualifications .................................................................................................. 109

Clause 2. Qualifications of Members of Congress ............................................................ 110

When the Qualifications Must Be Possessed ............................................................ 110

Exclusivity of Constitutional Qualifications ............................................................. 110

Congressional Additions ............................................................................................. 110

State Additions ............................................................................................................ 113

Clause 3. Apportionment of Seats in the House .............................................................. 114

The Census Requirement ........................................................................................... 114

Clause 4. Vacancies ............................................................................................................ 116

Clause 5. Officers and Power of Impeachment ................................................................ 116

Section 3. The Senate ................................................................................................................ 116

Clause 1. Composition and Selection ................................................................................ 116

Clause 2. Classes of Senators ............................................................................................ 116
56

Section 3. The Senate—Continued

Clause 3. Qualifications ..................................................................................................... 117

Clause 4. The Vice President ............................................................................................. 117

Clause 5. Officers ................................................................................................................ 117

Clause 6. Trial of Impeachments ...................................................................................... 117

Clause 7. Judgments on Impeachment ............................................................................. 117

Section 4. Elections .................................................................................................................... 117

Clause 1. Congressional Power to Regulate ..................................................................... 117

Federal Legislation Protecting Electoral Process ..................................................... 118

Clause 2. Time of Assembling ........................................................................................... 121

Section 5. Powers and Duties of the Houses ........................................................................... 121

Clause 1. Power to Judge Elections .................................................................................. 122

‘‘A Quorum to Do Business’’ ....................................................................................... 122

Clause 2. Rules of Proceedings .......................................................................................... 123

Powers of the Houses Over Members ........................................................................ 124

Clause 3. Duty to Keep a Journal ..................................................................................... 125

Clause 4. Adjournments ..................................................................................................... 121

Section 6. Rights and Disabilities of Members ........................................................................ 125

Clause 1. Compensation and Immunities ......................................................................... 126

Congressional Pay ....................................................................................................... 126

Privilege from Arrest .................................................................................................. 127

Privilege of Speech or Debate ..................................................................................... 127

Members ............................................................................................................... 127

Congressional Employees .................................................................................... 132

Clause 2. Disabilities .......................................................................................................... 134

Appointment to Executive Office ............................................................................... 134

Incompatible Offices .................................................................................................... 135

Section 7. Legislative Process ................................................................................................... 135

Clause 1. Revenue Bills ..................................................................................................... 136

Clause 2. Approval by the President ................................................................................ 137

The Veto Power ........................................................................................................... 138

Clause 3. Presentation of Resolutions .............................................................................. 141

The Legislative Veto ............................................................................................ 141

Section 8. Powers of Congress .................................................................................................. 144

Clause 1. Power to Tax and Spend ................................................................................... 144

Kinds of Taxes Permitted ........................................................................................... 144

Decline of the Forbidden Subject Matter Test ................................................... 144

Federal Taxation of State Interests .................................................................... 145

Scope of State Immunity from Federal Taxation .............................................. 147

Uniformity Requirement ..................................................................................... 149

Purposes of Taxation ................................................................................................... 150

Regulation by Taxation ........................................................................................ 150

Extermination by Taxation ................................................................................. 151

Promotion of Business: Protective Tariff ............................................................ 152

Spending for the General Welfare ............................................................................. 153

Scope of the Power ............................................................................................... 153

Social Security Act Cases ........................................................................................... 155

An Unrestrained Federal Spending Power ............................................................... 156

Conditional Grants-In-Aid .......................................................................................... 156

Earmarked Funds ....................................................................................................... 158

Debts of the United States ......................................................................................... 158

Clause 2. Borrowing Power ................................................................................................ 159

Clause 3. Commerce Power ............................................................................................... 160
57

Section 8. Powers of Congress—Continued

Clause 3. Commerce Power—Continued

Power to Regulate Commerce ..................................................................................... 160

Purposes Served by the Grant ............................................................................ 160

Definition of Terms .............................................................................................. 160

Commerce ...................................................................................................... 160

Among the Several States ............................................................................ 163

Regulate ......................................................................................................... 164

Necessary and Proper Clause ...................................................................... 165

Federalism Limits on Exercise of Commerce Power .................................. 166

Illegal Commerce .......................................................................................... 167

Interstate versus Foreign Commerce ......................................................................... 167

Instruments of Commerce .......................................................................................... 169

Congressional Regulation of Waterways ................................................................... 170

Navigation ............................................................................................................ 170

Hydroelectric Power; Flood Control .................................................................... 173

Congressional Regulation of Land Transportation ................................................... 175

Federal Stimulation of Land Transportation ..................................................... 175

Federal Regulation of Land Transportation ...................................................... 176

Federal Regulation of Intrastate Rates .............................................................. 178

Federal Protection of Labor in Interstate Rail Transportation ........................ 179

Regulation of Other Agents of Carriage and Communications ........................ 180

Congressional Regulation of Commerce as Traffic ................................................... 181

The Sherman Act: Sugar Trust Case ................................................................. 181

Sherman Act Revived .......................................................................................... 183

The ‘‘Current of Commerce’’ Concept: The Swift Case ...................................... 183

The Danbury Hatters Case .................................................................................. 184

Stockyards and Grain Futures Acts ................................................................... 185

Securities and Exchange Commission ................................................................ 186

Congressional Regulation of Production and Industrial Relations:

Antidepression Legislation ...................................................................................... 187

National Industrial Recovery Act ....................................................................... 187

Agricultural Adjustment Act ............................................................................... 188

Bituminous Coal Conservation Act ..................................................................... 188

Railroad Retirement Act ...................................................................................... 189

National Labor Relations Act .............................................................................. 190

Fair Labor Standards Act .................................................................................... 192

Agricultural Marketing Agreement Act ............................................................. 194

Acts of Congress Prohibiting Commerce ................................................................... 196

Foreign Commerce: Jefferson’s Embargo ........................................................... 196

Foreign Commerce: Protective Tariffs ................................................................ 198

Foreign Commerce: Banned Articles .................................................................. 198

Interstate Commerce: Power to Prohibit Questioned ........................................ 199

Interstate Commerce: National Prohibitions and State Police Power ............. 200

The Lottery Case .................................................................................................. 200

The Darby Case .................................................................................................... 202

The Commerce Clause as a Source of National Police Power ................................. 203

Is There an Intrastate Barrier to Congress’ Commerce Power? ...................... 203

Civil Rights ........................................................................................................... 207

Criminal Law ........................................................................................................ 208

The Commerce Clause as a Restraint on State Powers ........................................... 209

Doctrinal Background .......................................................................................... 209

The State Proprietary Activity Exception .......................................................... 216
58

Section 8. Powers of Congress—Continued

Clause 3. Commerce Power—Continued

Congressional Authorization of Impermissible State Action ............................ 216

State Taxation and Regulation: The Old Law .......................................................... 220

General Considerations ....................................................................................... 220

Taxation ................................................................................................................ 221

Regulation ............................................................................................................. 224

State Taxation and Regulation: The Modern Law ................................................... 227

General Considerations ....................................................................................... 227

Taxation ................................................................................................................ 228

Regulation ............................................................................................................. 233

Foreign Commerce and State Powers ........................................................................ 240

Concurrent Federal and State Jurisdiction ............................................................... 243

The General Issue: Preemption .......................................................................... 243

Preemption Standards .................................................................................. 245

The Standards Applied ................................................................................. 246

Federal Versus State Labor Laws ............................................................... 254

Commerce With Indian Tribes ................................................................................... 260

Clause 4. Naturalization and Bankruptcies ..................................................................... 265

Naturalization and Citizenship .................................................................................. 265

Nature and Scope of Congress’ Power ................................................................ 265

Categories of Citizens: Birth and Naturalization .............................................. 267

The Naturalization of Aliens ............................................................................... 268

Rights of Naturalized Persons .................................................................................... 270

Expatriation: Loss of Citizenship ............................................................................... 272

Aliens ............................................................................................................................ 276

The Power of Congress to Exclude Aliens .......................................................... 276

Deportation ........................................................................................................... 280

Bankruptcy .................................................................................................................. 281

Persons Who May Be Released from Debt ......................................................... 281

Liberalization of Relief Granted and Expansion of the Rights of the Trustee 282

Constitutional Limitations on the Bankruptcy Power ...................................... 283

Constitutional Status of State Insolvency Laws: Preemption .......................... 284

Clauses 5 and 6. Money ..................................................................................................... 286

Fiscal and Monetary Powers of Congress .................................................................. 287

Coinage, Weights, and Measures ........................................................................ 287

Punishment of Counterfeiting ............................................................................. 287

Borrowing Power versus Fiscal Power ............................................................... 288

Clause 7. Post Office .......................................................................................................... 289

Postal Power ................................................................................................................ 289

‘‘Establish’’ ............................................................................................................ 289

Power to Protect the Mails .................................................................................. 290

Power to Prevent Harmful Use of the Postal Facilities .................................... 290

Exclusive Power as an Adjunct to Other Powers .............................................. 292

State Regulations Affecting the Mails ................................................................ 292

Clause 8. Copyrights and Patents ..................................................................................... 293

Copyrights and Patents .............................................................................................. 294

Scope of the Power ............................................................................................... 294

Patentable Discoveries ......................................................................................... 295

Procedure in Issuing Patents .............................................................................. 297

Nature and Scope of the Right Secured ............................................................. 298

Power of Congress over Patent Rights ............................................................... 299

State Power Affecting Payments and Copyrights .............................................. 300
59

Section 8. Powers of Congress—Continued

Clause 8. Copyrights and Patents—Continued

Trade-Marks and Advertisements ...................................................................... 302

Clause 9. Creation of Courts ............................................................................................. 302

Clause 10. Maritime Crimes .............................................................................................. 303

Piracies, Felonies, and Offenses Against the Law of Nations ................................. 303

Origin of the Clause ............................................................................................. 303

Definition of Offenses .......................................................................................... 303

Extraterritorial Reach of the Power ................................................................... 304

Clauses 11, 12, 13, and 14. War; Military Establishment .............................................. 305

The War Power ............................................................................................................ 305

Source and Scope ................................................................................................. 305

Three Theories .............................................................................................. 305

An Inherent Power ........................................................................................ 306

A Complexus of Granted Powers ................................................................. 307

Declaration of War ............................................................................................... 307

The Power to Raise and Maintain Armed Forces ..................................................... 311

Purpose of Specific Grants .................................................................................. 311

Time Limit on Appropriations for the Army ...................................................... 312

Conscription .......................................................................................................... 312

Care of the Armed Forces .................................................................................... 314

Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents ............................................................................................................ 316

Servicemen .................................................................................................... 316

Civilians and Dependents ............................................................................ 319

War Legislation ........................................................................................................... 319

War Powers in Peacetime .................................................................................... 319

Delegation of Legislative Power in Wartime ..................................................... 322

Constitutional Rights in Wartime .............................................................................. 324

Constitution and the Advance of the Flag ......................................................... 324

Theater of Military Operations .................................................................... 324

Enemy Country ............................................................................................. 324

Enemy Property ............................................................................................ 325

Prizes of War ................................................................................................. 326

The Constitution at Home in Wartime .............................................................. 326

Personal Liberty ............................................................................................ 326

Enemy Aliens ................................................................................................ 328

Eminent Domain ........................................................................................... 329

Rent and Price Controls ............................................................................... 330

Clauses 15 and 16. The Militia ......................................................................................... 331

The Militia Clause ....................................................................................................... 331

Calling Out the Militia ........................................................................................ 331

Regulation of the Militia ..................................................................................... 332

Clause 17. District of Columbia; Federal Property .......................................................... 333

Seat of the Government .............................................................................................. 333

Authority Over Places Purchased .............................................................................. 337

‘‘Places’’ ................................................................................................................. 337

Duration of Federal Jurisdiction ......................................................................... 338

Reservation of Jurisdiction by States ................................................................. 339

Clause 18. Necessary and Proper Clause ......................................................................... 339

Coefficient or Elastic Clause ...................................................................................... 339

Scope of Incidental Powers .................................................................................. 339

Operation of Coefficient Clause .......................................................................... 340
60

Section 8. Powers of Congress—Continued

Clause 18. Necessary and Proper Clause—Continued

Definition of Punishment and Crimes ................................................................ 341

Chartering of Banks ............................................................................................ 341

Currency Regulations .......................................................................................... 342

Power to Charter Corporations ........................................................................... 342

Courts and Judicial Proceedings ......................................................................... 343

Special Acts Concerning Claims ......................................................................... 343

Maritime Law ....................................................................................................... 344

Section 9. Powers Denied to Congress ..................................................................................... 344

Clause 1. Importation of Slaves ........................................................................................ 344

General Purpose of § 9 ................................................................................................ 344

Clause 2. Habeas Corpus Suspension ............................................................................... 345

Clause 3. Bills of Attainder and Ex Post Facto Laws ...................................................... 346

Bills of Attainder ......................................................................................................... 347

Ex Post Facto Laws ..................................................................................................... 350

Definition .............................................................................................................. 350

What Constitutes Punishment ............................................................................ 351

Change in Place or Mode of Trial ....................................................................... 352

Clause 4. Taxes ................................................................................................................... 352

Direct Taxes ................................................................................................................. 352

The Hylton Case ................................................................................................... 352

From the Hylton to the Pollock Case .................................................................. 353

Restriction of the Pollock Decision ..................................................................... 354

Miscellaneous ....................................................................................................... 354

Clause 5. Duties on Exports from States ......................................................................... 356

Taxes on Exports ......................................................................................................... 356

Stamp Taxes ......................................................................................................... 356

Clause 6. Preference to Ports ............................................................................................ 357

The ‘‘No Preference’’ Clause ....................................................................................... 357

Clause 7. Appropriations and Accounting of Public Money ............................................ 358

Appropriations ............................................................................................................. 358

Payment of Claims ...................................................................................................... 358

Clause 8. Titles of Nobility; Presents ............................................................................... 359

Section 10. Powers Denied to the States ................................................................................. 359

Clause 1. Not to Make Treaties, Coin Money, Pass Ex Post Facto Laws, Impair Contracts ................................................................................................................................ 359

Treaties, Alliances, or Confederations ....................................................................... 360

Bills of Credit .............................................................................................................. 360

Legal Tender ................................................................................................................ 361

Bills of Attainder ......................................................................................................... 361

Ex Post Facto Laws ..................................................................................................... 362

Scope of the Provision .......................................................................................... 362

Denial of Future Privileges to Past Offenders ................................................... 363

Changes in Punishment ...................................................................................... 363

Changes in Procedure .......................................................................................... 365

Obligation of Contracts ............................................................................................... 366

‘‘Law’’ Defined ....................................................................................................... 366

Status of Judicial Decisions ................................................................................ 366

‘‘Obligation’’ Defined ............................................................................................ 369

‘‘Impair’’ Defined .................................................................................................. 369

Vested Rights Not Included ................................................................................ 370

Public Grants That Are Not ‘‘Contracts’’ ............................................................ 370
61

Section 10. Powers Denied to the States—Continued

Clause 1. Not to Make Treaties, Coin Money, Pass Ex Post Facto Laws, Impair Contracts—Continued

Tax Exemptions: When Not ‘‘Contracts’’ ............................................................ 372

‘‘Contracts’’ Include Public Contracts and Corporate Charters ........................ 374

Corporate Charters: Different Ways of Regarding ............................................ 377

Reservation of Right to Alter or Repeal Corporate Charters ........................... 379

Corporation Subject to the Law and Police Power ............................................ 380

Strict Construction of Charters, Tax Exemptions ............................................. 381

Strict Construction and the Police Power .......................................................... 384

Doctrine of Inalienability as Applied to Eminent Domain, Taxing, and Police Powers ........................................................................................................ 385

Private Contracts ................................................................................................. 388

Remedy a Part of the Private Obligation ........................................................... 389

Private Contracts and the Police Power ............................................................. 392

Evaluation of the Clause Today .......................................................................... 395

Clause 2. Not to Levy Duties on Exports and Imports ................................................... 398

Duties on Exports and Imports .................................................................................. 399

Scope ..................................................................................................................... 399

Privilege Taxes ..................................................................................................... 400

Property Taxes ..................................................................................................... 400

Inspection Laws .................................................................................................... 401

Clause 3. Not to Lay Tonnage Duties, Keep Troops, Make Compacts, or Engage in

War ................................................................................................................................... 402

Tonnage Duties ............................................................................................................ 402

Keeping Troops ............................................................................................................ 403

Interstate Compacts .................................................................................................... 403

Background of Clause .......................................................................................... 403

Subject Matter of Interstate Compacts .............................................................. 404

Consent of Congress ............................................................................................. 405

Grants of Franchise to Corporations by Two States ......................................... 406

Legal Effects of Interstate Compacts ................................................................. 406

63

1 Among the best historical treatments are M. VILE, CONSTITUTIONALISM AND

THE SEPARATION OF POWERS (1967), and W. GWYN, THE MEANING OF THE SEPARATION OF POWERS (1965). 2Thus the Constitution of Virginia of 1776 provided: ‘‘The legislative, executive,

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

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

more than one of them, at the same time[.]’’ Reprinted in 10 W. SWINDLER (ed.),

SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS (1979), 52. See also

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

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

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

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

LEGISLATIVE DEPARTMENT

ARTICLE I

SECTION 1. All legislative Powers herein granted shall be

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

of a Senate and House of Representatives.

SEPARATION OF POWERS AND CHECKS AND

BALANCES

The Constitution nowhere contains an express injunction to

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

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

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

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

the blandishments and incursions of the others. The Framers drew

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

scholars and statesmen regarding the proper ordering in a system

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

The Theory Elaborated and Implemented

When the colonies separated from Great Britain following the

Revolution, the framers of their constitutions were imbued with the

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

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

Great Britain, and, as a consequence, violations of the separationof-powers doctrine by the legislatures of the States were common-
64 ART. I—LEGISLATIVE DEPARTMENT

Sec. 1—The Congress Legislative Powers

3 ‘‘In republican government the legislative authority, necessarily, predominates.’’ THE FEDERALIST No. 51 (J. Cooke ed. 1961), 350 (Madison). See also id., 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 S.Ct. 252, 273–2274, 277 (1991). But compare

id., 286 n. 3 (Justice White dissenting). 4The intellectual history through the state period and the Convention proceedings is detailed in G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776–1787

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

7 Id., Nos. 47–49, 325–343.

place events prior to the convening of the Convention. 3 As much

as theory did the experience of the States furnish guidance to the

Framers in the summer of 1787. 4

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

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

executive, and judicial; the conception that each branch performs

unique and identifiable functions that are appropriate to each; and

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

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

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

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

Senate in the appointment of executive officers and judges and in

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

turned in a powerful series of essays. 5

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

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

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

but the doctrine did not demand rigid separation. Montesquieu and

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

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

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

power of another department.’’ 6 That the doctrine did not demand

absolute separation provided the basis for preservation of separation of powers in action. Neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient. 7 Instead, the security against concentration of powers ‘‘consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.’’ Thus, ‘‘[a]mbition must be made to
ART. I—LEGISLATIVE DEPARTMENT 65

Sec. 1—The Congress Legislative Powers

8 Id., 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, 10

Wheat. (23 U.S.) 1, 42 (1825). 11See Mistretta v. United States, 488 U.S. 361, 415–416 (1989) (Justice Scalia

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

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

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

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

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

counteract ambition. The interest of the man must be connected

with the constitutional rights of the place.’’ 8

Institutional devices to achieve these principles pervade the

Constitution. Bicameralism reduces legislative predominance, while

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

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

The courts are assured independence through good behavior tenure

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

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

power in the other two branches. And so on.

Judicial Enforcement

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

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

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

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

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

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

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

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

strong separation position on behalf of the President, sometimes

with lack of success, 12 sometimes successfully.
66 ART. I—LEGISLATIVE DEPARTMENT

Sec. 1—The Congress Legislative Powers

13 Beginning with Buckley v. Valeo, 424 U.S. 1, 109–143 (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 Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50

(1982). 17Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States,

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

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

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

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

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

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

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 Contrarily, 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 were the results in this series of cases, the development in the cases of two separate and inconsistent doctrinal approaches to separation of powers issues occasioned the greatest

amount of commentary. The existence of the two approaches, which

could apparently be employed in the discretion of the Justices,

made difficult the prediction of the outcomes of differences over

proposals and alternatives in governmental policy. Significantly,

however, it appeared that the Court most often used a more strict

analysis in cases in which infringements of executive powers were

alleged and a less strict analysis when the powers of the other two

Branches were concerned. The special prosecutor decision, followed

by the decision sustaining the Sentencing Commission, may signal

the adoption of a single analysis, the less strict analysis, for all

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

to the Court’s dual doctrinal approach. 18
ART. I—LEGISLATIVE DEPARTMENT 67

Sec. 1—The Congress Legislative Powers

to a jury trial under the Seventh Amendment rather than strictly speaking a separation-of-powers question. Freytag v. CIR, 501 U.S. 868 (1991), pursued a straightforward appointments-clause analysis, informed by a separation-of-powers analysis

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

491 U.S. 440, 467 (1989) (concurring), Justice Kennedy would have followed the formalist approach, but he explicitly grounded it on the distinction between an express

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

has for some time viewed the standing requirement for access to judicial review as

reflecting a separation-of-powers component—confining the courts to their proper

sphere—Allen v. Wright, 468 U.S. 737, 752 (1984), but that view seemed largely superfluous to the conceptualization of standing rules. However, in Lujan v. Defenders

of Wildlife, 112 S.Ct. 2130, 2144–2146 (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., 2146–

2147(Justices Kennedy and Souter concurring). The cited cases do seem to demonstrate that a strongly formalistic wing of the Court does continue to exist. 19 ‘‘The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power . . . must be resisted. Although not ‘hermetically’

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

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

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

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

While the two doctrines have been variously characterized, the

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

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

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

demarcating the three branches from each other determined by the

differences among legislating, executing, and adjudicating. 19 The

functional approach emphasizes the core functions of each branch

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

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

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

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

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

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

conceptual premises. First, the action Congress had taken was leg-
68 ART. I—LEGISLATIVE DEPARTMENT

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

the bankruptcy court in Northern Pipeline was either an Article I court or an adjunct to an Article III court, the characterization of the entity is irrelevant and, in

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

the judicial power of the United States could be conferred on an entity not an Article III court. 25 CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide

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

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

rights, duties, and relations of persons outside the Legislative

Branch, and thus Congress had to comply with the bicameralism

and presentment requirements of the Constitution. 21 Second, the

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

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

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

General, who was subject to removal by Congress because this

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

Congress could act only by passing other laws. 23

On the same day Bowsher was decided through a formalist

analysis, the Court in Schor utilized the less strict, functional approach in resolving a challenge to the power of a regulatory agency

to adjudicate as part of a larger canvas a state common-law issue,

the very kind of issue that Northern Pipeline, in a formalist plurality opinion with a more limited concurrence, had denied to a nonArticle 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
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28To be sure, the appointments clause did specifically provide that Congress

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

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

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

Id., 685–696. 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 Id., 695 (quoting, respectively, Schor, supra, 478 U.S., 856, and Nixon v. Administrator of General Services, supra, 433 U.S., 443).

one, whether Congress had impermissibly undermined the role of

another branch without appreciable expansion of its own power.

While the Court, in applying one or the other analysis in separation of powers cases, had never indicated its standards for choosing one analysis over the other, beyond inferences that the formalist approach was proper when the Constitution fairly clearly committed a function or duty to a particular branch and the functional

approach was proper when the constitutional text was indeterminate and a determination must be made on the basis of the likelihood of impairment of the essential powers of a branch, the overall

results had been a strenuous protection of executive powers and a

concomitant relaxed view of the possible incursions into the powers

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

independent counsel case, the Court, again without stating why it

chose that analysis, utilized the functional standard to sustain the

creation of the independent counsel. 28 The 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.
70 ART. I—LEGISLATIVE DEPARTMENT

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

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

independent entity in the judicial branch. Id., 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., 413, 422–427. 31 Id., 382.

A notably more pragmatic, functional analysis suffused the

opinion of the Court when it upheld the constitutionality of the

Sentencing Commission. 30 Charged with promulgating guidelines

binding on federal judges in sentencing convicted offenders, the

seven-member Commission, three members of which had to be Article III judges, was made an independent entity in the judicial

branch. The President appointed all seven members, the judges

from a list compiled by the Judicial Conference, and he could remove from the Commission any member for cause. According to the

Court, its separation-of-powers jurisprudence is always animated

by the concerns of encroachment and aggrandizement. ‘‘Accordingly, we have not hesitated to strike down provisions of law that

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

and independence of one or another coordinate Branch.’’ 31 Thus, to

each of the discrete questions, the placement of the Commission,

the appointment of the members, especially the service of federal

judges, and the removal power, the Court carefully analyzed

whether one branch had been given power it could not exercise or

had enlarged its powers impermissibly and whether any branch

would have its institutional integrity threatened by the structural

arrangement.

Although it is possible, even likely, that Morrison and

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

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

functional approach.

BICAMERALISM

By providing for a National Legislature of two Houses, the

Framers, deliberately or adventitiously, served several functions.

Examples of both unicameralism and bicameralism abounded.

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

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

Parliament of Great Britain was based in two social orders, the hereditary aristocracy represented in the House of Lords and the
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Sec. 1—The Congress Legislative Powers

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

the presentment clause. Article I, § 7, cl. 2; and see id., 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 4 Wheat. (17 U.S.) 316, 405 (1819).

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

number of state legislatures, following the Revolution, were created

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

was, consisted of one house.

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

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

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

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

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

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

and it was important to have a precaution against the triumph of

transient majorities. Hence, the Constitution’s requirement that before lawmaking could be carried out bills must be deliberated in

two Houses, their Members beholden to different constituencies,

was in pursuit of this observation from experience. 33

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

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

Chambers are today less pronounced.

ENUMERATED, IMPLIED, RESULTING, AND INHERENT

POWERS

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

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

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

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

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

found it necessary to urge; that principle is now universally admitted.’’ 34
72 ART. I—LEGISLATIVE DEPARTMENT

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35 Infra, pp. 445–452. 36 206 U.S. 46, 82 (1907). 37 4 Wheat. (17 U.S.), 407. 38 Id., 411. 39 Id., 421. 40 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

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

That, however, ‘‘the executive power’’ is not confined to those

items expressly enumerated in Article II was asserted early in the

history of the Constitution by Madison and Hamilton alike and is

found in decisions of the Court; 35 a similar latitudinarian conception of ‘‘the judicial power of the United States’’ was voiced in Justice Brewer’s opinion for the Court in Kansas v. Colorado. 36 But

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

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

these as set forth in his McCulloch v. Maryland opinion. He asserts

that ‘‘the sword and the purse, all the external relations and no inconsiderable portion of the industry of the nation, are intrusted to

its government;’’ 37 he characterizes ‘‘the power of making war,’’ of

‘‘levying taxes,’’ and of ‘‘regulating commerce’’ as ‘‘great, substantive and independent powers;’’ 38 and the power conferred by

the ‘‘necessary and proper’’ clause embraces, he declares, all legislative ‘‘means which are appropriate’’ to carry out the legitimate

ends of the Constitution, unless forbidden by ‘‘the letter and spirit

of the Constitution.’’ 39

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

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

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

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

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

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

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

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

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

doctrine of enumerated powers: the power to legislate in effectuation of the ‘‘rights expressly given, and duties expressly enjoined’’ by the Constitution; 44 the power to impart to the paper cur-
ART. I—LEGISLATIVE DEPARTMENT 73

Sec. 1—The Congress Legislative Powers

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

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

U.S.) 1, 42 (1825).

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

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

source of much scholarly and judicial controversy, but, although

limited, it has not been repudiated.

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

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

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

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

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

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

these developments in some of the phraseology above quoted from

his opinion in McCulloch v. Maryland.

DELEGATION OF LEGISLATIVE POWER

Origin of the Doctrine of Nondelegability

‘‘That the legislative power of Congress cannot be delegated is,

of course, clear.’’ 51 This 1932 statement has never been literally

true, the delegation at issue in the very case in which the statement was made was upheld, and the Court in recent years has felt

little constrained to much more than bow in the direction of the

doctrine.Yet the doctrine of nondelegation of legislative powers and

the permissible exception of delegation accompanied by standards
74 ART. I—LEGISLATIVE DEPARTMENT

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52For particularly useful discussions of delegations, see 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE (St. Paul: 2d ed., 1978), Ch. 3; L. JAFFE, JUDICIAL CONTROL

OF ADMINISTRATIVE ACTION (Boston: 1965), ch. 2. 53Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 10 Wheat. (23

U.S.) 1, 42 (1825). 54 Carter v. Carter Coal Co., 298 U.S. 238, 310–312 (1936). Since the separationof-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 the delegation by state legislatures of power to others which the legislature might have exercised directly. E.g.,

Eubank v. City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road District, 240 U.S. 242 (1916). 55 J. LOCKE, SECOND TREATISE ON GOVERNMENT (London: 1691), Ch. 11, 141. 56 276 U.S. 394, 405–406 (1928).

have so settled a place in constitutional jurisprudence that notice

must be given at some length. 52

At least three distinct ideas contributed to the development of

the doctrine that legislative power cannot be delegated. The first

idea is the doctrine of separation of powers, the idea that the lawmaking power is vested in the legislative branch, the law-executing

power in the executive branch, and the law-interpreting power in

the judicial branch. 53 Is it not a violation of the doctrine to permit

the law-making branch to divest itself of some of its power and confer it on one or the other of the other branches or to particular offices in the other branch?

The second idea is a due process conception precluding the

transfer of regulatory functions to private persons, a distinct specie

of the delegation doctrine not relevant usually in the field of administration, of delegation to another public agency. 54

The third idea concerns the maxim ‘‘delegata potestas non

potest delegari,’’ which John Locke borrowed from agency and offered as a principle of political science. 55 In J. W. Hampton, Jr.,

& Co. v. United States, 56 Chief Justice Taft explained the origin

and limitations of this phrase as a postulate of constitutional law.

‘‘The well-known maxim ‘delegata potestas non potest delegari,’ applicable to the law of agency in the general and common law, is

well understood and has had wider application in the construction

of our Federal and State Constitutions than it has in private law.

The Federal Constitution and State Constitutions of this country

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

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

by law it attempts to invest itself or its members with either executive power or judicial power.’’
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Sec. 1—The Congress Legislative Powers

57Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).

58Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 41 (1825).

59 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).

60 Id., 10 Wheat. (23 U.S.), 42.

61 Id., 41.

But whatever the source or combination of sources of the doctrine, decisions of the Court accepting without comment delegations of vast powers to administrative or executive agencies constitute a de facto recognition that Congress in the exercise of its

granted powers, in conjunction with its necessary and proper

power, often cannot either foresee or resolve problems of application of general laws to specific situations. Thus, ‘‘[d]elegation by

Congress has long been recognized as necessary in order that the

exertion of legislative power does not become a futility.’’ 57

Delegation Which Is Permissible

‘‘It will not be contended,’’ wrote Chief Justice Marshall in

1825, ‘‘that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But

congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.’’ 58 ‘‘This is not to say,’’ said

Chief Justice Taft, ‘‘that the three branches are not co-ordinate

parts of one government and that each in the field of its duties may

not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field

of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of

that assistance must be fixed according to common sense and the

inherent necessities of the governmental co-ordination.’’ 59 Chief

Justice Marshall frankly noted ‘‘that there is some difficulty in discerning the exact limits’’ on the legislative power to delegate. Thus,

‘‘the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.’’ 60

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. 61 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’’ is impressively modern law.
76 ART. I—LEGISLATIVE DEPARTMENT

Sec. 1—The Congress Legislative Powers

62The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813). 63 10 Wheat. (23 U.S.) 1 (1825). 64 Act of May 8, 1792, § 2, 1 Stat. 275, 276. 65The power to promulgate rules of civil procedure was conferred by the Act of

June 19, 1934, 48 Stat. 1064, now 28 U.S.C. § 2072; the power to promulgate rules

of criminal procedure was conferred by the Act of June 29, 1940, 54 Stat. 688, now

18 U.S.C. § 3771. In both instances Congress provided for submission of the rules

to it with the power presumably to change or to veto the rules. Additionally, Congress has occasionally legislated rules itself. E.g., 82 Stat. 197 (1968), 18 U.S.C.

§§ 3501–02 (admissibility of confessions in federal courts). 66 In re Kollock, 165 U.S. 526 (1897). 67 Id., 533. 68 United States v. Bailey, 9 Pet. (34 U.S.) 238 (1835); Caha v. United States,

152 U.S. 211 (1894). 69 Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United States v.

Grimaud, 220 U.S. 506 (1911) (executive officials to make rules governing use of forest reservations); ICC v. Goodrich Transit Co., 224 U.S. 194 (1912) (prescribing

methods of accounting for carriers in interstate commerce).

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. 62

Filling Up the Details.—At issue in Wayman v. Southard 63

was the contention that Congress had unconstitutionally delegated

power to the federal courts to establish rules of practice, provided

such rules were not repugnant to the laws of the United States. 64

Chief Justice Marshall agreed that the rule-making power was a

legislative function and that Congress could have formulated the

rules itself, but he denied that the delegation was impermissible.

Since then, of course, Congress has authorized the Supreme Court

to prescribe rules of procedure for the lower federal courts. 65 Filling up the details of statutes was long a popular version of the nature of permissible delegations.

Thus, when Congress required the manufacturers of oleomargarine to have their packages ‘‘marked, stamped and branded

as the Commissioner of Internal Revenue . . . shall prescribe,’’ the

Court sustained the conviction of one selling his goods without the

markings against his objection that he was prosecuted not for violation of law but for violation of a regulation. 66 ‘‘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.’’ 67

Kollock was not the first such case, 68 but it was to be followed by

a multitude of delegations and the sustaining of them. Soon thereafter the Court on the same theory upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States. 69

Contingent Legislation.—An entirely different problem

arises when, instead of directing another department of govern-
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Sec. 1—The Congress Legislative Powers

70 7 Cr. (11 U.S.) 382 (1813). 71 Id., 388. 72 143 U.S. 649 (1892). 73 Id., 691. 74 Id., 692, 693.

ment 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 elsewhere than in the first theory.

It is to be found in an even earlier case, The Brig Aurora, 70 where

the revival of a law upon the issuance of a presidential proclamation was upheld. 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 which 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.’’ 71

The theory was utilized again in Field v. Clark, 72 where the

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

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

other countries imposed upon agricultural or other products of the

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

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

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

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

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

the execution of statutes relating to trade and commerce with other

nations;’’ 73 (2) that the act did ‘‘not, in any real sense, invest the

President with the power of legislation. . . . Congress itself prescribed, in advance, the duties to be levied, . . . while the suspension lasted. Nothing involving the expediency or the just operation

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

. . . He had no discretion in the premises except in respect to the

duration of the suspension so ordered.’’ 74 By similar reasoning, the

Court sustained the flexible provisions of the Tariff Act of 1922
78 ART. I—LEGISLATIVE DEPARTMENT

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75 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). 76Mistretta v. United States, 488 U.S. 361, 372 (1989). ‘‘Delegation by Congress

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

does not become a futility.’’ Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,

398 (1940). 77 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). 78 Id., 406. 79 Id., 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). 80See Mistretta v. United States, 488 U.S. 361, 371–379 (1989) (extensively reviewing doctrinal foundation and case law). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218–224 (1989); Touby v. United States, 500 U.S. 160, 164–

168 (1991).

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. 75

The Effective Demise of the Nondelegation Doctrine

‘‘[O]ur jurisprudence has been driven by a practical understanding 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.’’ 76 The modern doctrine may be traced in its inception to

the 1928 case in which the Court, speaking through Chief Justice

Taft, upheld congressional delegation to the President of the authority to set tariff rates that would equalize production costs in

the United States and competing countries. 77 Although formally

looking to 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. 78 This vague statement was elaborated somewhat in the statement that the Court

would sustain delegations whenever Congress provided an ‘‘intelligible principle’’ to which the President or an agency must conform. 79

The Regulatory State.—Except for two Depression-era cases

in which standards were found to be absent, the Court has never

voided as impermissible a congressional delegation. 80 The now familiar pattern of regulation of important segments of the economy

by boards or commissions, which combine in varying proportions

the functions of all three departments of government, was first established by the States in the field of railroad rate regulation. Discovering that direct action was impracticable, the state legislatures

created commissions to deal with the problem. One of the pioneers

in this development was Minnesota, whose supreme court justified
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81The Court reversed the decision of the state supreme court on the grounds

that the rates fixed by the commission were not subject to judicial review, a due

process violation, but the opinion implicitly sanctioned the exercise of ratemaking

powers by such bodies. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134

U.S. 418 (1890). 82 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). 83State v. Chicago, Milwaukee & St. Paul Ry. Co., 38 Minn. 288, 301, 37 N.W.

782, 788 (1888), revd, on other grounds, 134 U.S. 418 (1890). 84 ICC v. Louisville & Nashville R.R., 227 U.S. 88 (1913); New York v. United

States, 331 U.S. 284, 340–350 (1947), and cases cited. See also New York v. United

States, 342 U.S. 882 (1951); American Trucking Assns. v. Atchison, Topeka & Santa

Fe Ry., 387 U.S. 397 (1967). 85 New York Central Securities Co. v. United States, 287 U.S. 12, 25 (1932). 86Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266

(1933). 87 National Broadcasting Co. v. United States, 319 U.S. 190 (1943). 88 United States v. Southwestern Cable Co., 392 U.S. 157 (1968) (regulation of

cable television under the 1934 Communications Act). See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (approving promulgation of rules on the ‘‘fairness doctrine’’ and ‘‘right to reply’’ privilege in the absence of congressional enactment).

the practice in an opinion, which, with the implied 81 and later the

explicit, 82 endorsement of the United States Supreme Court, practically settled the law on this point: ‘‘If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the

subject, and who, after investigation of the facts, can fix rates with

reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates

to suit the ever-varying conditions of traffic.’’ 83 Contemporaneously, Congress created the Interstate Commerce Commission to

regulate the rates and practices of railroads with respect to interstate commerce. Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate-making

power to the Commission, it has repeatedly affirmed rate orders issued by that agency. 84

Breathtaking has been the breadth of delegations sustained.

Congress has given the Interstate Commerce Commission the responsibility to approve railroad consolidations found to be in the

‘‘public interest,’’ 85 and conferred powers on the Federal Radio

Commission 86 and the Federal Communications Commission 87 to

license broadcasting stations as the ‘‘public convenience, interest

and necessity’’ may require. In the field of communications still, the

exercise of power by the FCC, pursuant to statute, to exert jurisdiction and authority over an industry that did not exist at the time

Congress enacted the statute and that was unforeseen by Congress

has been found to be valid. 88 The Supreme Court directed a regulatory agency acting under delegated powers to exercise its own

judgment about whether competition or restraint would be in the
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89FCC v. RCA Communications, 346 U.S. 86 (1953). 90FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). 91 Yakus v. United States, 321 U.S. 414 (1944) (wartime delegation to administrator to fix commodity prices that would be fair and equitable); Lichter v. United

States, 334 U.S. 742 (1948) (wartime delegation to determine excessive profits by

defense industries). See also Amalgamated Meat Cutters & Butcher Workmen v.

Connally, 337 F.Supp. 737 (D.D.C. 1971) (three-judge court) (upholding imposition

of nationwide price and wage controls by President upon general delegation). 92 American Light & Power Co. v. SEC, 329 U.S. 90 (1946) (upholding delegation of authority to Securities and Exchange Commission to prevent unfair or inequitable distribution of voting power among security holders). 93 488 U.S. 361 (1989). 94 Id., 378. 95 E.g., Permian Basin Area Rate Cases, 390 U.S. 747 (1968); American Trucking Assns. v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967). 96 Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842–845, 865–866 (1984) (‘‘[A]n

agency to which Congress has delegated policymaking responsibilities may, within

public interest in the communications field rather than to attempt

to extrapolate a principle favoring one or the other from the body

of congressional law. 89

The Court has upheld the delegation to the Federal Power

Commission of authority to determine ‘‘just and reasonable’’

rates. 90 Agencies have been held properly to have received power

to determine whether rates and charges were too high or excessive. 91 Regulation of corporate conduct has been extended to close

supervision of activity. 92

In Mistretta v. United States, 93 the Court approved congressional delegations to the Sentencing Commission, an independent

agency in the judicial branch, to develop and promulgate guidelines

binding federal judges and cabining their discretion in sentencing

criminal defendants. Although the Court enumerated the standards

Congress had provided, it admitted that significant discretion existed with respect to making policy judgments about the relative

severity of different crimes and the relative weight of the characteristics of offenders that are to be considered, but it was forthright

in stating that delegations may carry with them ‘‘the need to exercise judgment on matters of policy.’’ 94

That this latter observation is indubitably true is revealed in

many case results. Thus, the Court has upheld complex economic

regulations of industries in instances in which the agencies had

first denied possession of such power, had unsuccessfully sought

authorization from Congress, and had finally acted without congressional guidance. 95 It has also recognized that when Administrations changes, new officials may have been conferred enough

discretion so that they can change agency policies, often to a considerable degree, so that both previous and present agency policies

may be consistent with congressional delegations. 96
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the limits of that delegation, properly rely upon the incumbent administration’s

views of wise policy to inform its judgments.’’ Id., 865). See also Motor Vehicle

Mfgrs. Assn. v. State Farm Mutual Automobile 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).

97Lichter v. United States, 334 U.S. 742, 778–779 (1948).

98Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989). In National Cable

Television Ass. v. United States, 415 U.S. 336, 342 (1974), and FPC v. New England

Power Co., 415 U.S. 345 (1974), the Court had appeared to suggest that delegation

of the taxing power would be fraught with constitutional difficulties. How this conclusion could have been thought viable after the many cases sustaining delegations

to fix tariff rates, which are in fact and law taxes, J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); and see FEA

v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (delegation to President to raise license

‘‘fees’’ on imports when necessary to protect national security), is difficult to discern.

Nor should doubt exist respecting the appropriations power. See Synar v. United

States, 626 F.Supp. 1374, 1385–1386 (D.D.C.) (three-judge court), affd. on other

grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).

99 City of New York v. FCC, 486 U.S. 57, 63–64 (1988); Louisiana PSC v. FCC,

476 U.S. 355, 368–369 (1986); Fidelity Federal Savings & Loan Assn. v. de la

Cuesta, 458 U.S. 141, 153–154 (1982).

100 E.g., The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813).

101 E.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field

v. Clark, 143 U.S. 649 (1892).

102 312 U.S. 126 (1941).

Despite some dicta to the contrary, it appears that there is no

power Congress cannot delegate. ‘‘[A] constitutional power implies

a power of delegation of authority under it sufficient to effect its

purposes.’’ 97 Denying that it had ever suggested that the taxing

power was nondelegable, the Court has placed that congressional

authority on the same plane of permissible delegation. 98 Nor is

there a problem with the fact that in exercising a delegated power

the President or another officer may effectively suspend or rescind

a law passed by Congress. A rule or regulation properly promulgated under authority received from Congress is law and under the

supremacy clause of the Constitution can preempt state law, 99 and

likewise it can supersede a federal statute. Early cases sustained

giving the President upon the finding of certain facts to revive or

suspend a law, 100 and the President’s power to raise or lower tariff

rates equipped him to alter statutory law. 101 Similarly, in Opp Cotton Mills v. Administrator, 102 Congress’ decision to delegate to the

Wage and Hour Administrator of the Labor Department the authority, after hearings and findings by an industry committee appointed by him, to establish a minimum wage in particular industries greater than the statutory minimum but no higher than a

prescribed figure was sustained. 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 proce-
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103See 18 U.S.C. §§ 3771, 3772 (criminal procedure); 28 U.S.C. § 2072 (civil procedure); id., § 2076 (evidence). In Davis v. United States, 411 U.S. 233, 241 (1973),

the Court referred in passing to the supersession of statutes without evincing any

doubts about the validity of the results. When Congress amended the Rules Enabling Acts in the 100th Congress, P.L. 100–702, 102 Stat. 4642, 4648, amending 28

U.S.C. § 2072, the House would have altered supersession, the Senate disagreed, the

House acquiesced, and the old provision remained. See H.R. 4807, H.Rept.No. 100–

889, 100th Cong., 2d sess. (1988), 27–29; 134 CONG REC. 23573–23584 (1988); Id.,

31051–31052 (Sen. Heflin); Id., 31872 (Rep. Kastenmeier). 104 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). 105 American Textile Mfgrs. Inst. v. Donovan, 452 U.S. 490, 543 (1981) (Chief

Justice Burger dissenting); Industrial Union Dept. 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, 625–626

(1963) (Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, purportedly to avoid constitutional problems with delegations. E.g., Industrial Union Dept., supra, 645–646 (plurality opinion); National Cable Television

Assn. v. United States, 415 U.S. 336, 342 (1974). 106 E.g., Mistretta v. United States, 488 U.S. 361, 371–379 (1989). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220–224 (1989); Touby v. United

States, 500 U.S. 160, 164–168 (1991). While expressing considerable reservations

about the scope of delegations, Justice Scalia, in Mistretta, supra, 415–416, conceded

both the inevitability of delegations and the inability of the courts to police them. 107 293 U.S. 388 (1935).

dure and of evidence it directed that such rules supersede previously enacted statutes with which they conflicted. 103

Recent concerns in the scholarly literature with respect to the

scope of the delegation doctrine, 104 have been reflected within the

judicial writings of some of the Justices. 105 Nonetheless, the

Court’s most recent decisions evidence no doubt of the constitutional propriety of very broad delegations, 106 and the practice will

doubtlessly remain settled.

Standards.—Critical to the Court’s explanations of the permissibility of legislative delegations has been the necessity of ‘‘intelligible principles’’ or ‘‘standards’’ to guide the agency or official

in the performance of the task Congress has set. And indeed the

only two instances in which the Court has found an unconstitutional delegation to another governmental agency have involved

grants of discretion to administrators that the Court found to be

unbounded. Thus, in Panama Refining Co. v. Ryan, 107 the President was authorized to prohibit the shipment in interstate commerce of ‘‘hot oil’’—oil produced in excess of state quotas. The statute was silent with regard to when and under what circumstances

he should exercise the power and the Court, only Justice Cardozo

dissenting, found that the stated policy of the legislation contained
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108 It is not without note that 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 (New

York: 4th ed. 1958), 394–395. 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. 109 295 U.S. 495 (1935). 110 48 Stat. 195 (1933), Tit. I, § 1. 111 295 U.S., 541–542. 112Fahey v. Mallonee, 332 U.S. 245 (1947). 113 Id., 250. 114 Ibid. Indeed, the Court has frequently deprecated the broader holdings of the

two cases by pointing out that Panama Refining criminalized acts not previously

punishable offenses and that Schechter involved delegations to private individuals.

Mistretta v. United States, 488 U.S. 361, 373 n. 7 (1989).

contrary directives. 108 While the grant of power in Panama Refining was narrow, the grant, in A.L.A. Schechter Poultry Corp. v.

United States, 109 was sweeping. The National Industrial Recovery

Act devolved on the executive branch the power to formulate codes

of ‘‘fair competition’’ for all industry in order to promote ‘‘the policy

of this title.’’ The policy was ‘‘to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, . . . and otherwise to rehabilitate industry. . . .’’ 110 Though much of the opinion is written in terms of

the failure of these policy statements to provide meaningful standards, it seems more likely the Court was in fact concerned with the

‘‘virtually unfettered’’ discretion conferred on the President of ‘‘enacting laws for the government of trade and industry throughout

the country.’’ 111

This conclusion is bolstered by the Court’s reversal of a lower

federal court, which had literally applied the Schechter language to

void a delegation to the Federal Home Loan Bank Commissioner

of power to issue regulations for the appointment of conservators

or receivers to take charge of banking associations. 112 The Act contained no standards, no declarations of policy, no guidance to the

Commissioner. Nevertheless, the Court unanimously sustained the

delegation. ‘‘It may be,’’ said Justice Jackson, ‘‘that explicit standards . . . would have been a desirable assurance of responsible administration.’’ 113 But while desirable, standards were not a constitutional necessity, since ‘‘[t]he provisions are regulatory’’ and

deal with but one enterprise, banking, the problems of which are

well known and the remedies authorized are 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.’’ 114
84 ART. I—LEGISLATIVE DEPARTMENT

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115Tagg Bros. & Moorhead v. United States, 280 U.S. 420 (1930). 116 New York Central Securities Corp. v. United States, 287 U.S. 12 (1932). 117Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266

(1933). 118FTC v. Gratz, 253 U.S. 421 (1920). 119 319 U.S. 190 (1943). 120 Id., 216. 121Similarly, 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. den. sub nom.,

Tobacco Institute v. FCC, 396 U.S. 842 (1969). 122 307 U.S. 533 (1939). 123 Intermountain Rate Cases, 234 U.S. 476 (1914); American Trucking Assns.

v. United States, 344 U.S. 298 (1953); FCC v. RCA Communications, 346 U.S. 86

Where the Court has determined that standards are necessary,

it has been notably successful in finding them. Standards have

been ascertained to exist in such formulations as ‘‘just and reasonable,’’ 115 ‘‘public interest,’’ 116 ‘‘public convenience, interest, or necessity,’’ 117 and ‘‘unfair methods of competition.’’ 118 Thus, in National Broadcasting Co. v. United States, 119 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.’’ 120 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. 121

On the other hand, the standards may be set out in greater detail and with greater relevancy to the action taken but may in fact

limit discretion not at all. In United States v. Rock Royal Cooperatives, 122 the Court sustained the delegation to the Secretary

of Agriculture of the power to fix the prices of six commodities if

and when he chose to exercise the power with regard to all or some

of the commodities. The Act provided that the price to be fixed

should afford farmers purchasing power equivalent to that they

had enjoyed in a base period, but the Secretary was also to protect

the interest of the consumer by a gradual increase in prices in accordance with the public interest and current consumption. The

majority of the Court thought that the Act stated the purposes

which Congress had hoped to achieve and set out standards by

which it hoped the purposes could be realized.

Numerous delegations have been sustained by the Court in

both war and peacetime which have vested in administrative agencies and executive officers vast powers over the economic life of the

country. 123 By and large, however, the Court has paid scant atten-
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(1953): Yakus v. United States, 321 U.S. 414 (1944). 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 complied with broad national controls, the lower court decision sustaining the action was not even appealed to the Supreme Court. Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp. 737 (D.D.C.

1971) (three-judge court). 124 373 U. S. 546 (1963). 125 Id., 593. 126 Id., 594. 127 Id., 625. 128 334 U.S. 742 (1948). 129 § 403(a)(4) of the Act, as added by Tit. 8 of the Act of October 21, 1942, 56

Stat. 798, 982. 130 § 403(a)(4) of the Act, as amended by Tit. 7 of the Act of February 25, 1944,

58 Stat. 21, 78. 131 334 U.S., 783.

tion to delegation as a constitutional issue in these circumstances.

An exception is Arizona v. California, 124 in which a divided Court

sustained the delegation of total discretion to the Secretary of the

Interior to apportion water among the southwestern States in

times of shortage. The statute prescribed no formula or standards,

and the majority agreed that he was entirely free ‘‘to choose among

the recognized methods of apportionment or to devise reasonable

methods of his own,’’ 125 the Secretary being required to reach ‘‘an

informed judgment in harmony with the Act, the best interests of

the Basin States, and the welfare of the Nation.’’ 126 Three dissenters noted they had ‘‘the gravest constitutional doubts’’ about the

delegation. 127

Administrative implementation of the congressional enactment

may well provide the intelligible standard. Thus, in Lichter v. United States, 128 the Court sustained the delegation of power to the

War Department to recover ‘‘excessive profits’’ earned on war contracts. The first Act contained no definition, but the second defined

‘‘excessive profits’’ as meaning ‘‘any amount of a contract or subcontract price which is found as a result of renegotiation to represent excessive profits.’’ 129 The definition was essayed in the light

of standards for determining ‘‘excessiveness’’ worked out by the

War Department and in 1944 130 Congress specifically adopted

these standards. Yet, the Court upheld the validity of the delegation as to proceeds earned prior to this 1944 adoption. ‘‘The statutory term ‘excessive profits,’ in its context, was a sufficient expression of legislative policy and standards to render it constitutional.’’ 131

It seems therefore reasonably clear that the Court does not

really require much in the way of standards from Congress. The

minimum which the Court seems, but only sometimes, to insist on

is that Congress employ a delegation which ‘‘sufficiently marks the
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132 Yakus v. United States, 321 U.S. 414, 425 (1944). 133 Id., 426; Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218 (1989);

American 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). 134 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. 135 E.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Wisconsin v. Constantineau, 400

U.S. 433 (1971). 136 299 U.S. 304, 312 (1936). 137 Id., 319–322. For a particularly strong, recent assertion of the point, see

Haig v. Agee, 453 U.S. 280, 291–292 (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).

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.’’ 132 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. 133 This requirement may

be met through the provisions of the Administrative Procedure

Act, 134 but where the Act is inapplicable or where the Court sees

the necessity for exceeding the provisions, due process can supply

the safeguards of required hearing, notice, supporting statements,

and the like. 135

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 indicated in

United States v. Curtiss-Wright Corp. 136 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 was largely free of the

constitutional constraints imposed by the nondelegation doctrine

when he acted in foreign affairs. 137 The Curtiss-Wright doctrine

has waxed and waned over the years, and the viability of this distinction is doubtful.

Delegations to the States.—From the beginning, Congress

enacted hundreds of statutes that contained provisions authorizing
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138See 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 (1938), 1187. 139Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539 (1842); Kentucky v. Dennison,

24 How. (65 U.S.) 66 (1861). The last doubt as to compulsion was not definitively

removed until Puerto Rico v. Branstad, 483 U.S. 219 (1987). 140 245 U.S. 366, 389 (1918). 141 E.g., P.L. 94–435, title III, 90 Stat. 1394, 15 U.S.C. § 15c (state attorneys

general may bring antitrust parens patriae actions); Medical Waste Tracking Act,

P.L. 100–582, 102 Stat. 2955, 42 U.S.C. § 6992f (States may impose civil and possibly criminal penalties against violators of the law). 142See 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 Assn. v. Pacific Northwest Electric Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986), cert. den., 479 U.S. 1059

(1987). 143 Currin v. Wallace, 306 U.S. 1 (1939); United States v. Rock Royal Co-operative, 307 U.S. 533, 577 (1939); Wickard v. Filburn, 317 U.S. 111, 115–116 (1942);

United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. den., 493 U.S. 1094

(1990). 144 Currin v. Wallace, 306 U.S. 1, 15, 16 (1939). 145 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

Schechter was predominantly a lack-of-standards case, but the Court more recently

state officers to enforce and execute federal laws. 138 Challenges to

the practice were uniformly rejected. While the Court early expressed its doubt that Congress could compel state officers to act,

it entertained no such thoughts about the propriety of authorizing

them to act if they chose. 139 When, in the Selective Draft Law

Cases, 140 the contention was made that the act was invalid because of its delegations of duties to state officers, the argument was

rejected as ‘‘too wanting in merit to require further notice.’’ Congress continues to empower state officers to act, 141 and Presidents

now object on grounds that the state officers, not having been appointed pursuant to the appointments clause, may not execute federal laws, rather than offer delegation arguments. 142

Delegation to Private Persons.—Statutory delegations to

private persons in the nature of contingency legislation have

passed Court tests. Thus, statutes providing that restrictions upon

the production or marketing of agricultural commodities are to become operative only upon a favorable vote by a prescribed majority

of those persons affected have been upheld. 143 The rationale of the

Court is that such a provision does not involve any delegation of

legislative authority, since Congress has merely placed a restriction

upon its own regulation by withholding its operation unless it is

approved in a referendum. 144

Less consistency has been displayed with regard to the more

modern delegations. The Schechter case condemned the involvement of private trade groups in the drawing up of binding codes

of competition in conjunction with governmental agencies. 145 In
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has recurred to the private delegation issue. Mistretta v. United States, 488 U.S.

361, 373 n. 7 (1989). 146 298 U.S. 238 (1936). But compare Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381 (1940). 147St. Louis, Iron Mt. & Southern Ry. Co. v. Taylor, 210 U.S. 281 (1908). 148 192 U.S. 470 (1904). 149 210 U.S., 287. 150 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). 151 But see Schweiker v. McClure, 456 U.S. 188 (1982) (hearing officer appointed by private insurance carrier adjudicating Medicare claims); Association of

Amer. Physicians & Surgeons v. Weinberger, 395 F.Supp. 125 (N.D.Ill.) (three-judge

court) (delegation to Professional Standards Review Organization), affd. per curiam,

423 U.S. 975 (1975); Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th

Cir. 1980) (Secretary required to adopt interim OSHA standards produced by private organization). Again, the Executive Branch objections to these kinds of delegations have involved appointments clause arguments, see supra, n. 142, rather than

delegation issues per se. 152 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., 288–289, and ignored by the majority. 153Kent v. Dulles, 357 U.S. 116, 129 (1958).

Carter v. Carter Coal Co., 146 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 earlier the Court had upheld a statute

which 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. 147 The Court simply

cited Buttfield v. Stranahan, 148 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. 149 Similarly, the Court had earlier still enforced

statutes that gave legal effect to local customs of miners with respect to claims on public lands. 150

The issue has remained muddled since Carter Coal, the Court

having had no opportunity to attempt to reconcile the two lines of

cases. 151

Delegation and Individual Liberties.—It has been argued

in separate opinions by some Justices that delegations by Congress

of power to affect the exercise of ‘‘fundamental freedoms’’ by citizens must particularly be scrutinized to require the exercise of a

congressional judgment about meaningful standards. 152 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.’’ 153 The
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154Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968).

More recently, the Court has eschewed even this limited mode of construction. Haig

v. Agee, 453 U. S. 280 (1981).

155 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.), sustained in Vergara v. Hampton, 581 F. 2d 1281 (C. A.

7, 1978).

156 United States v. Grimaud, 220 U.S. 506 (1911). See also Touby v. United

States, 500 U.S. 160 (1991).

157L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944).

158 United States v. Eaton, 144 U.S. 677 (1892).

159L.P. Steuart & Bro. v. Bowles, 322 U.S. 398 (1944).

160M. Kraus & Bros. v. United States, 327 U.S. 614 (1946).

standard practice, indeed, of the majority has been to interpret

narrowly the delegation so as to avoid constitutional problems. 154

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 its own interests, and if the action could be justified by other interests the office with responsibility for promoting

those interests must take the action. 155

Punishment of Violations

If Congress so provides, violations of valid administrative regulations may be punished as crimes. 156 But the penalties must be

provided in the statute itself; additional punishment cannot be imposed by administrative action. 157 In an early case, the Court held

that a section prescribing penalties for any violation of a statute

did not warrant a prosecution for wilful disobedience of regulations

authorized by, and lawfully issued pursuant to, the act. 158 Without

disavowing this general proposition, the Court, in 1944, upheld a

suspension order issued by the OPA whereby a dealer in fuel oil

who had violated rationing regulations was forbidden to receive or

deal in that commodity. 159 Although such an order was not explicitly authorized by statute, it was sustained as being a reasonable

measure for effecting a fair allocation of fuel oil, rather than as a

means of punishment of an offender. In another OPA case, the

Court ruled that in a criminal prosecution, a price regulation was

subject to the same rule of strict construction as a statute, and that

omissions from, or indefiniteness in, such a regulation, could not be

cured by the Administrator’s interpretation thereof. 160
90 ART. I—LEGISLATIVE DEPARTMENT

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161Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 159–166 (1926); M. DIMOCK, CONGRESSIONAL INVESTIGATING COMMITTEES (Baltimore: 1929), ch. 2. 162 3 ANNALS OF CONGRESS 490–494 (1792); 3 A. HINDS’ PRECEDENTS OF THE

HOUSE OF REPRESENTATIVES (Washington: 1907), 1725. 163McGrain v. Daugherty, 273 U.S. 135, 174–175 (1927).

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. 161 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.’’ 162

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.’’ 163

And in a 1957 opinion generally hostile to the exercise of the

investigatory power in the post-War years, Chief Justice Warren
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164Watkins v. United States, 354 U.S. 178, 187 (1957). 165 Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also Eastland v.

United States Servicemen’s Fund, 421 U.S. 491, 503–507 (1975). 166Kilbourn v. Thompson, 103 U.S. 168, 189 (1881). 167McGrain v. Daugherty, 273 U.S. 135, 170 (1927). The internal quotations are

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

did not question the basic power. ‘‘The power of the Congress to

conduct investigations is inherent in the legislative process. That

power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy

them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.’’ 164 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.’’ 165

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.’’ 166 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.’’ 167

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.
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168 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). 169 8 CONG. DEB. 2160 (1832). 170 13 CONG. DEB. 1057–1067 (1836). 171 H.R. Rep. No. 194, 24th Congress, 2d sess., 1, 12, 31 (1837). 172 CONG. GLOBE, 36th Congress, 1st sess., 1100–1109 (1860). 173 103 U.S. 168 (1881). 174The 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 judiInvestigations 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. 168 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. 169 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, . . .’’ 170 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. 171 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. 172 Notwithstanding this firmly established legislative practice, the Supreme Court took a narrow view of the

power in the case of Kilbourn v. Thompson. 173 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. 174 But nearly half
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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). 175 273 U.S. 135, 177, 178 (1927). 176We consider elsewhere the topic of executive privilege, the claimed right of

the President and at least some of his executive branch officers to withhold from

Congress information desired by it or by one of its committees. Although the issue

has been one of contention between the two branches of Government since Washington’s refusal in 1796 to submit certain correspondence to the House of Representatives relating to treaty negotiations, it has only recently become a judicial issue. 177 In re Chapman, 166 U.S. 661 (1897). 178 279 U.S. 597 (1929). 179 4 CONG. DEB. 862, 868, 888, 889 (1827). 180Kilbourn v. Thompson, 103 U.S. 168 (1881).

a century later, in McGrain v. Daugherty, 175 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. 176

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. 177 The

decision in Barry v. United States ex rel. Cunningham 178 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,’’ 179 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. 180
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181 In re Chapman, 166 U.S. 661, 670 (1897). 182 273 U.S. 135, 178 (1927). 183 279 U.S. 263 (1929). 184 Id., 295. 185 Id., 294. 186The first case so holding is ICC v. Brimson, 154 U.S. 447 (1894), which asserts that inasmuch as Congress could itself have made the inquiry to appraise its

regulatory activities it could delegate the power of inquiry to the agency to which

it had delegated the regulatory function.

Subsequent cases, however, have given the Congress the benefit of a presumption that its object is legitimate and related to the

possible enactment of legislation. Shortly after Kilbourn, the Court

declared that ‘‘it was certainly not necessary that the resolution

should declare in advance what the Senate meditated doing when

the investigation was concluded’’ in order that the inquiry be under

a lawful exercise of power. 181 Similarly, in McGrain v.

Daugherty, 182 the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating. Then, in Sinclair v. United States, 183 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.’’ 184

While Sinclair and McGrain involved inquiries into the activities and dealings of private persons, these activities and dealings

were in connection with property belonging to the United States

Government, so that it could hardly be said that the inquiries concerned the merely personal or private affairs of any individual. 185

But where the business, the activities and conduct, the behavior of

individuals are subject to congressional regulation, there exists the

power of inquiry, 186 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
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Sec. 1—The Congress Investigatory Power

187Watkins v. United States, 354 U.S. 178, 195 (1957). 188See Dennis v. United States, 341 U.S. 494 (1951); Barenblatt v. United

States, 360 U.S. 109, 127 (1959); American Communications Assn. v. Douds, 339

U.S. 382 (1950). 189 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). 190Watkins 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). 191McPhaul v. United States, 364 U.S. 372 (1960). 192 Hutcheson v. United States, 369 U.S. 599 (1962). 193Shelton v. United States, 404 F. 2d 1292 (D.C.Cir. 1968), cert. den., 393 U.S.

1024 (1969). 194Watkins 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., 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 pracsubjects of congressional interest also contributed to the changed

scene. This new phase of legislative inquiry involved a broad-scale

intrusion into the lives and affairs of private citizens.’’ 187Inasmuch

as Congress clearly has power to legislate to protect the Nation and

its citizens from subversion, espionage, and sedition, 188 it has

power to inquire into the existence of the dangers of domestic or

foreign-based subversive activities in many areas of American

life—in education, 189 in labor and industry, 190 and other areas. 191

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. 192 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. 193 It is difficult in

fact to conceive of areas into which congressional inquiry might not

be carried, which is not the same, of course, as saying that the exercise of the power is unlimited.

One limitation on the power of inquiry which has been much

discussed in the cases concerns the contention that congressional

investigations often have no legislative purpose but rather are

aimed at achieving results through ‘‘exposure’’ of disapproved persons and activities: ‘‘We have no doubt,’’ wrote Chief Justice Warren, ‘‘that there is no congressional power to expose for the sake

of exposure.’’ 194 Although some Justices, always in dissent, have
96 ART. I—LEGISLATIVE DEPARTMENT

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tical concerns . . . of government.’’ CONGRESSIONAL GOVERNMENT (Boston: 1885),

303–304. For contrasting views of the reach of this statement, compare United

States v. Rumely, 345 U.S. 41, 43 (1953), with Russell v. United States, 369 U.S.

749, 777–778 (1962) (Justice Douglas dissenting). 195 Barenblatt v. United States, 360 U.S. 109, 153–162, 166 (1959); Wilkinson

v. United States, 365 U.S. 399, 415, 423 (1961); Braden v. United States, 365 U.S.

431, 446 (1961); but see DeGregory v. Attorney General, 383 U.S. 825 (1966) (a state

investigative case). 196 ‘‘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. 197 Barenblatt v. United States, 360 U.S. 109, 132 (1959). 198 United States v. Rumely, 345 U.S. 41, 44 (1953). 199 354 U.S. 178, 201 (1957). 200The Committee has since been abolished. 201Watkins v. United States, 354 U.S. 178, 202 (1957). 202 360 U.S. 109 (1959).

attempted to assert limitations in practice based upon this concept,

the majority of Justices has adhered to the traditional precept that

courts will not inquire into legislators’ motives but will look 195 only

to the question of power. 196 ‘‘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.’’ 197

Protection of Witnesses: Pertinency and Related Matters.—A witness appearing before a congressional committee is entitled to require of the committee a demonstration of its authority

to inquire with regard to his activities and a showing that the

questions asked of him are pertinent to the committee’s area of inquiry. A congressional committee possesses only those powers delegated to it by its parent body. The enabling resolution that has

given it life also contains the grant and limitations of the committee’s power. 198 In Watkins v. United States, 199 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, 200 the Chief Justice

thought it ‘‘difficult to imagine a less explicit authorizing resolution.’’ 201 But the far-reaching implications of these remarks were

circumscribed by Barenblatt v. United States, 202 in which the
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203 Id., 117–118. 204 Id., 122–123. But note that in Stamler v. Willis, 415 F. 2d 1365 (7th Cir.,

1969), cert. den., 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. 205 But see Tobin v. United States, 306 F. 2d 270 (D.C.Cir.), cert. den., 371 U.S.

902 (1962). 206 345 U.S. 41 (1953). 207The 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. Id., 48 (concurring opinion). 208 384 U.S. 702 (1966). 209 354 U.S. 178 (1957).

Court, ‘‘[g]ranting the vagueness of the Rule,’’ noted that Congress

had long since put upon it a persuasive gloss of legislative history

through practice and interpretation, which, read with the enabling

resolution, showed that ‘‘the House has clothed the Un-American

Activities Committee with pervasive authority to investigate Communist activities in this country.’’ 203 ‘‘[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.’’ 204

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. 205 But in United States v.

Rumely, 206 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. 207

Still another example of lack of proper authority is Gojack v.

United States, 208 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, 209 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
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210 Id., 208–209. 211 Id., 209–215. 212 Ibid. 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.

announcement. When questioned by a Subcommittee of the House

Un-American Activities Committee, Watkins refused to supply the

names of past associates, who, to his knowledge, had terminated

their membership in the Communist Party and supported his noncompliance by, inter alia, contending that the questions were unrelated to the work of the Committee. Sustaining the witness, the

Court emphasized that inasmuch as a witness by his refusal exposes himself to a criminal prosecution for contempt, he is entitled

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. 210

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. 211 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.’’ 212

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 ma-
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213 Notice should be taken, however, of two cases which, though decided four

and five years after Watkins, involved persons who were witnesses before the UnAmerican Activities Committee either shortly prior to or shortly following Watkins’

appearance and who were cited for contempt before the Supreme Court decided

Watkins’ case.

In Deutch v. United States, 367 U.S. 456 (1961), involving an otherwise cooperative witness who had refused to identify certain persons with whom he had been

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., 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., 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). 214 360 U.S. 109 (1959). 215 365 U.S. 399 (1961).

jority of the Court that its subsequent investigations were authorized and that the questions asked of recalcitrant witnesses were

pertinent to the inquiries. 213

Thus, in Barenblatt v. United States, 214 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, 215 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
100 ART. I—LEGISLATIVE DEPARTMENT

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216 Braden v. United States, 365 U.S. 431 (1961). 217The majority denied that the witness’ participation in a lawful and protected

course of action, such as petitioning Congress to abolish the Committee, limited the

Committee’s right of inquiry. ‘‘[W]e cannot say that, simply because the petitioner

at the moment may have been engaged in lawful conduct, his Communist activities

in connection therewith could not be investigated. The subcommittee had reasonable

ground to suppose that the petitioner was an active Communist Party member, and

that as such he possessed information that would substantially aid it in its legislative investigation. As the Barenblatt opinion makes clear, it is the nature of the

Communist activity involved, whether the momentary conduct is legitimate or illegitimate politically, that establishes the Government’s overbalancing interest.’’

Wilkinson v. United States, 365 U.S. 399, 414 (1961). In both cases, the dissenters,

Chief Justice Warren and Justices Black, Douglas, and Brennan argued that the

Committee action was invalid because it was intended to harass persons who had

publicly criticized committee activities. Id., 415, 423, 429. 218 374 U.S. 109 (1963). 219Failure to follow its own rules was again an issue in Gojack v. United States,

384 U.S. 702 (1966), in which the Court noted that while a committee rule required

the approval of a majority of the Committee before a ‘‘major’’ investigation was initiated, such approval had not been sought before a Subcommittee proceeded. 220 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.

that it was possessed of information about his Party membership,

he was notified effectively that a question about that affiliation was

relevant to a valid inquiry. A companion case was held to be controlled by Wilkinson, 216 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. 217

Related to the cases discussed in this section are those cases

requiring that congressional committees observe strictly their own

rules. Thus, in Yellin v. United States, 218 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. 219

Finally, it should be noted that the Court has blown hot and

cold on the issue of a quorum as a prerequisite to a valid contempt

citation and that no firm statement of a rule is possible, although

it seems probable that ordinarily no quorum is necessary. 220

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
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Sec. 1—The Congress Investigatory Power

221 Barenblatt v. United States, 360 U.S. 109, 112 (1959). 222 Id., 126; Watkins v. United States, 354 U.S. 178, 196 (1957); Quinn v. United States, 349 U.S. 155, 161 (1955). 223Quinn v. United States, 349 U.S. 155 (1955). 224 Emspak v. United States, 349 U.S. 190 (1955). 225 Bart v. United States, 349 U.S. 219 (1955). 226McPhaul v. United States, 364 U.S. 372 (1960). 227 369 U.S. 599 (1962).

Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights.’’ 221

Just as the Constitution places limitations on Congress’ power to

legislate, so it limits the power to investigate. In this section, we

are concerned with the limitations the Bill of Rights places on the

scope and nature of the congressional power to inquire.

The most extensive amount of litigation in this area has involved the privilege against self-incrimination guaranteed against

governmental abridgment by the Fifth Amendment. Observance of

the privilege by congressional committees has been so uniform that

no Court holding has ever held that it must be observed, though

the dicta is plentiful. 222 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. 223 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. 224

In still another case, the Court held that the Committee had not

clearly overruled the claim of privilege and directed an answer. 225

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. 226

In Hutcheson v. United States, 227 the Court rejected a challenge to a Senate Committee inquiry into union corruption on the
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Sec. 1—The Congress Investigatory Power

228 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

Commission, 378 U.S. 52 (1964), thus leaving the vitality of Hutcheson doubtful. 229The 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.’’ 230 Barenblatt v. United States, 360 U.S. 109, 126 (1959). 231 Barenblatt v. United States, 360 U.S. 109 (1959).

part of a witness who was under indictment in state court on

charges relating to the same matters about which the Committee

sought to interrogate him. The witness did not plead his privilege

against self-incrimination but contended that by questioning him

about matters which would aid the state prosecutor the Committee

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. 228 Following behind the privilege against self-incrimination,

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. 229 ‘‘[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.’’ 230

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 231 or because the witnesses at the time they were called

were engaged in protected activities such as petitioning Congress
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232Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States,

365 U.S. 431 (1961). 233 United States v. Rumely, 345 U.S. 41 (1953). 234Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963).

See also DeGregory v. Attorney General, 383 U.S. 825 (1966). 235Watkins v. United States, 354 U.S. 178, 188 (1957). 236See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), and

cases cited. 237 Cf. McPhaul v. United States, 364 U.S. 372 (1960). 238 273 U.S. 135 (1927). 239 6 Wheat (19 U.S.) 204 (1821). 240The 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

to abolish the inquiring committee. 232 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. 233 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. 234

Dicta in the Court’s opinions acknowledge that the Fourth

Amendment guarantees against unreasonable searches and seizures are applicable to congressional committees. 235 The issue

would most often arise in the context of subpoenas, inasmuch as

that procedure is the usual way by which committees obtain documentary material and inasmuch as Fourth Amendment standards

apply as well to subpoenas as to search warrants. 236 But there are

no cases in which a holding turns on this issue. 237

Other issues of the constitutional rights of witnesses have been

raised at various times, but none has been successfully asserted or

have even gained substantial minority strength.

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. 238 But the principle there applied had its roots in an

early case, Anderson v. Dunn, 239 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. 240 The
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Sec. 1—The Congress Investigatory Power

opportunity to be heard prior to conviction and sentencing. Although this case dealt

with a state legislature, there is no question it would apply to Congress as well. 241 243 U.S. 521 (1917). 242 Id., 542. 243 294 U.S. 125 (1935). 244 Id., 150. 245 6 Wheat. (19 U.S.) 204 (1821). 246 Act of January 24, 1857, 11 Stat. 155. With only minor modification, this

statute is now 2 U.S.C. § 192. 247 In re Chapman, 166 U.S. 661, 671–672 (1897).

right to punish a contumacious witness was conceded in Marshall

v. Gordon, 241 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. 242 Thus, in Jurney v.

MacCracken, 243 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.’’ 244

Under the rule laid down by Anderson v. Dunn, 245 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. 246

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.’’ 247
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Sec. 2—House of Representatives Cl. 1—Congressional Districting

248Sinclair 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., 781; Watkins, supra, 225.

249 Cf. Groppi v. Leslie, 404 U.S. 496 (1972).

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

Because Congress has invoked the aid of the federal judicial

system in protecting itself against contumacious conduct, the consequence, the Court has asserted numerous times, is that the duty

has been conferred upon the federal courts to accord a person prosecuted for his statutory offense every safeguard which the law accords in all other federal criminal cases 248 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. 249

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. 250 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.
106 ART. I—LEGISLATIVE DEPARTMENT

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

251The phrase ‘‘one person, one vote’’ which came out of this litigation might

well seem to refer to election districts drawn to contain equal numbers of voters

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, 112

S.Ct. 1415 (1992). 252 Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and districting); Hadley v. Junior College District, 397 U.S. 50 (1970) (local governmental

units). 253 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964). 254 376 U.S., 7. 255 Act of June 25, 1842, 5 Stat. 491. 256 Act of February 2, 1872, 17 Stat. 28. 257The House uniformly refused to grant any such relief. 1 A. HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (Washington: 1907), 310. See L.

SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT (Washington: 1941), 135–138. 258Smiley 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).

CONGRESSIONAL DISTRICTING

A major innovation in constitutional law in recent years has

been the development of a requirement that election districts in

each State be so structured that each elected representative should

represent substantially equal populations. 251 While this requirement has generally been gleaned from the equal protection clause

of the Fourteenth Amendment, 252 in Wesberry v. Sanders, 253 the

Court held that ‘‘construed in its historical context, the command

of Art. 1, § 2, that Representatives be chosen ‘by the People of the

several States’ means that as nearly as is practicable one man’s

vote in a congressional election is to be worth as much as another’s.’’ 254

Court involvement in this issue developed slowly. In our early

history, state congressional delegations were generally elected atlarge instead of by districts and even when Congress required single-member districting 255 and later added a provision for equally

populated districts 256 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. 257 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. 258 In

the late 1940s and the early 1950s, the Court utilized the ‘‘political
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Sec. 2—House of Representatives Cl. 1—Congressional Districting

259 369 U.S. 186 (1962). 260Wesberry v. Sanders, 376 U.S. 1 (1964). 261 Id., 7–18. 262 Id., 20–49. 263Kirkpatrick 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. 264 394 U.S. 526 (1969). See also Wells v. Rockefeller, 394 U.S. 542 (1969). 265Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969). 266 Id., 531.

question’’ doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr. 259

For the Court in Wesberry, 260 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. 261 Justice

Harlan in dissent argued contrarily that the statements relied on

by the majority had uniformly been in the context of the Great

Compromise—Senate representation of the States with Members

elected by the state legislatures, House representation according to

the population of the States, qualified by the guarantee of at least

one Member per State and the counting of slaves as three-fifths of

persons—and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, § 4, had vested exclusive control over state districting practices in Congress and that the Court action overrode a congressional decision not to require equally-populated districts. 262

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. 263 But in Kirkpatrick v. Preisler, 264 a sharply divided Court announced the rule

that a State must make a ‘‘good-faith effort to achieve precise

mathematical equality.’’ 265 Therefore, ‘‘[u]nless population

variances among congressional districts are shown to have resulted

despite such [good-faith] effort [to achieve precise mathematical

equality], the State must justify each variance, no matter how

small.’’ 266 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 in-
108 ART. I—LEGISLATIVE DEPARTMENT

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

267 Id., 533. People vote as individuals, Justice Brennan said for the Court, and

it is the equality of individual voters that is protected. 268 Ibid. Political ‘‘practicality’’ may not interfere with a rule of ‘‘practicable’’

equality. 269 Id., 533–534. The argument is not ‘‘legally acceptable.’’ 270 Id., 534–535. 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. 271 Id., 535. This justification would be acceptable if an attempt to establish

shifts with reasonable accuracy had been made. 272 Id., 536. Justifications based upon ‘‘the unaesthetic appearance’’ of the map

will not be accepted. 273White 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 in legislatures in this area to the extent possible. 274Karcher v. Daggett, 462 U.S. 725 (1983). Illustrating the point about computer-generated plans containing absolute population equality is Hastert v. State

Board 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. 275The principal case was Davis v. Bandemer, 478 U.S. 109 (1986), a legislative

apportionment case, but no doubt should exist that congressional districting is covtact areas with distinct economic and social interests, 267 (2) the requirements of legislative compromise, 268 (3) a desire to maintain

the integrity of political subdivision lines, 269 (4) the exclusion from

total population figures of certain military personnel and students

not residents of the areas in which they were found, 270 (5) an attempt to compensate for population shifts since the last census, 271

or (6) an effort to achieve geographical compactness. 272

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. 273 Adhering to

the principle of strict population equality in a subsequent case, the

Court refused to find valid a plan 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.’’ 274

Attacks on partisan gerrymandering have proceeded under

equal-protection analysis, and, while the Court has held justiciable

claims based on claims of denial of effective representation, the

standards are so high neither voters nor minority parties have yet

benefitted from the development. 275
ART. I—LEGISLATIVE DEPARTMENT 109

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

ered. See Badham v. Eu, 694 F.Supp. 664 (N.D.Calif.) (three-judge court) (adjudicating partisan gerrymandering claim as to congressional districts but deciding against

plaintiffs on merits), affd., 488 U.S. 1024 (1988); Pope v. Blue, 809 F.Supp. 392

(W.D.N.C.) (three-judge court) (same), affd, 113 S.Ct. 650 (1992). 276The 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. 277Minor v. Happersett, 21 Wall. (88 U.S.) 162, 171 (1875); Breedlove v. Suttles,

302 U.S. 277, 283 (1937). See 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED STATES (Boston: 1833), 576–585. 278The 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. 279The 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 District, 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski,

399 U.S. 204 (1970). The excluded qualifications were in regard to all elections. 280The 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). 281 § 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended. 282 Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966). 283Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb. 284Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970). 285Oregon v. Mitchell, 400 U.S. 112, 134, 147–150, 236–239, 285–292 (1970). 286Oregon v. Mitchell, 400 U.S. 112, 119–131, 152–213, 293–296 (1970).

ELECTOR QUALIFICATIONS

It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections 276

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. 277 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 278 and by judicial decisions. 279 Further, beyond the limitation of discretion on the part

of the States, Congress has assumed the power, with judicial acquiescence, to legislate itself to provide qualifications at least with regard to some elections. 280 Thus, in the Voting Rights Act of

1965, 281 Congress legislated changes of a limited nature in the literacy laws of some of the States, 282 and in the Voting Rights Act

Amendments of 1970, 283 Congress successfully lowered the minimum voting age in federal elections 284 and prescribed residency

qualifications for presidential elections, 285 the Court striking down

an attempt to lower the minimum voting age for all elections. 286

These developments greatly limited the discretion granted in Arti-
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Sec. 2—House of Representatives Cl. 2—Qualifications

287 ‘‘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). 288 United States v. Mosley, 238 U.S. 383 (1915). 289 United States v. Classic, 313 U.S. 299, 315 (1941). 290See S. Rept. No. 904, 74th Congress, 1st sess. (1935), reprinted in 79 CONG.

REC. 9651–9653 (1935).

291 1 A. HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (Washington:

1907), § 418; 79 CONG. REC. 9841–9842 (1935); cf. HINDS’ PRECEDENTS, supra, § 429.

cle I, § 2, cl. 1, and are more fully dealt with subsequently 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, 287 and Congress has had the power under Article I, § 4, to legislate to protect that right against both official 288 and private denial. 289

Clause 2. No person shall be a Representative who shall

not have attained to the Age of twenty-five Years, and been

seven Years a Citizen of the United States, and who shall not,

when elected, be an inhabitant of the State in which he shall

be chosen.

QUALIFICATIONS OF MEMBERS OF CONGRESS

When the Qualifications Must Be Possessed

A question much disputed but now seemingly settled is whether a condition of eligibility must exist at the time of the election

or whether it is sufficient that eligibility exist when the Memberelect presents himself to take the oath of office. While the language

of the clause expressly makes residency in the State a condition at

the time of election, it now appears established in congressional

practice that the age and citizenship qualifications need only be

met when the Member-elect is to be sworn. 290 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. 291

Exclusivity of Constitutional Qualifications

Congressional Additions.—Writing in THE FEDERALIST with

reference to the election of Members of Congress, Hamilton firmly
ART. I—LEGISLATIVE DEPARTMENT 111

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

292 No. 60 (J. Cooke ed. 1961), 409. See also 2 J. STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES (Boston: 1833), §§ 623–627 (relating to the

power of the States to add qualifications). 293 All the instances appear to be, however, cases in which the contest arose out

of a claimed additional state qualification. 294 Act of July 2, 1862, 12 Stat. 502. Note also the disqualification written into

§ 3 of the Fourteenth Amendment. 295 1 A. HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (Washington:

1907), §§ 451, 449, 457. 296 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., § 464. A Memberelect was excluded in 1899 because of his practice of polygamy, id., 474–480, but

the Senate refused, after adopting a rule requiring a two-thirds vote, to exclude a

Member-elect on those grounds. Id., §§ 481–483. The House twice excluded a socialist Member-elect in the wake of World War I on allegations of disloyalty. 6 C. CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (Washington: 1935), §§ 56–

58. See also S. Rept. 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). 297 395 U.S. 486 (1969). The Court divided eight to one, Justice Stewart dissenting on the ground the case was moot. 298The Court declined to reach the question whether the Constitution in fact

does impose other qualifications. 395 U.S., 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). 299 Id., 395 U.S., 550. 300 H. Rept. No. 27, 90th Congress, 1st sess. (1967); Id., 395 U.S., 489–493.

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.’’ 292 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. 293 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. 294 Several persons were refused seats by both Houses

because of charges of disloyalty, 295 and thereafter House practice,

and Senate practice as well, was erratic. 296 But in Powell v.

McCormack, 297 it was conclusively established that the qualifications listed in cl. 2 are exclusive 298 and that Congress could not

add to them by excluding Members-elect not meeting the additional

qualifications. 299

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. 300 The Court determination that
112 ART. I—LEGISLATIVE DEPARTMENT

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

301Powell v. McCormack, 395 U.S. 486, 518–547 (1969). 302 Id., 522–531. 303 Id., 532–539. 304 Id., 539–541. 305 Id., 541–547. 306 Id., 547–548.

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’ 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. 301 The conclusion followed because the English parliamentary

practice and the colonial legislative practice at the time of the

drafting of the Constitution, after some earlier deviations, had settled into a policy that exclusion was a power exercisable only when

the Member-elect failed to meet a standing qualifications, 302 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, 303 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. 304

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. 305 Finally, even were

the intent of the Framers less clear, said the Court, it would still

be compelled to interpret the power to exclude narrowly. ‘‘A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to

govern them’ 2 Elliot’s Debates 257. As Madison pointed out at the

Convention, this principle is undermined as much by limiting

whom the people can select as by limiting the franchise itself. In

apparent agreement with this basic philosophy, the Convention

adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging

qualifications, would be to ignore Madison’s warning, borne out in

the Wilkes case and some of Congress’ own post-Civil War exclusion cases, against ‘vesting an improper and dangerous power in

the Legislature.’ 2 Farrand 249.’’ 306 Thus, the Court appears to
ART. I—LEGISLATIVE DEPARTMENT 113

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

307The 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). 308 Bond v. Floyd, 385 U.S. 116 (1966). 309 Id., 129–131, 132, 135. 310 Id., 135 n. 13. 311 1 A. HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES (Washington:

1907), § 414.

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. 307

The result in the Powell case had been foreshadowed earlier

when the Court held that the exclusion of a Member-elect by a

state legislature because of objections he had uttered to certain national policies constituted a violation of the First Amendment and

was void. 308 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. 309 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. 310 The First Amendment holding and the holding with regard to testing the sincerity

with which the oath of office is taken is no doubt as applicable to

the United States Congress as to state legislatures.

State Additions.—However much Congress may have deviated from the principle that the qualifications listed in the Constitution are exclusive when the issue has been congressional enlargement of those qualifications, it has been uniform in rejecting

efforts by the States to enlarge the qualifications. Thus, the House

in 1807 seated a Member-elect who was challenged as not being in

compliance with a state law imposing a twelve-month durational

residency requirement in the district, rather than the federal requirement of being an inhabitant of the State at the time of election; the state requirement, the House resolved, was unconstitutional. 311 Similarly, both the House and Senate have seated other

Members-elect who did not meet additional state qualifications or
114 ART. I—LEGISLATIVE DEPARTMENT

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

312 Id., §§ 415–417. The court holdings, predominantly state courts, appear almost uniformly to be that the States may not add to the qualifications. E.g., Shub

v. Simpson, 196 Md. 177, 76 A. 2d 332, appeal dismd. 340 U.S. 881 (1950); Odegard

v. Olson, 264 Minn, 439, 119 N.W. 2d 717 (1963); State ex rel. Johnson v. Crane,

65 Wyo. 189, 197 P. 2d 864 (1948); Florida ex rel. Davis v. Adams, 238 So. 2d 415

(Fla. 1970), stay granted, 400 U.S. 1203 (1970) (Justice Black in Chambers); Stack

v. Adams, 315 F. Supp. 1295 (D.C. N.D. Fla. 1970), interim relief granted, 400 U.S.

1203 (1970) (Justice Black in Chambers). 313The 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.

who suffered particular state disqualifications on eligibility, such

as running for Congress while holding particular state offices. 312

Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within

this Union, according to their respective Numbers, which shall

be determined by adding to the whole Number of free Persons,

including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons]. 313

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

While § 2 expressly provides for an enumeration of persons,

Congress has repeatedly directed an enumeration not only of the
ART. I—LEGISLATIVE DEPARTMENT 115

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

314Knox v. Lee (Legal Tender Cases). 12 Wall. (79 U.S.) 457, 536 (1871). 315For an extensive history of the subject, see L. SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT (Washington: 1941). 316 46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. § 2a. 317 U.S. Department of Commerce v. Montana, 112 S.Ct. 1415 (1992). The practice of the Secretary of Commerce in allocating overseas federal employees and military personnel to the States of last residence was attacked but upheld in Franklin

v. Massachusetts, 112 S.Ct. 2767 (1992). The mandate of the clause 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. 318 241 U.S. 565 (1916).

free persons in the States, but also of those in the territories, and

has required 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; 314 it 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 power in making the enumeration of persons called for by this section, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is taken. 315 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, 316 it provided that the membership of the House of

Representatives should henceforth be restricted to 435 members, to

be distributed among the States by the so-called ‘‘method of major

fractions,’’ which had been earlier employed in the apportionment

of 1911 and which has now been replaced with 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. 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. 317

While requiring the election of Representatives by districts,

Congress has left it to the States to define the areas from which

members should be chosen. This has occasioned a number of disputes concerning the validity of action taken by the States. In Ohio

ex rel. Davis v. Hildebrant, 318 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
116 ART. I—LEGISLATIVE DEPARTMENT

Sec. 3—Senate Cl. 3—Apportionment

319Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932);

Carroll v. Becker, 285 U.S. 380 (1932). 320See Seventeenth Amendment. 321See Seventeenth Amendment. 322See Seventeenth Amendment.

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. 319

Clause 4. When vacancies happen in the Representation

from any State, the Executive Authority thereof shall issue

Writs of Election to fill such Vacancies.

Clause 5. The House of Representatives shall chuse their

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

Impeachment.

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]. 320

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, 321 [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]. 322
ART. I—LEGISLATIVE DEPARTMENT 117

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

Clause 3. No Person shall be a Senator who shall not have

attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be

an Inhabitant of that State for which he shall be chosen.

Clause 4. The Vice President of the United States shall be

President of the Senate but shall have no Vote, unless they be

equally divided.

Clause 5. The Senate shall chuse their other Officers, and

also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of the President of

the United States.

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.

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.
118 ART. I—LEGISLATIVE DEPARTMENT

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

323 5 Stat. 491 (1842). The requirement was omitted in 1850, 9 Stat. 428, but

was adopted again in 1862. 12 Stat. 572. 324The 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). 325The 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. Rept. 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 lay off 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(Washington: 1941), 135–138. This argument would

not appear to be maintainable in light of the language inEx parte Siebold, 100 U.S.

371, 383–386 (1880). 326 46 Stat. 13 (1929). In 1967, Congress restored the single-member district requirement. 81 Stat. 581, 2 U.S.C. § 2c. 327 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. 328 Article I, § 4, and the Fifteenth Amendment have had quite different applications. The Court insisted that under the latter, while Congress could legislate to

protect the suffrage in all elections, it could do so only against state interference

based on race, color, or previous condition of servitude, James v. Bowman, 190 U.S.

127 (1903);United States v. Reese, 92 U.S. 214 (1876), whereas under the former

it could legislate against private interference as well for whatever motive but only

FEDERAL LEGISLATION PROTECTING ELECTORAL

PROCESS

Not until 1842 did Congress undertake to exercise the power

to regulate the ‘‘times, places and manner of holding elections for

Senators and Representatives.’’ In that year, it passed a law requiring the election of Representatives by districts. 323 In subsequent

years, Congress expanded on the requirements, successively adding

contiguity, compactness, and substantial equality of population to

the districting requirements. 324 However, no challenge to the seating of Members-elect selected in violation of these requirements

was ever successful, 325 and Congress deleted the standards from

the 1929 apportionment act. 326 More success attended a congressional resolution in 1866 of deadlocks in state legislatures over the

election of Senators, often resulting in vacancies for months. 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. 327

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. 328 Under the Enforcement Act of 1870, and subsequent
ART. I—LEGISLATIVE DEPARTMENT 119

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

in federal elections.Ex parte Siebold, 100 U.S. 371 (1880);Ex parte Yarbrough, 110

U.S. 651 (1884).

329The 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(Ithaca: 1947).

330The constitutionality of sections pertaining to federal elections was sustained

inEx parte Siebold, 100 U.S. 371 (1880), andEx parte Yarbrough, 110 U.S. 651

(1884). The legislation pertaining to all elections was struck down as going beyond

Congress’ power to enforce the Fifteenth Amendment.United States v. Reese, 92

U.S. 214 (1876).

331 28 Stat. 144 (1894).

332P.L. 85–315, Part IV, § 131, 71 Stat. 634, 637 (1957); P.L. 86–449, Title III,

§ 301, Title VI, 601, 74 Stat. 86, 88, 90 (1960); P.L. 88–352, Title I, § 101, 78 Stat.

241 (1964); P.L. 89–110, 79 Stat. 437 (1965); P.L. 90–284, Title I, § 101, 82 Stat.

73 (1968); P.L. 91–285, 84 Stat. 314 (1970);P.L. 94–73, 89 Stat. 400 (1975); P.L. 97–

205, 96 Stat. 131 (1982). Most of these statutes are codified in 42 U.S.C. § 1971et

seq.The penal statutes are in 18 U.S.C. §§ 241–245.

333 Act of January 26, 1907, 34 Stat. 864, now a part of 18 U.S.C. § 610.

laws, false registration, bribery, voting without legal right, making

false returns of votes cast, interference in any manner with officers

of election, and the neglect by any such officer of any duty required

of him by state or federal law were made federal offenses. 329Provision 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. 330When the Democratic Party regained control of Congress,

these pieces of Reconstruction legislation dealing specifically with

elections were repealed, 331 but other statutes prohibiting interference with civil rights generally were retained and these were

utilized in later years. More recently, Congress has enacted, in

1957, 1960, 1964, 1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the right to vote in all elections, federal, state, and

local, through the assignment of federal registrars and poll watchers, suspension of literacy and other tests, and the broad proscription of intimidation and reprisal, whether with or without state action. 332

Another chapter was begun in 1907 when Congress passed the

Tillman Act, prohibiting national banks and corporations from

making contributions in federal elections. 333The Corrupt Practices

Act, first enacted in 1910 and replaced by another law in 1925, extended federal regulation of campaign contributions and expendi-
120 ART. I—LEGISLATIVE DEPARTMENT

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

334 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. SeeBuckley

v. Valeo, 424 U.S. 1 (1976). 335 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. 336 United States v. Classic, 313 U.S. 299, 314–315 (1941), and cases cited. 337 Id., 315;Buckley v. Valeo, 424 U. S. 1, 13 n. 16 (1976). 338 United States v. Classic, 313 U.S. 299, 315–321 (1941). The authority

ofNewberry v. United States, 256 U.S. 232 (1921), to the contrary has been vitiated.Cf. United States v. Wurzbach, 280 U.S. 396 (1930). 339 United States v. Mosley, 238 U.S. 383 (1915);United States v. Saylor, 322

U.S. 385, 387 (1944). 340 Ex parte Yarbrough, 110 U.S. 651 (1884). 341 United States v. Mosley, 238 U.S. 383 (1915). 342 United States v. Saylor, 322 U.S. 385 (1944). 343 United States v. Bathgate, 246 U.S. 220 (1918);United States v. Gradwell,

243 U.S. 476 (1917). 344 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). 345 Ibid.

tures in federal elections 334 and other acts have similarly provided

other regulations. 335

As we have noted above, although § 2, cl. 1, of this Article vests

in the States the responsibility, now limited, to establish voter

qualifications for congressional elections, the Court has held that

the right to vote for Members of Congress is derived from the Federal Constitution, 336 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. 337Where 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. 338The right

embraces, of course, the opportunity to cast a ballot and to have

it counted honestly. 339 Freedom from personal violence and intimidation may be secured. 340The integrity of the process may be safeguarded against a failure to count ballots lawfully cast 341 or the

dilution of their value by the stuffing of the ballot box with fraudulent ballots. 342 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. 343

To accomplish the ends under this clause, Congress may adopt

the statutes of the States and enforce them by its own sanctions. 344 It may punish a state election officer for violating his duty

under a state law governing congressional elections. 345It may, in

short, utilize its power under this clause, combined with the nec-
ART. I—LEGISLATIVE DEPARTMENT 121

Sec. 5—Powers and Duties of the House Judge Elections

346 But inOregon v. Mitchell, 400 U.S. 112 (1970), Justice Black grounded his

vote to uphold the age reduction in federal elections and the presidential voting residency provision sections of the Voting Rights Act Amendments of 1970 on this

clause. Id., 119–135. Four Justices specifically rejected this construction, id., 209–

212, 288–292, 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.

essary-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. 346

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].

SECTION5. 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.

Clause 4. Neither House, during the Session of Congress,

shall, without the Consent of the other, adjourn for more than
122 ART. I—LEGISLATIVE DEPARTMENT

Sec. 5—Powers and Duties of the House Quorum

347 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929). 348 In re Loney, 134 U.S. 372 (1890). 349 6 C. CANNON’SPRECEDENTS OF THE HOUSE OF REPRESENTATIVES(Washington:

1936), §§ 72–74, 180.Cf. Newberry v. United States, 256 U.S. 232, 258 (1921). 350 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929). 351 Id., 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). 352 A. HINDS’PRECEDENTS OF THE HOUSE OF REPRESENTATIVES(Washington:

1907), §§ 2895–2905. 353 144 U.S. 1 (1892).

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. 347 It may punish perjury committed in testifying before a notary public upon a contested election. 348 The power to judge elections extends to an investigation of

expenditures made to influence nominations at a primary election. 349Refusal 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. 350Nor does such

refusal unlawfully deprive the State which elected such person of

its equal suffrage in the Senate. 351

‘‘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. 352The Supreme Court upheld this rule inUnited

States v. Ballin, 353 saying that the capacity of the House to transact business is ‘‘created by the mere presence of a majority,’’ and

that since the Constitution does not prescribe any method for de-
ART. I—LEGISLATIVE DEPARTMENT 123

Sec. 5—Powers and Duties of the House Rules of Proceedings

354 Id., 5–6. 355 Rule V. 356 4 A. HINDS’PRECEDENTS OF THE HOUSE OF REPRESENTATIVES(Washington:

1907), §§ 2910–2915; 6 C. CANNON’SPRECEDENTS OF THE HOUSE OF REPRESENTATIVES(Washington: 1936), §§ 645, 646. 357 United States v. Ballin, 144 U.S. 1, 5 (1892). The Senate is ‘‘a continuing

body.’’McGrain v. Daugherty, 273 U.S. 135, 181–182 (1927). Hence its rules remain

in force from Congress to Congress except as they are changed from time to time,

whereas those of the House are readopted at the outset of each new Congress. 358 286 U.S. 6 (1932). 359 338 U.S. 84 (1949). 360 Id., 87–90.

termining 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.’’ 354The rules of the Senate

provide for the ascertainment of a quorum only by a roll call, 355

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. 356

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.’’ 357Where a rule affects private rights, the

construction thereof becomes a judicial question. InUnited States v.

Smith, 358 the Court held that the Senate’s attempt to reconsider

its confirmation of a person nominated by the President as Chairman of the Federal Power Commission was not warranted by its

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

InChristoffel v. United States, 359 a sharply divided Court upset a

conviction for perjury in the district courts of one who had denied

under oath before a House committee any affiliation with Communism. The reversal was based on the ground that inasmuch as

a quorum of the committee, while present at the outset, was not

present at the time of the alleged perjury, testimony before it was

not before a ‘‘competent tribunal’’ within the sense of the District

of Columbia Code. 360 Four Justices, speaking by Justice Jackson,

dissented, arguing that under the rules and practices of the House,

‘‘a quorum once established is presumed to continue unless and
124 ART. I—LEGISLATIVE DEPARTMENT

Sec. 5—Powers and Duties of the House Power Over Members

361 Id., 92–95.

362 Burton v. United States, 202 U.S. 344 (1906).

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

364 Id., 669–670.See2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES(Boston: 1833), § 836.

365 395 U.S. 486 (1969).

366 Id., 506–512.

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.’’ 361

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. 362In 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.’’ 363It 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 Indiansand 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. 364

InPowell v. McCormack, 365 a suit challenging theexclusionof a

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

that inasmuch as the vote to exclude was actually in excess of twothirds of the Members it should be treated simply as

anexpulsion.The Court rejected the argument, noting that the

House precedents were to the effect that it had no power to expel

for misconduct occurring prior to the Congress in which the expulsion is proposed, as was the case of Mr. Powell’s alleged misconduct, but basing its rejection on its inability to conclude that if

the Members of the House had been voting to expel they would still

have cast an affirmative vote in excess of two-thirds. 366
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Cl. 2—Disabilities Journal

367 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES(Boston: 1833), § 840, quoted with approval inField v. Clark, 143 U.S. 649,

670 (1892). 368 United States v. Ballin, 144 U.S. 1, 4 (1892). 369Field 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., 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).

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.’’ 367When the Journal of either House is put in evidence

for the purpose of determining whether the yeas and nays were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein

that a quorum was present, though not disclosed by the yeas and

nays, is final. 368But 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. 369

SECTION6. 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.

Clause 2. No Senator or Representative shall, during the

Time for which he was elected, be appointed to any civil Office
126 ART. I—LEGISLATIVE DEPARTMENT

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370See infra. 371P. L. 90–206, § 225, 81 Stat. 642 (1967), as amended, P. L. 95–19, § 401, 91

Stat. 45 (1977), as amended, P. L. 99–190, § 135(e), 99 Stat. 1322 (1985). 372P. L. 94–82, § 204(a), 89 Stat. 421. 373Pressler v. Simon, 428 F.Supp. 302 (D.D.C. 1976) (three-judge court), affd.

summarily, 434 U.S. 1028 (1978); Humphrey v. Baker, 848 F.2d 211 (D.C.Cir.), cert.

den. 488 U.S. 966 (1988).

374P.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.

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.

COMPENSATION, IMMUNITIES AND DISABILITIES OF

MEMBERS

Congressional Pay

With the surprise ratification of the Twenty-Seventh Amendment, 370 it is now the rule that congressional legislation ‘‘varying’’—note that the Amendment applies to decreases as well as increases—the level of legislators’ pay may not take effect until an

intervening election has occurred. The only real controversy likely

to arise in the interpretation of the new rule is whether pay increases that result from automatic alterations in pay are subject to

the same requirement or whether it is only the initial enactment

of the automatic device that is covered.

That is, from the founding to 1967, congressional pay was determined directly by Congress in specific legislation setting specific

rates of pay. In 1967, a law was passed that created a quadrennial

commission with the responsibility to propose to the President salary levels for top officials of the Government, including Members

of Congress. 371 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. 372

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. 373 Thereafter, prior to ratification of the Amendment, Congress in the Ethics Reform Act of 1989, 374 altered both the pay-increase and the cost-of-living-increase provisions of law, making

quadrennial pay increases effective only after an intervening con-
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Cl. 2—Disabilities Compensation, Privileges

375 Boehner v. Anderson, 809 F.Supp. 138 (D.D.C. 1992) (holding Amendment

has no effect on present statutory mechanism). 376Long v. Ansell, 293 U.S. 76 (1934). 377 Id., 83. 378 United States v. Cooper, 4 Dall. (4 U.S.) 341 (C.C. Pa. 1800). 379Williamson v. United States, 207 U.S. 425, 446 (1908). 380 United States v. Johnson, 383 U.S. 169, 178 (1966). 381 ‘‘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. 382 United States v. Johnson, 383 U.S. 169, 177–179, 180–183 (1966);Powell v.

McCormack, 395 U.S. 486, 502 (1969). 383 United States v. Johnson, 383 U.S. 169, 178 (1966).

gressional election and making cost-of-living increases dependent

upon a specific congressional vote. Litigation of the effect of the

Amendment is on-going. 375

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. 376It does not apply to service of process

in either civil 377 or criminal cases. 378Nor 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. 379

Privilege of Speech or Debate

Members.—This clause represents ‘‘the culmination of a long

struggle for parliamentary supremacy. Behind these simple

phrases lies a history of conflict between the Commons and the

Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical

legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an

important protection of the independence and integrity of the legislature.’’ 380So Justice Harlan explained the significance of the

speech-and-debate clause, the ancestry of which traces back to a

clause in the English Bill of Rights of 1689 381 and the history of

which traces back almost to the beginning of the development of

Parliament as an independent force. 382‘‘In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the

Founders.’’ 383 ‘‘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
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384 United States v. Brewster, 408 U.S. 501, 507 (1972). This rationale was approvingly quoted fromCoffin v. Coffin, 4 Mass. 1, 28 (1808), inKilbourn v. Thompson,

103 U.S. 168, 203 (1881). 385Powell v. McCormack, 395 U.S. 486, 502 (1969), quotingKilbourn v. Thompson, 103 U.S. 168, 204 (1881). 386Tenney 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). 387Gravel v. United States, 408 U.S. 606, 625 (1972). The critical nature of the

clause is shown by the holding inDavis v. Passman, 442 U.S. 228, 235 n. 11 (1979),

that when a Member is sued under the Fifth Amendment for employment discrimination on the basis of gender, onlythe 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. 388 103 U.S. 168 (1881). But seeGravel v. United States, 408 U. S. 606, 618–

619 (1972). 389 395 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

of the legislative process by insuring the independence of individual

legislators.’’ 384

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.’’’ 385Thus, 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.’’ 386 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.’’ 387 Immunity from civil suit, both in law and equity,

and from criminal action based on the performance of legislative

duties flows from a determination that a challenged act is within

the definition of legislative activity, but the Court in the more recent cases appears to have narrowed the concept somewhat.

InKilbourn v. Thompson, 388 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.Kilbournwas relied on inPowell v.

McCormack, 389 in which the plaintiff was not allowed to maintain
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Cl. 2—Disabilities Compensation, Privileges

the absence of someone the clause would still preclude suit. Id., 506 n. 26. See

alsoKilbourn v. Thompson, 103 U.S. 168, 204 (1881). 390 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975). 391 387 U.S. 82 (1967). But see the reinterpretation of this case inGravel v.

United States, 408 U.S. 606, 619–620 (1972).And see McSurely v. McClellan, 553

F. 2d 1277 (D.C.Cir. 1976)(en banc), cert. dismd. as improvidently granted, sub nom.

McAdams v. McSurely, 438 U.S. 189 (1978). 392Doe v. McMillan, 412 U.S. 306 (1973).

an action for declaratory judgment against certain Members of the

House of Representatives to challenge his exclusion by a vote of the

entire House. Because the power of inquiry is so vital to performance of the legislative function, the Court held that the clause precluded suit against the Chairman and Members of a Senate subcommittee and staff personnel, to enjoin enforcement of a subpoena

directed to a third party, a bank, to obtain the financial records of

the suing organization. The investigation was a proper exercise of

Congress’ power of inquiry, the subpoena was a legitimate part of

the inquiry, and the clause therefore was an absolute bar to judicial review of the subcommittee’s actions prior to the possible institution of contempt actions in the courts. 390And inDombrowski v.

Eastland, 391 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. 392A committee had

conducted an authorized investigation into conditions in the schools

of the District of Columbia and had issued a report that the House

of Representatives routinely ordered printed. In the report, named

students were dealt with in an allegedly defamatory manner, and

their parents sued various committee Members and staff and other

personnel, including the Superintendent of Documents and the

Public Printer, seeking to restrain further publication, dissemination, and distribution of the report until the objectionable material

was deleted and also seeking damages. The Court held that the

Members of Congress and the staff employees had been properly

dismissed from the suit, inasmuch as their actions—conducting the

hearings, preparing the report, and authorizing its publication—

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,
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393Difficulty attends an assessment of the effect of the decision, inasmuch as

the Justices in the majority adopted mutually inconsistent stands, id., 325 (concurring opinion), and four Justices dissented. Id., 331, 332, 338. The case leaves unresolved as well the propriety of injunctive relief. Compare id., 330 (Justice Douglas

concurring), with id., 343–345 (three dissenters arguing that separation of powers

doctrine forbade injunctive relief). Also compareDavis v. Passman, 442 U.S. 228,

245, 246 n. 24 (1979), with id., 250–251 (Chief Justice Burger dissenting). 394 Hutchinson v. Proxmire, 441 U.S. 111 (1979). 395 Id., 126, quotingGravel v. United States, 408 U.S. 606, 625 (1972). 396 Hutchinson v. Proxmire, 443 U.S. 111, 130, 132–133 (1979). The Court distinguished between the more important ‘‘informing’’ function of Congress, i.e., its efforts to inform itself in order to exercise its legislative powers, and the less important ‘‘informing’’ function of acquainting the public about its activities. The latter

function the Court did not find an integral part of the legislative process. See

alsoDoe v. McMillan, 412 U.S. 306, 314–317 (1973). But compare id., 325 (concurring). For consideration of the ‘‘informing’’ function in its different guises in the context of legislative investigations, seeWatkins v. United States, 354 U.S. 178, 200

(1957);United States v. Rumely, 345 U.S. 41, 43 (1953);Russell v. United States, 369

U.S. 749, 777–778 (1962) (Justice Douglas dissenting). 397 383 U.S. 169 (1966).

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. 393

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. 394The 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.’’ 395Press releases and newsletters

are ‘‘[v]aluable and desirable’’ in ‘‘inform[ing] the public and other

Members’’ but neither are essential to the deliberations of the legislative body nor part of the deliberative process. 396

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, inUnited States

v. Johnson, 397 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
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398 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.’’ Id., 185. The question was similarly reserved inUnited States v.

Brewster, 408 U.S. 501, 529 n. 18 (1972), although Justices Brennan and Douglas

would have answered negatively. Id., 529, 540. 399 408 U.S. 501 (1972). 400 Id., 516. 401 Id., 526. 402The holding was reaffirmed inUnited 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.

of Representatives. The speech was charged as part of the conspiracy and extensive evidence concerning it was introduced at a trial.

It was this examination into the context of the speech—its authorship, motivation, and content—which the Court found foreclosed by

the speech-or-debate clause. 398

However, inUnited States v. Brewster, 399 while continuing to

assert that the clause ‘‘must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,’’ 400

the Court substantially reduced the scope of the coverage of the

clause. In upholding the validity of an indictment of a Member,

which charged that he accepted a bribe to be ‘‘influenced in his performance of official acts in respect to his action, vote, and decision’’

on legislation, the Court drew a distinction between a prosecution

that caused an inquiry into legislative acts or the motivation for

performance of such acts and a prosecution for taking or agreeing

to take money for a promise to act in a certain way. The former

is proscribed, the latter is not. ‘‘Taking a bribe is, obviously, no

part of the legislative process or function; it is not a legislative act.

It is not, by any conceivable interpretation, an act performed as a

part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act

necessary to a prosecution under this statute or this indictment.

When a bribe is taken, it does not matter whether the promise for

which the bribe was given was for the performance of a legislative

act as here or, as inJohnson, for use of a Congressman’s influence

with the Executive Branch.’’ 401 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. 402
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403 408 U.S. 606 (1972). 404 Id., 626. 405Language 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). InWheeldin 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, afterBivens v. Six Unknown Named Agents of the

Bureau of Narcotics, 403 U.S. 388 (1971). 406 103 U.S. 168 (1881). 407 387 U.S. 82 (1967). 408 395 U.S. 486 (1969). 409 408 U.S. 606 (1972).

Applying in the criminal context the distinction developed in

the civil cases between protected ‘‘legislative activity’’ and unprotected conduct prior to or subsequent to engaging in ‘‘legislative activity,’’ the Court inGravel v. United States, 403 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.’’ 404

Congressional Employees.—Until the most recent decision, it

was seemingly the basis of the decisions that while Members of

Congress may be immune from suit arising out of their legislative

activities, legislative employees who participate in the same activities under the direction of the Member or otherwise are responsible

for their acts if those acts be wrongful. 405 Thus, inKilbourn v.

Thompson, 406 the sergeant at arms of the House was held liable

for false imprisonment because he executed the resolution ordering

Kilbourn arrested and imprisoned.Dombrowski v. Eastland 407 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 inPowell v. McCormack, 408 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,

inGravel v. United States, 409 accepted a series of contentions urged

upon it not only by the individual Senator but by the Senate itself

appearing by counsel asamicus:‘‘that it is literally impossible, in

view of the complexities of the modern legislative process, with
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410 Id., 616–617. 411 Id., 618. 412 Id., 618–619. 413 Id., 619–620. 414 Id., 620–621.

Congress almost constantly in session and matters of legislative

concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the

Members’ performance that they must be treated as the latters’

alter ego; and that if they are not so recognized, the central role

of the Speech or Debate clause . . . will inevitably be diminished

and frustrated.’’ 410 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.’’ 411

TheGravelholding, however, does not so much extend congressional immunity to employees as it narrows the actual immunity

available to both aides and Members in some important respects.

Thus, the Court says, the legislators inKilbournwere 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. 412Dombrowskiwas 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.’’ 413AndPowellwas interpreted as simply holding that voting to

exclude plaintiff, which was all the House defendants had done,

was a legislative act immune from Member liability but not from

judicial inquiry. ‘‘None of these three cases adopted the simple

proposition that immunity was unavailable to House or committee

employees because they were not Representatives; rather, immunity was unavailable because they engaged in illegal conduct which

was not entitled to Speech or Debate Clause protection. . . . [N]o

prior case has held that Members of Congress would be immune if

they execute an invalid resolution by themselves carrying out an

illegal arrest, or if, in order to secure information for a hearing,

themselves seize the property or invade the privacy of a citizen.

Neither they nor their aides should be immune from liability or

questioning in such circumstances.’’ 414
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Cl. 2—Disabilities Compensation, Privileges

415 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES(Boston: 1833), § 864. 416 34 Stat. 948 (1907). 417 35 Stat. 626 (1909). Congress followed this precedent when the President

wished to appoint a Senator as Attorney General and the salary had been increased

pursuant to a process under which Congress did not need to vote to approve but

could vote to disapprove. The salary was temporarily reduced to its previous level.

87 Stat. 697 (1975). See also 89 Stat. 1108 (1975) (reducing the salary of a member

of the Federal Maritime Commission in order to qualify a Representative). 418The 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

toMarbury v. Madison, 1 Cr. (5 U.S.) 137 (1803).

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.’’ 415As 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, 416 Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office. 417The clause became a subject of discussion in

1937, when Justice Black was appointed to the Court, because Congress had recently increased the amount of pension available to

Justices retiring at seventy and Mr. Black’s Senate term had still

some time to run. The appointment was defended, however, with

the argument that inasmuch as Mr. Black was only fifty-one years

of age at the time, he would be ineligible for the ‘‘increased emolument’’ for nineteen years and it was not as to him an increased

emolument. 418In 1969, it was briefly questioned whether a Member of the House of Representatives could be appointed Secretary

of Defense because, under a salary bill enacted in the previous

Congress, the President would propose a salary increase, including

that of cabinet officers, early in the new Congress which would

take effect if Congress did not disapprove it. The Attorney General

ruled that inasmuch as the clause would not apply if the increase

were proposed and approved subsequent to the appointment, it
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419 42 Op. Atty. Gen. No. 36 (January 3, 1969). 420THE FEDERALIST, No. 76 (Hamilton) (J. Cooke ed. 1961), 514; 2 J. STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES(Boston: 1833), §§ 866–

869.421 1 A. HINDS’PRECEDENTS OF THE HOUSE OF REPRESENTATIVES(Washington:

1907), § 493; 6 C. CANNON’SPRECEDENTS OF THE HOUSE OF REPRESENTATIVES(Washington: 1936), §§ 63–64. 422 HINDS’, supra, §§ 496–499. 423 Cf.Right of a Representative in Congress To Hold Commission in National

Guard, H. Rept. No. 885, 64th Congress, 1st sess. (1916). 424 HINDS’, supra, §§ 486–492, 494; CANNON’S, supra, §§ 60–62. 425 An effort to sustain standing was rebuffed inSchlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).

similarly would not apply in a situation in which it was uncertain

whether the increase would be approved. 419

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. 420 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. 421Government contractors

and federal officers who resign before presenting their credentials

may be seated as Members of Congress. 422

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. 423Members have been unseated for accepting

appointment to military office during their terms of congressional

office, 424 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 litigatible matter. 425

SECTION7. 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,
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Sec. 7—Bills and Resolutions Legislative Process

be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it, with his

Objections to that House in which it shall have originated, who

shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds

of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it

shall likewise be reconsidered, and if approved by two thirds of

that House, it shall become a Law. But in all such Cases the

Votes of both Houses shall be determined by Yeas and Nays,

and the Names of the Persons voting for and against the Bill

shall be entered on the Journal of each House respectively. If

any Bill shall not be returned by the President within ten Days

(Sundays excepted) after it shall have been presented to him,

the Same shall be a Law, in like Manner as if he had signed

it, unless the Congress by their Adjournment prevent its Return in which Case it shall not be a Law.

Clause 3. Every Order, Resolution, or Vote to which the

Concurrence of the Senate and House of Representatives may

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 pow-
ART. I—LEGISLATIVE DEPARTMENT 137

Sec. 7—Bills and Resolutions Legislative Process

426THE FEDERALIST, No. 58 (J. Cooke ed. 1961), 392–395 (Madison). See United

States v. Munoz-Flores, 495 U.S. 385, 393–395 (1990). 427The issue of coverage is sometimes important, as in the case of the

TaxEquity 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 Assn. 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.den., 469 U.S. 1106 (1985). 428 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES(Boston: 1833), § 880. 429 United States v. Munoz-Flores, 495 U.S. 385 (1990). 430Twin City National Bank v. Nebeker, 167 U.S. 196 (1897). 431Millard v. Roberts, 202 U.S. 429 (1906). 432Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911). 433 Rainey v. United States, 232 U.S. 310 (1914). 434La Abra Silver Mining Co. v. United States, 175 U.S. 423, 453 (1899).

ers. 426 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. 427

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. 428 Thus, a Senate-initiated bill that provided for a monetary ‘‘special assessment’’ to pay into a crime victims fund did not

violate the clause, because it was a statute that created and raised

revenue to support a particular governmental program and was not

a law raising revenue to support Government generally. 429An 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. 430Neither 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. 431The substitution of a

corporation tax for an inheritance tax, 432 and the addition of a section imposing an excise tax upon the use of foreign-built pleasure

yachts, 433 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. 434He may sign within ten days (Sundays

excepted) after the bill is presented to him, even if that period ex-
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435 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).

436Gardner v. Collector, 6 Wall. (73 U.S.) 499 (1868). 437 Id., 504.See also Burgess v. Salmon, 97 U.S. 381, 383 (1878). 438Matthews v. Zane, 7 Wheat. (20 U.S.) 164, 211 (1822). 439Lapeyre v. United States, 17 Wall. (84 U.S.) 191, 198 (1873). 440Wright v. United States, 302 U. S. 583, 596 (1938). 441 Ibid. 442 Ibid.

tends beyond the date of the final adjournment of Congress. 435 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. 436A bill becomes a law on the date of its approval

by the President. 437When no time is fixed by the act it is effective

from the date of its approval, 438 which usually is taken to be the

first moment of the day, fractions of a day being disregarded. 439

The Veto Power

The veto provisions, the Supreme Court has told us, serve two

functions. On the one hand, they ensure that ‘‘the President shall

have suitable opportunity to consider the bills presented to him.

. . . It is to safeguard the President’s opportunity that Paragraph

2 of § 7 of Article I provides that bills which he does not approve

shall not become law if the adjournment of the Congress prevents

their return.’’ 440At 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.’’ 441The Court asserted that

‘‘[w]e should not adopt a construction which would frustrate either

of these purposes.’’ 442

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
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Sec. 7—Bills and Resolutions Legislative Process

443See Line Item Veto, Hearing before the Senate Committee on Rules and Administration, 99th Cong., 1st sess. (1985), esp. 10–20 (CRS memoranda detailing the

issues). Some publicists have even contended, through a strained interpretation of

clause 3, actually from its intended purpose to prevent Congress from subverting

the veto power by calling a bill by some other name, that the President already possesses the line-item veto, but no President could be brought to test the thesis. See

Pork Barrels and Principles - The Politics of the Presidential Veto, (Natl.Legal Center for the Public Interest, 1988) (collecting essays). 444 279 U.S. 655 (1929). 445 Id., 680. 446 Id., 684. 447 302 U.S. 583 (1938).

been debated whether Congress could by statute authorize a form

of the line-item veto, but, again, nothing passed. 443

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. InThe Pocket Veto Case, 444 the Court

held that the return of a bill to the Senate, where it originated, had

been prevented when the Congress adjourned its first sessionsine

diefewer than ten days after presenting the bill to the President.

The word ‘‘adjournment’’ was seen to have been used in the Constitution not in the sense of final adjournments but to any occasion

on which a House of Congress is not in session. ‘‘We think that

under the constitutional provision the determinative question in

reference to an ‘adjournment’ is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that ‘prevents’ the

President from returning the bill to the House in which it originated within the time allowed.’’ 445Because 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.’’ 446

However, inWright v. United States, 447 the Court held that the

President’s return of a bill on the tenth day after presentment, during a three-day adjournment by the originating House only, to the

Secretary of the Senate was an effective return. In the first place,

the Court thought, the pocket veto clause referred only to an adjournment of ‘‘the Congress,’’ and here only the Senate, the originating body, had adjourned. The President can return the bill to

the originating House if that body be in an intrasession adjournment, because there is no ‘‘practical difficulty’’ in effectuating the
140 ART. I—LEGISLATIVE DEPARTMENT

Sec. 7—Bills and Resolutions Legislative Process

448 Id., 589–590. 449 Id., 589. 450 Id., 595. 451 511 F. 2d 430 (D.C.Cir. 1974). The Administration declined to appeal the

case to the Supreme Court. The adjournment here was for five days. Subsequently,

the President attempted to pocket veto two other bills, one during a 32 day recess

and one during the period which Congress had adjournedsine diefrom the first to

the second session of the 93d Congress. After renewed litigation, the Administration

entered its consent to a judgment that both bills had become law, Kennedy v. Jones,

Civil Action No. 74–194 (D.D.C., decree entered April 13, 1976), and it was announced that President Ford ‘‘will use the return veto rather than the pocket veto

during intra-session and intersession recesses and adjournments of the Congress’’,

provided that the House to which the bill must be returned has authorized an officer to receive vetoes during the period it is not in session. President Reagan 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 51 (D.C.Cir. 1985), vacated and remanded to dismiss sub nom. Burke v.

Barnes, 479 U.S. 361 (1987). 452Missouri Pacific Ry. Co. v. Kansas, 248 U.S. 276 (1919). 453 20 Wall. (87 U.S.) 92 (1874).

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.’’ 448Such 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.’’ 449The concerns activating

the Court inThe Pocket Veto Casewere 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.’’ 450

The tension between the two cases, even though at a certain

level of generality they are consistent because of factual differences, has existed without the Supreme Court yet having occasion to review the issue again. But inKennedy v. Sampson, 451 an

appellate court held that a return is not prevented by an

intrasession adjournment of any length by one or both Houses of

Congress, so long as the originating House arranged for receipt of

veto messages. The court stressed that the absence of the evils

deemed to bottom the Court’s premises inThe 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. 452After a bill becomes law,

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

truism, the Court inThe Confiscation Cases 453 held that the immu-
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Sec. 7—Bills and Resolutions Legislative Process

454 12 Stat. 589 (1862). 455See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787

(rev. ed. 1937), 301–302, 304–305. 456S. Rept. No. 1335, 54th Congress, 2d Sess.; 4 A. HINDS’PRECEDENTS OF THE

HOUSE OF REPRESENTATIVES(Washington: 1907), § 3483. 457 Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378 (1798). 458 Act of June 30, 1932, § 407, 47 Stat. 414. 459See, e.g., Lend Lease Act of March 11, 1941, 55 Stat. 31; First War Powers

Act of December 18, 1941, 55 Stat. 838; Emergency Price Control Act of January

30, 1942, 56 Stat. 23; Stabilization Act of October 2, 1942, 56 Stat. 765; War Labor

Disputes Act of June 25, 1943, 57 Stat. 163, all providing that the powers granted

nity proclamation issued by the President in 1868 did not require

reversal of a decree condemning property seized under the

Confiscation Act of 1862. 454

Presentation of Resolutions

Concerned that Congress might endeavor to evade the veto

clause by designating a measure having legislative import as something other than a bill, the Framers inserted cl. 3. 455 Obviously,

if construed literally, the clause could have bogged down the intermediate stages of the legislative process, and Congress made practical adjustments regarding it. On the request of the Senate, the

Judiciary Committee in 1897 published a comprehensive report detailing how the clause had been interpreted over the years, and in

the same manner it is treated today. Briefly, it was shown that the

word ‘‘necessary’’ in the clause had come to refer to the necessity

required by the Constitution of law-making; that is, any ‘‘order,

resolution, or vote’’ if it is to have the force of law must be submitted. But ‘‘votes’’ taken in either House preliminary to the final passage of legislation need not be submitted to the other House or to

the President nor must resolutions passed by the Houses concurrently expressing merely the views of Congress. 456Also, it was settled as early as 1789 that resolutions of Congress proposing amendments to the Constitution need not be submitted to the President,

the Bill of Rights having been referred to the States without being

laid before President Washington for his approval—a procedure the

Court ratified in due course. 457

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, 458 and was really

furthered by the necessities of providing for national security and

foreign affairs immediately prior to and during World War II. 459
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to the President should come to an end upon adoption of concurrent resolutions to

that effect. 460From 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 inThe 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 id.,

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. 461 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. Rept. 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. SeeRegulatory 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). 462 462 U.S. 919 (1983). 463Shortly 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), affd. sub nom. Process Gas

Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983). Prior to

Chadha, an appellate court in AFGE v. Pierce, 697 F.2d 303 (D.C.Cir. 1982), had

voided a form of committee veto, a provision prohibiting the availability of certain

The proliferation of ‘‘congressional veto’’ provisions in legislation

over the years raised a series of interrelated constitutional questions. 460Congress 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. 461

In INS v. Chadha, 462 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. 463In the words of dissenting
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Sec. 7—Bills and Resolutions Legislative Process

funds for a particular purpose without the prior approval of the Committees on Appropriations. 464 Chadha, supra, 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., 959. 465 Id., 952 (citation omitted). 466 Id., 955–56. 467 478 U.S. 714 (1986).See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).

Justice White, the Court in Chadha ‘‘sound[ed] the death knell for

nearly 200 other statutory provisions in which Congress has reserved a ‘legislative veto.’ ’’ 464

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.’’ 465

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.’’ 466

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

its 1986 decision in Bowsher v. Synar. 467Among the rationales for

holding the Deficit Control Act unconstitutional was the Court’s assertion that Congress had, in effect, retained control over executive

action in a manner resembling a congressional veto.‘‘[A]s Chadha

makes clear, once Congress makes its choice in enacting legislation,
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468 Bowsher v. Synar, 478 U.S. 714, 733 (1986).This position was developed at

greater length in the concurring opinion of Justice Stevens. Id., 736. 469License Tax Cases, 5 Wall. (72 U.S.) 462, 471 (1867). 470 Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916). 471 Id., 12.

its participation ends.Congress can thereafter control the execution

of its enactment only indirectly—by passing new legislation.’’ 468Congress 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.

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,’’ 469 that it is ‘‘exhaustive’’ 470 or that it ‘‘embraces

every conceivable power of taxation.’’ 471 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.—In recent

years the Supreme Court has restored to Congress the power to tax

most of the subject matter which had previously been withdrawn
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Sec. 8—Powers of Congress Cl.1—Taxation

472 253 U.S. 245 (1920). 473 268 U.S. 501 (1925). 474 307 U.S. 277 (1939). 475 11 Wall. (78 U.S.) 113 (1871). 476Graves 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, 8 Wall. (75 U.S.) 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 Company, 17 Wall. (84 U.S.) 322 (1873). A

far-reaching extension of private immunity was granted in Pollock v. Farmers’ Loan

& Trust Co., 157 U.S. 429 (1895), where interest received by a private investor on

state or municipal bonds was held to be exempt from federal taxation. (Though relegated to virtual desuetude, Pollock was not expressly overruled until South Carolina v. Baker, 485 U.S. 505 (1988)). As the apprehension of this era subsided, the

doctrine of these cases was pushed into the background. It never received the same

wide application as did McCulloch v. Maryland, 4 Wheat. (17 U.S.) 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). Justice 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). 477 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,

112 S.Ct. 2408 (1992), a commerce clause case rather than a tax case. 478 12 Wheat. (25 U.S.) 419, 444 (1827).

from its reach by judicial decision. The holding of Evans v. Gore 472

and Miles v. Graham 473 that the inclusion of the salaries received

by federal judges in measuring the liability for a nondiscriminatory

income tax violated the constitutional mandate that the compensation of such judges should not be diminished during their continuance in office was repudiated in O’Malley v. Woodrough. 474 The

specific ruling of Collector v. Day 475 that the salary of a state officer is immune to federal income taxation also has been overruled. 476 But the principle underlying that decision—that Congress

may not lay a tax which would impair the sovereignty of the

States—is still recognized as retaining some vitality. 477

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, 478 a

closely divided Court declined to ‘‘regard it as a tax upon the municipality, though it might operate incidentally to reduce the be-
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479Snyder v. Bettman, 190 U.S. 249, 254 (1903). 480South Carolina v. United States, 199 U.S. 437 (1905). See also Ohio v.

Helvering, 292 U.S. 360 (1934). 481 220 U.S. 107 (1911). 482Greiner v. Lewellyn, 258 U.S. 384 (1922). 483Wheeler Lumber Co. v. United States, 281 U.S. 572 (1930). 484 Board of Trustees v. United States, 289 U.S. 48 (1933). 485 Allen v. Regents, 304 U.S. 439 (1938). 486Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949). 487Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926). 488 Helvering v. Powers, 293 U.S. 214 (1934). 489Willcuts v. Bunn, 282 U.S. 216 (1931). 490 Helvering v. Producers Corp., 303 U.S. 376 (1938), overruling Burnet v.

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

quest by the amount of the tax.’’ 479 When South Carolina embarked upon the business of dispensing alcoholic beverages, its

agents were held to be subject to the national internal revenue tax,

the ground of the holding being that in 1787 such a business was

not regarded as one of the ordinary functions of government. 480

Another decision marking a clear departure from the logic of

Collector v. Day was Flint v. Stone Tracy Co., 481 where the Court

sustained an act of Congress taxing the privilege of doing business

as a corporation, the tax being measured by the income. The argument that the tax imposed an unconstitutional burden on the exercise by a State of its reserved power to create corporate franchises

was rejected, partly in consideration of the principle of national supremacy, and partly on the ground that the corporate franchises

were private property. This case also qualified Pollock v. Farmers’

Loan & Trust Company to the extent of allowing interest on state

bonds to be included in measuring the tax on the corporation.

Subsequent cases have sustained an estate tax on the net estate of a decedent, including state bonds, 482 excise taxes on the

transportation of merchandise in performance of a contract to sell

and deliver it to a county, 483 on the importation of scientific apparatus by a state university, 484 on admissions to athletic contests

sponsored by a state institution, the net proceeds of which were

used to further its educational program, 485 and on admissions to

recreational facilities operated on a nonprofit basis by a municipal

corporation. 486 Income derived by independent engineering contractors from the performance of state functions, 487 the compensation of trustees appointed to manage a street railway taken over

and operated by a State, 488 profits derived from the sale of state

bonds, 489 or from oil produced by lessees of state lands, 490 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
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491South Carolina v. Baker, 485 U.S. 505, 517 (1988). 492 Id., 524. 493 New York v. United States, 326 U.S. 572, 584 (1946) (concurring opinion of

Justice Rutledge). 494 304 U.S. 405 (1938). 495 Id., 419–420.

neither the federal nor the state governments could tax income an

individual directly derived from any contract with another government.’’ 491 That rule, the Court observed, had already been rejected

in numerous decisions involving intergovernmental immunity. ‘‘We

see no constitutional reason for treating persons who receive interest on governmental bonds differently than persons who receive income from other types of contracts with the government, and no

tenable rationale for distinguishing the costs imposed on States by

a tax on state bond interest from the costs imposed by a tax on the

income from any other state contract.’’ 492

Scope of State Immunity From Federal Taxation.—Although there have been sharp differences of opinion among members of the Supreme Court in cases dealing with the tax immunity

of state functions and instrumentalities, it has been stated that ‘‘all

agree that not all of the former immunity is gone.’’ 493 Twice, the

Court has made an effort to express its new point of view in a

statement of general principles by which the right to such immunity shall be determined. However, the failure to muster a majority

in concurrence with any single opinion in the latter case leaves the

question very much in doubt. In Helvering v. Gerhardt, 494 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.’’ 495
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496 326 U.S. 572 (1946). 497 Id., 584. 498 Id., 589–590. 499 Id., 596. 500Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949). Cf. Massachusetts v.

United States, 435 U.S. 444 (1978). 501 485 U.S. 505 (1988).

The second attempt to formulate a general doctrine was made

in New York v. United States, 496 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.’’ 497 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.’’ 498 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.’’ 499 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. 500

Articulation of the current approach may be found in South

Carolina v. Baker. 501 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
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502 Id., 523. 503 Id., 524 n. 14. 504See also Article I, § 9, cl. 4. 505LaBelle Iron Works v. United States, 256 U.S. 377 (1921); Brushaber v.

Union Pacific R. Co., 240 U.S. 1 (1916); Head Money Cases, 112 U.S. 580 (1884). 506 462 U.S. 74 (1983). 507 Id., 85. 508Knowlton v. Moore, 178 U.S. 41 (1900). 509Fernandez 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). 510Florida v. Mellon, 273 U.S. 12 (1927).

burden falls on the [other government], as long as the tax does not

discriminate against the [other government] or those with which it

deals.’’ 502 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.’’ 503

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. 504 The rule of

uniformity for indirect taxes is easy to obey. It exacts 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.’’ 505 Even the geographical

limitation is a loose one, at least if United States v. Ptasynski 506

is followed. There, the Court upheld an exemption from a crude-oil

windfall-profits tax of ‘‘Alaskan oil,’’ defined geographically to include oil produced in Alaska (or elsewhere) north of the Arctic Circle. What is prohibited, the Court said, is favoritism to particular

States in the absence of valid bases of classification. Because Congress could have achieved the same result, allowing for severe climactic difficulties, through a classification tailored to the ‘‘disproportionate costs and difficulties . . . associated with extracting

oil from this region,’’ 507the 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. 508 A taxing statute does not

fail of the prescribed uniformity because its operation and incidence may be affected by differences in state laws. 509 A federal estate tax law which permitted deduction for a like tax paid to a

State was not rendered invalid by the fact that one State levied no

such tax. 510 The term ‘‘United States’’ in this clause refers only to

the States of the Union, the District of Columbia, and incorporated
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511Downes v. Bidwell, 182 U.S. 244 (1901). 512 194 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. 513License Tax Cases, 5 Wall. (72 U.S.) 462, 471 (1867). 514 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). 515 United States v. Yuginovich, 256 U.S. 450 (1921). 516 United States v. Constantine, 296 U.S. 287, 293 (1935). 517License Tax Cases, 5 Wall. (72 U.S.) 462, 471 (1867). 518Felsenheld v. United States, 186 U.S. 126 (1902). 519 In re Kollock, 165 U.S. 526 (1897). 520 United States v. Doremus, 249 U.S. 86 (1919). Cf. Nigro v. United States,

276 U.S. 332 (1928).

territories. Congress is not bound by the rule of uniformity in framing tax measures for unincorporated territories. 511 Indeed, in

Binns v. United States, 512 the Court sustained license taxes imposed by Congress but applicable only in Alaska, where the proceeds, although paid into the general fund of the Treasury, did not

in fact equal the total cost of maintaining the territorial government.

PURPOSES OF TAXATION

Regulation by Taxation

The discretion of Congress in selecting the objectives of taxation has also been held at times to be subject to limitations implied from the nature of the Federal System. Apart from matters

that Congress is authorized to regulate, the national taxing power,

it has been said, ‘‘reaches only existing subjects.’’ 513 Congress may

tax any activity actually carried on, such as the business of accepting wagers, 514 regardless of whether it is permitted or prohibited

by the laws of the United States 515 or by those of a State. 516 But

so-called federal ‘‘licenses,’’ so far as they relate to trade within

state limits, merely express, ‘‘the purpose of the government not to

interfere . . . with the trade nominally licensed, if the required

taxes are paid.’’ Whether the ‘‘licensed’’ trade shall be permitted at

all is a question for decision by the State. 517 This, nevertheless,

does not signify that Congress may not often regulate to some extent a business within a State in order to tax it more effectively.

Under the necessary-and-proper clause, Congress may do this very

thing. Not only has the Court sustained regulations concerning the

packaging of taxed articles such as tobacco 518 and oleomargarine, 519 ostensibly designed to prevent fraud in the collection

of the tax, it has also upheld measures taxing drugs 520 and fire-
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521Sonzinsky v. United States, 300 U.S. 506 (1937). 522Without 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). 523McCray v. United States, 195 U.S. 27 (1904). 524 United States v. Sanchez, 340 U.S. 42, 44 (1950). See also Sonzinsky v. United States, 300 U.S. 506, 513–514 (1937). 525Sunshine Coal Co. v. Adkins, 310 U.S. 381, 383 (1940). See also Head Money

Cases, 112 U.S. 580, 596 (1884).

arms, 521 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. 522

Extermination by Taxation

A problem of a different order is presented where the tax itself

has the effect of suppressing an activity or where it is coupled with

regulations that clearly have no possible relation to the collection

of the tax. Where a tax is imposed unconditionally, so that no other

purpose appears on the face of the statute, the Court has refused

to inquire into the motives of the lawmakers and has sustained the

tax despite its prohibitive proportions. 523 ‘‘It is beyond serious

question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed.

. . . The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be

secondary. . . . Nor does a tax statute necessarily fall because it

touches on activities which Congress might not otherwise regulate.

As was pointed out in Magnano Co. v. Hamilton, 292 U.S. 40, 47

(1934): ‘From the beginning of our government, the courts have

sustained taxes although imposed with the collateral intent of

effecting ulterior ends which, considered apart, were beyond the

constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishments.’ ’’ 524

But where the tax is conditional, and may be avoided by compliance with regulations set out in the statute, the validity of the

measure is determined by the power of Congress to regulate the

subject matter. If the regulations are within the competence of

Congress, apart from its power to tax, the exaction is sustained as

an appropriate sanction for making them effective; 525 otherwise it
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526 Child Labor Tax Case (Bailey v. Drexel Furniture Co.), 259 U.S. 20 (1922);

Hill v. Wallace, 259 U.S. 44 (1922); Helwig v. United States, 188 U.S. 605 (1903). 527 296 U.S. 287 (1935). 528 1 Stat. 24 (1789). 529 276 U.S. 394 (1928).

is invalid. 526 During the Prohibition Era, Congress levied a heavy

tax upon liquor dealers who operated in violation of state law. In

United States v. Constantine, 527 the Court held that this tax was

unenforceable after the repeal of the Eighteenth Amendment, since

the National Government had no power to impose an additional

penalty for infractions of state law.

Promotion of Business: Protective Tariff

The earliest examples of taxes levied with a view to promoting

desired economic objectives in addition to raising revenue were, of

course, import duties. The second statute adopted by the first Congress was a tariff act reciting that ‘‘it is necessary for the support

of government, for the discharge of the debts of the United States,

and the encouragement and protection of manufactures, that duties

be laid on goods, wares and merchandise imported.’’ 528 After being

debated for nearly a century and a half, the constitutionality of

protective tariffs was finally settled by the unanimous decision of

the Supreme Court in J. W. Hampton & Co. v. United States, 529

where Chief Justice Taft wrote: ‘‘The second objection to §315 is

that the declared plan of Congress, either expressly or by clear implication, formulates its rule to guide the President and his advisory Tariff Commission as one directed to a tariff system of protection that will avoid damaging competition to the country’s industries by the importation of goods from other countries at too low

a rate to equalize foreign and domestic competition in the markets

of the United States. It is contended that the only power of Congress in the levying of customs duties is to create revenue, and that

it is unconstitutional to frame the customs duties with any other

view than that of revenue raising.’’

The Chief Justice then observed that the first Congress in 1789

had enacted a protective tariff. ‘‘In this first Congress sat many

members of the Constitutional Convention of 1787. This Court has

repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction to

be given its provisions. . . . The enactment and enforcement of a

number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of 1789, are mat-
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Sec. 8—Powers of Congress Cl. 1—Taxation: Spending for Welfare

530 Id., 411–412. 531 3 WRITINGS OF THOMAS JEFFERSON (Library Edition, 1904), 147–149. 532See W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE

UNITED STATES (Chicago: 1953). 533THE FEDERALIST, Nos. 30 and 34 (J. Cooke ed. 1961) 187–193, 209–215. 534 Id., No. 41, 268–278. 535 1 Stat. 229 (1792). 536 2 Stat. 357 (1806).

ters of history. . . . Whatever we may think of the wisdom of a protection policy, we cannot hold it unconstitutional. So long as the

motive of Congress and the effect of its legislative action are to secure revenue for the benefit of the general government, the existence of other motives in the selection of the subject of taxes cannot

invalidate Congressional action.’’ 530

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.’’ 531 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, 532

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; 533 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. 534

From an early date Congress has acted upon the interpretation espoused by Hamilton. Appropriations for subsidies 535 and for an

ever increasing variety of ‘‘internal improvements’’ 536 constructed

by the Federal Government, had their beginnings in the adminis-
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537 In an advisory opinion, which it rendered for President Monroe at his request on the power of Congress to appropriate funds for public improvements, the

Court answered that such appropriations might be properly made under the war

and postal powers. See Albertsworth, Advisory Functions in the Supreme Court, 23

Geo. L. J. 643, 644–647 (1935). Monroe himself ultimately adopted the broadest

view of the spending power, from which, however, he carefully excluded any element

of regulatory or police power. See his Views of the President of the United States

on the Subject of Internal Improvements, of May 4, 1822, 2 MESSAGES AND PAPERS

OF THE PRESIDENTS (Richardson ed. 1906), 713–752. 538 127 U.S. 1 (188). 539 255 U.S. 180 (1921). 540 262 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). 541 160 U.S. 668 (1896). 542 Id., 681. 543 297 U.S. 1 (1936). See also Cleveland v. United States, 323 U.S. 329 (1945).

trations of Washington and Jefferson. 537 Since 1914, federal

grants-in-aid, sums of money apportioned among the States for

particular uses, often conditioned upon the duplication of the sums

by the recipient State, and upon observance of stipulated restrictions as to its use, have become commonplace.

The scope of the national spending power was brought before

the Supreme Court at least five times prior to 1936, but the Court

disposed of four of the suits without construing the ‘‘general welfare’’ clause. In the Pacific Railway Cases (California v. Pacific

Railroad Co.) 538 and Smith v. Kansas City Title Co., 539 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 the powers of the National Government over commerce, and 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, 540 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., 541

however, the Court had invoked ‘‘the great power of taxation to be

exercised for the common defence and general welfare’’ 542 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, 543 the Court gave its unqualified endorsement to Hamilton’s views on the taxing power.

Wrote Justice Roberts for the Court: ‘‘Since the foundation of the

Nation sharp differences of opinion have persisted as to the true

interpretation of the phrase. Madison asserted it amounted to no

more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is

a government of limited and enumerated powers, the grant of
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544 United States v. Butler, 297 U.S. 1, 65, 66 (1936). So settled is the issue that

recent attacks on federal grants-in-aid omit any challenge on the broad level and

rely 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). 545 Justice Stone, speaking for himself and two other Justices, dissented on the

ground that Congress was entitled when spending the national revenues for the

‘‘general welfare’’ to see to it that the country got its money’s worth thereof, and

that the condemned provisions were ‘‘necessary and proper’’ to that end. United

States v. Butler, 297 U.S. 1, 84–86 (1936). 546 301 U.S. 548 (1937).

power to tax and spend for the general national welfare must be

confined to the numerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and

appropriation are or may be necessary incidents of the exercise of

any of the enumerated legislative powers. Hamilton, on the other

hand, maintained the clause confers a power separate and distinct

from those later enumerated, is not restricted in meaning by the

grant of them, and Congress consequently has a substantive power

to tax and to appropriate, limited only by the requirement that it

shall be exercised to provide for the general welfare of the United

States. Each contention has had the support of those whose views

are entitled to weight. This court had noticed the question, but has

never found it necessary to decide which is the true construction.

Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these

leads us to conclude that the reading advocated by Justice Story is

the correct one. While, therefore, the power to tax is not unlimited,

its confines are set in the clause which confers it, and not in those

of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.’’ 544

Social Security Act Cases.—Although holding that the

spending power is not limited by the specific grants of power contained in Article I, § 8, the Court found, nevertheless, that it was

qualified by the Tenth Amendment, and on this ground ruled in

the Butler case that Congress could not use moneys raised by taxation to ‘‘purchase compliance’’ with regulations ‘‘of matters of

State concern with respect to which Congress has no authority to

interfere.’’ 545 Within little more than a year this decision was reduced to narrow proportions by Steward Machine Co. v. Davis, 546

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
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547 Id., 591. 548 Id., 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 & Hospital v.

Halderman, 451 U.S. 1 (1981). 549South Dakota v. Dole, 483 U.S. 203, 207 (1987). 550 Id., 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 (1937)). 551 Buckley v. Valeo, 424 U.S. 1, 90–91 (1976). 552 301 U.S. 548, 589, 590 (1937). 553 330 U.S. 127 (1947).

of the States,’’ the Court replied that relief of unemployment was

a legitimate object of federal expenditure under the ‘‘general welfare’’ clause, that the Social Security Act represented a legitimate

attempt to solve the problem by the cooperation of State and Federal Governments, that the credit allowed for state taxes bore a

reasonable relation ‘‘to the fiscal need subserved by the tax in its

normal operation,’’ 547 since state unemployment compensation payments would relieve the burden for direct relief borne by the national treasury. The Court reserved judgment as to the validity of

a tax ‘‘if it is laid upon the condition that a State may escape its

operation through the adoption of a statute unrelated in subject

matter to activities fairly within the scope of national policy and

power.’’ 548

An Unrestrained Federal Spending Power.—Little if any

constitutional controversy marks the debate over the modern exercise of the spending power. There are, of course, ‘‘general restrictions,’’ the first of which is that the power must be used in pursuit

of the general welfare. 549 However, great deference is judicially accorded Congress’ decision that a spending program advances the

general welfare, 550 and the Court has suggested that the question

whether a spending program provides for the general welfare may

not even be judicially noticeable. 551 Dispute, such as it is, turns on

the conditioning of funds.

Conditional Grants-in-Aid.—In the Steward Machine Company case, it was a taxpayer who complained of the invasion of the

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. 552 A decade later the right of

Congress to impose conditions upon grants-in-aid over the objection

of a State was squarely presented in Oklahoma v. CSC. 553 The

State objected to the enforcement of a provision of the Hatch Act,

whereby its right to receive federal highway funds would be diminished in consequence 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. Although it found that the

State had asserted a legal right which entitled it to an adjudication
ART. I—LEGISLATIVE DEPARTMENT 157

Sec. 8—Powers of Congress Cl. 1—Taxation: Spending for Welfare

554 Id., 143. 555Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Chief Justice Burger announcing judgment of the Court). 556See South Dakota v. Dole, 483 U.S. 203, 207–212 (1987). 557 Id., 207. See supra, nn. 549–551. 558 Ibid. 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 (1985). 559South Dakota v. Dole, 483 U.S. 203, 207–208 (1987). See Steward Machine

Co. v. Davis, 301 U.S. 548, 590 (1937); Ivanhoe Irrigation Dist. v. McCracken, 357

U.S. 275, 295 (1958). 560The relationship in South Dakota v. Dole, 483 U.S. 203, 208–209 (1987), in

which Congress conditioned access to certain highway funds on establishing a 21-

years-of-age drinking qualification was that the purpose of both funds and condition

was safe interstate travel. The federal interest in Oklahoma v. CSC, 330 U.S. 127,

143 (1947), as we have noted, was assuring proper administration of federal highway funds.

of its objection, the Court denied the relief sought 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 State 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.’’ 554

‘‘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.’’ 555 Standards purporting to channel Congress’ discretion have

been announced by the Court, but they amount to little more than

hortatory admonitions. 556 First, the conditions, like the spending

itself, must advance the general welfare, but the decision of that

rests largely if not wholly with Congress. 557 Second, since the

States may choose to receive or not receive the proffered funds,

Congress must set out the conditions unambiguously, so that the

States may rationally decide. 558 Third, it is suggested in the cases

that the conditions must be related to the federal interest for which

the funds are expended, 559 but, though it continues to repeat this

standard, it has never found a spending condition that did not survive scrutiny under this part of the test. 560 Fourth, the power to

condition funds may not be used to induce the States to engage in
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561South Dakota v. Dole, 483 U.S. 203, 210–211 (1987). 562Steward Machine Co. v. Davis, 301 U.S. 548, 589–590 (1937); South Dakota

v. Dole, 483 U.S. 203, 211–212 (1987). 563See North Carolina ex rel. Morrow v. Califano, 445 F.Supp. 532 (E.D.N.C.

1977) (three-judge court), affd. 435 U.S. 962 (1978). 564South Dakota v. Dole, 483 U.S. 203, 210 (1987). 565 Bell v. New Jersey, 461 U.S. 773 (1983); Bennett v. New Jersey, 470 U.S.

632 (1985); Bennett v. Kentucky Dept. of Education, 470 U.S. 656 (1985). 566 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., 112 S.Ct.

1360 (1992), with Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418

(1987). 567 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. 568 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). 569 301 U.S. 619 (1937).

activities that would themselves be unconstitutional. 561Fifth, 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,’’ 562 but again the

Court has never found a congressional condition to be coercive in

this sense. 563 Certain federalism restraints on other federal powers

seem not to be relevant to spending conditions. 564

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. 565 But it is also clear that recipients and potential recipients in a particular program may ordinarily sue to compel

the States to observe the standards. 566 Finally, it should be noted

that Congress has enacted a range of laws forbidding discrimination in federal assistance programs, that has considerable effect. 567

Earmarked Funds.—The appropriation of the proceeds of a

tax to a specific use does not affect the validity of the exaction, if

the general welfare is advanced and no other constitutional provision is violated. Thus a processing tax on coconut oil was sustained

despite the fact that the tax collected upon oil of Philippine production was segregated and paid into the Philippine Treasury. 568 In

Helvering v. Davis, 569 the excise tax on employers, the proceeds of

which were not earmarked in any way, although intended to provide funds for payments to retired workers, was upheld under the

‘‘general welfare’’ clause, the Tenth Amendment being found to be

inapplicable.

Debts of the United States.—The power to pay the debts of

the United States is broad enough to include claims of citizens aris-
ART. I—LEGISLATIVE DEPARTMENT 159

Sec. 8—Powers of Congress Cl. 2—Borrowing Power

570 United States v. Realty Company, 163 U.S. 427 (1896); Pope v. United

States, 323 U.S. 1, 9 (1944). 571 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). 572 2 Cr. (6 U.S.) 358 (1805). 573 Id., 396. 574 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (New

Haven: rev. ed. 1937), 144, 308–309. 575 Id., 310. 576Knox v. Lee (Legal Tender Cases), 12 Wall. (79 U.S.) 457 (1871), overruling

Hepburn v. Griswold, 8 Wall. (75 U.S.) 603 (1870).

ing on obligations of right and justice. 570 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. 571 Curiously enough, this power was first invoked to assist the United

States to collect a debt due to it. In United States v. Fisher, 572 the

Supreme Court sustained a statute which gave the Federal Government priority in the distribution of the estates of its insolvent debtors. The debtor in that case was the endorser of a foreign bill of

exchange that apparently had been purchased by the United

States. Invoking the ‘‘necessary and proper’’ clause, Chief Justice

Marshall deduced the power to collect a debt from the power to pay

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.’’ 573

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.’’ 574 When

this section was reached in the debates, Gouverneur Morris moved

to strike out the clause ‘‘and emit bills on the credit of the United

States.’’ Madison suggested that it might be sufficient ‘‘to prohibit

the making them a tender.’’ After a spirited exchange of views on

the subject of paper money, the convention voted, nine States to

two, to delete the words ‘‘and emit bills.’’ 575 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. 576
160 ART. I—LEGISLATIVE DEPARTMENT

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577Perry v. United States, 294 U.S. 330, 351 (1935). See also Lynch v. United

States, 292 U.S. 571 (1934). 578 E. PRENTICE & J. EGAN, THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION (Chicago: 1898), 14.

579That is, ‘‘cum merce (with merchandise).’’

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. 577

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

This clause serves a two-fold purpose: it is the direct source of

the most important powers that the Federal Government exercises

in peacetime, and, except for the due process and equal protection

clauses of the Fourteenth Amendment, it is the most important

limitation imposed by the Constitution on the exercise of state

power. The latter, restrictive operation of the clause was long the

more important one from the point of view of the constitutional

lawyer. Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from state legislation. 578 The result was that,

generally, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than

in that of its operation as a source of national power. The consequence of this historical progression was that the word ‘‘commerce’’ came to dominate the clause while the word ‘‘regulate’’ remained in the background. The so-called ‘‘constitutional revolution’’

of the 1930s, however, brought the latter word to its present prominence.

Definition of Terms

Commerce.—The etymology of the word ‘‘commerce’’ 579 carries

the primary meaning of traffic, of transporting goods across state

lines for sale. This possibly narrow constitutional conception was
ART. I—LEGISLATIVE DEPARTMENT 161

Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

580 9 Wheat. (22 U.S.) 1 (1824). 581 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.’’ 582Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 189 (1824). 583 Id., 190–194. 584 Id., 193. 585 As we will see, however, the crossing of state lines gives way in many later

formulations, or, rather, is supplemented with, a requirement of effect on interstate

commerce which may result from a wholly intrastate transaction. 586 E.g., United States v. Simpson, 252 U.S. 465 (1920); Caminetti v. United

States, 242 U.S. 470 (1917). 587 ‘‘Not only, then, may transactions be commerce though non-commercial; they

may be commerce though illegal and sporadic, and though they do not utilize comrejected by Chief Justice Marshall in Gibbons v. Ogden, 580 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. 581 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.’’ 582 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. 583

Marshall qualified the word ‘‘intercourse’’ with the word ‘‘commercial,’’ thus retaining the element of monetary transactions. 584

But, today, ‘‘commerce’’ in the constitutional sense, and hence

‘‘interstate commerce,’’ covers every species of movement of persons

and things, whether for profit or not, across state lines, 585 every

species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise, 586 every

species of commercial negotiation which will involve sooner or later

an act of transportation of persons or things, or the flow of services

or power, across state lines. 587
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

mon carriers or concern the flow of anything more tangible than electrons and information.’’ United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 549–550

(1944). 588Kidd v. Pearson, 128 U.S. 1 (1888); Oliver Iron Co. v. Lord, 262 U.S. 172

(1923); United States v. E. C. Knight Co., 156 U.S. 1 (1895); and see Carter v.

Carter Coal Co., 298 U.S. 238 (1936). 589Paul v. Virginia, 8 Wall. (75 U.S.) 168 (1869); and see the cases to this effect

cited in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 543–545,

567–568, 578 (1944). 590Federal Baseball League v. National League of Professional Baseball Clubs,

259 U.S. 200 (1922). When called on to reconsider its decision, the Court declined,

noting that Congress had not seen fit to bring the business under the antitrust laws

by legislation having prospective effect and that the business had developed under

the understanding that it was not subject to these laws, a reversal of which would

have retroactive effect. Toolson v. New York Yankees, 346 U.S. 356 (1953). In Flood

v. Kuhn, 407 U.S. 258 (1972), the Court recognized these decisions as aberrations,

but it thought the doctrine entitled to the benefits of stare decisis inasmuch as Congress was free to change it at any time. The same considerations not being present,

the Court has held that businesses, conducted on a multistate basis but built

around local exhibitions, are in commerce and subject to, inter alia, the antitrust

laws, in the instance of professional football, Radovich v. National Football League,

352 U.S. 445 (1957), professional boxing, United States v. International Boxing

Club, 348 U.S. 236 (1955), and legitimate theatrical productions. United States v.

Shubert, 348 U.S. 222 (1955). 591 Blumenstock Bros. v. Curtis Publishing Co., 252 U.S. 436 (1920). 592Williams 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). 593 Associated Press v. United States, 326 U.S. 1 (1945). 594 American Medical Association v. United States, 317 U.S. 519 (1943). Cf.

United States v. Oregon Medical Society, 343 U.S. 326 (1952).

There was a long period in the Court’s history when a majority

of the Justices, seeking to curb the regulatory powers of the Federal Government by various means, held that certain things were

not encompassed by the commerce clause because they were either

not interstate commerce or bore no sufficient nexus to interstate

commerce. Thus, at one time, the Court held that mining or manufacturing, even when the product would move in interstate commerce, was not reachable under the commerce clause; 588 it held insurance transactions carried on across state lines not commerce, 589

and that exhibitions of baseball between professional teams that

travel from State to State were not in commerce, 590 and that similarly the commerce clause was not applicable to the making of contracts for the insertion of advertisements in periodicals in another

State 591 or to the making of contracts for personal services to be

rendered in another State. 592 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. 593 The activities of a Group

Health Association, which serves only its own members, are ‘‘trade’’

and capable of becoming interstate commerce; 594 the business of
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

595 United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944). 596 ‘‘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, 9

Wheat. (22 U.S.) 1, 194 (1824). And see id., 195–196. 597 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 598Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). And see Hodel

v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 275–283 (1981). See

also Mulford v. Smith, 307 U.S. 38 (1939) (agricultural production). 599Swift & 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). 600 9 Wheat. (22 U.S.) 1, 194, 195 (1824). 601 New York v. Miln, 11 Pet. (36 U.S.) 102 (1837); License Cases, 5 How. (46

U.S.) 504 (1847); Passenger Cases, 7 How. (48 U.S.) 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 Railroad 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).

insurance when transacted between an insurer and an insured in

different States is interstate commerce. 595 But most important of

all there was the development of, or more accurately the return

to, 596 the rationales by which manufacturing, 597 mining, 598 business transactions, 599 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 demark ‘‘the exclusively internal commerce of a state.’’ While, of course, the phrase ‘‘may very properly

be restricted to that commerce which concerns more states than

one,’’ it is obvious that ‘‘[c]ommerce among the states, cannot stop

at the exterior boundary line of each state, but may be introduced

into the interior.’’ The Chief Justice then succinctly stated the rule,

which, though restricted in some periods, continues to govern the

interpretation of the clause. ‘‘The genius and character of the whole

government seem to be, that its action is to be applied to all the

external concerns of the nation, and to those internal concerns

which affect the states generally; but not to those which are completely within a particular state, which do not affect other states,

and with which it is not necessary to interfere, for the purpose of

executing some of the general powers of the government.’’ 600

Recognition of an ‘‘exclusively internal’’ commerce of a State, or

‘‘intrastate commerce’’ in today’s terms, was at times regarded as

setting out an area of state concern that Congress was precluded

from reaching. 601 While these cases seemingly visualized Congress’

power arising only when there was an actual crossing of state
164 ART. I—LEGISLATIVE DEPARTMENT

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602Swift & 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). 603 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 604 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., 444 U.S. 232, 241–243 (1980); Hodel v. Virginia

Surface Mining & Reclamation Assn., 452 U.S. 264 (1981). 605 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). 606Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 196 (1824). Commerce ‘‘among the

several States’’ does not comprise commerce of the District of Columbia nor of the

territories of the United States. Congress’ power over their commerce is an incident

of its general power over them. Stoutenburgh v. Hennick, 129 U.S. 141 (1889); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed.

Cas. 514 (No. 2067) (D. Oreg. 1865). Transportation between two points in the same

State, when a part of the route is a loop outside the State, is interstate commerce.

Hanley v. Kansas City Southern Ry. Co., 187 U.S. 617 (1903); Western Union Telegraph 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., 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. & N.R. Co. v. Nothnagle, 346 U.S. 128 (1953).

boundaries, this view ignored the Marshall’s equation of ‘‘intrastate

commerce,’’ which ‘‘affect[s] other states’’ or ‘‘with which it is necessary to interfere’’ in order to effectuate congressional power, with

those actions that are ‘‘purely’’ interstate. This equation came back

into its own, both with the Court’s stress on the ‘‘current of commerce’’ bringing each element in the current within Congress’ regulatory power, 602 with the emphasis on the interrelationships of industrial production to interstate commerce 603 but especially with

the emphasis that even minor transactions have an effect on interstate commerce 604 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. 605 ‘‘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.’’ 606

Regulate.—‘‘We are now arrived at the inquiry—’’ continued

the Chief Justice, ‘‘What is this power? It is the power to regulate;

that is, to prescribe the rule by which commerce is to be governed.

This power, like all others vested in congress, is complete in itself,

may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution . . . If, as has

always been understood, the sovereignty of congress, though lim-
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

607Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 196–197 (1824). 608 Brooks v. United States, 267 U.S. 432, 436–437 (1925). 609 United States v. Darby, 312 U.S. 100, 114 (1941). 610 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). 611 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). 612 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).

ited 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.’’ 607

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.’’ 608 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.’’ 609

The power has been exercised to enforce majority conceptions

of morality, 610 to ban racial discrimination in public accommodations, 611 and to protect the public against evils both natural and

contrived by people. 612 The power to regulate interstate commerce

is, therefore, rightly regarded as the most potent grant of authority

in § 8.

Necessary and Proper Clause.—All grants of power to Congress in § 8, as elsewhere, must be read in conjunction with the

final clause, cl. 18, of § 8, which authorizes Congress ‘‘[t]o make all
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613See infra. 614Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 195 (1824). 615 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 Railroad Commission v. Chicago, B. &

Q. R. Co., 257 U.S. 563 (1922) (same); Southern Railway Co. 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). 616 E.g., United States v. E. G. 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). 617 E.g., California v. United States, 320 U.S. 577 (1944); California v. Taylor,

353 U.S. 553 (1957). 618For 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 Metropolitan Transit

Auth., 469 U.S. 528 (1985).

Laws which shall be necessary and proper for carrying into Execution the foregoing powers.’’ 613 It will be recalled that Chief Justice

Marshall alluded to the power thus enhanced by this clause when

he said that the regulatory power did not extend ‘‘to those internal

concerns [of a state] . . . with which it is not necessary to interfere,

for thepurpose of executing some of the general powers of the government.’’ 614 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. 615

Federalism Limits on Exercise of Commerce Power.—As is

recounted below, prior to reconsideration of the federal commerce

power in the 1930s, the Court in effect followed a doctrine of ‘‘dual

federalism,’’ under which Congress’ power to regulate much activity

depended on whether it had a ‘‘direct’’ rather than an ‘‘indirect’’ effect on interstate commerce. 616 When the restrictive interpretation

was swept away during and after the New Deal, the question of

federalism limits respecting congressional regulation of private activities became moot. However, the States did in a number of instances engage in commercial activities that would be regulated by

federal legislation if the enterprise were privately owned; the Court

easily sustained application of federal law to these state proprietary activities. 617 However, as Congress began to extend regulation to state governmental activities, the judicial response was inconsistent and wavering. 618 While the Court may shift again to

constrain federal power on federalism grounds, at the present time
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619 New York v. United States, 112 S.Ct. 2408 (1992). For eleboration, see the

discussions under the supremacy clause and under the Tenth Amendment. 620 250 U.S. 199 (1919). 621 Id., 203. 622 E.g., Hoke v. United States, 227 U.S. 308 (1913) (transportation of women

for purposes of prostitution); Gooch v. United States, 297 U.S. 124 (1936) (kidnapping); Brooks v. United States, 267 U.S. 432 (1925) (stolen autos). For example, in

Scarborough v. United States, 431 U.S. 563 (1977), the Court upheld a conviction

for possession of a firearm by a felon upon a mere showing that the gun had sometime previously traveled in interstate commerce, and Barrett v. United States, 423

U.S. 212 (1976), upheld a conviction for receipt of a firearm on the same showing.

The Court does require Congress in these cases to speak plainly, in order to reach

such activity, inasmuch as historic state police powers are involved. United States

v. Bass, 404 U.S. 336 (1971).

the rule is that Congress lacks authority under the commerce

clause to regulate the States as States in some circumstances,

when the federal statutory provisions reach only the States and do

not bring the States under laws of general applicability. 619

Illegal Commerce

That Congress’ protective power over interstate commerce

reaches all kinds of obstructions and impediments was made clear

in United States v. Ferger. 620 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 inasmuch as

there could be no commerce in a fraudulent bill of lading, Congress

had no power to exercise criminal jurisdiction over them. Said

Chief Justice White: ‘‘But this mistakenly assumes that the power

of Congress is to be necessarily tested by the intrinsic existence of

commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it. We say

mistakenly assumes, because we think it clear that if the proposition were sustained it would destroy the power of Congress to

regulate, as obviously that power, if it is to exist, must include the

authority to deal with obstructions to interstate commerce . . . and

with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of Congress to regulate, although they are not interstate commerce in and

of themselves.’’ 621 Much of Congress’ criminal legislation is based

simply on the crossing of a state line as creating federal jurisdiction. 622

Interstate Versus Foreign Commerce

There are certain dicta urging or suggesting that Congress’

power to regulate interstate commerce restrictively is less than its

analogous power over foreign commerce, the argument being that

whereas the latter is a branch of the Nation’s unlimited power over
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623Lottery Case (Champion v. Ames), 188 U.S. 321, 373–374 (1903). 624 Brolan v. United States, 236 U.S. 216, 222 (1915). The most recent dicta to

this effect appears in Japan Line v. County of Los Angeles, 441 U.S. 434, 448–451

(1979), a ‘‘dormant’’ commerce clause case involving state taxation with an impact

on foreign commerce. In context, the distinction seems unexceptionable, but the language extends beyond context. 625License Cases, 5 How. (46 U.S.) 504, 578 (1847). 626Pittsburgh & Southern Coal Co. v. Bates, 156 U.S. 577, 587 (1895).

foreign relations, the former was conferred upon the National Government primarily in order to protect freedom of commerce from

state interference. The four dissenting Justices in the Lottery Case

endorsed this view in the following words: ‘‘The power to regulate

commerce with foreign nations and the power to regulate interstate

commerce, are to be taken diverso intuitu, for the latter was intended to secure equality and freedom in commercial intercourse as

between the States, not to permit the creation of impediments to

such intercourse; while the former clothed Congress with that

power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, 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.’’ 623

And twelve years later Chief Justice White, speaking for the

Court, expressed the same view, as follows: ‘‘In the argument reference is made to decisions of this court dealing with the subject

of the power of Congress to regulate interstate commerce, but the

very postulate upon which the authority of Congress to absolutely

prohibit foreign importations as expounded by the decisions of this

court rests is the broad distinction which exists between the two

powers and therefore the cases cited and many more which might

be cited announcing the principles which they uphold have obviously no relation to the question in hand.’’ 624

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.’’ 625 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.’’ 626 Today it is firmly established doctrine that the power to

regulate commerce, whether with foreign nations or among the several States, comprises the power to restrain or prohibit it at all

times for the welfare of the public, provided only the specific limita-
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627 United States v. Carolene Products Co., 304 U.S. 144, 147–148 (1938). 628 9 Wheat. (22 U.S.) 1, 217, 221 (1824). 629 96 U.S. 1 (1878). See also Western Union Telegraph Co. v. Texas, 105 U.S.

460 (1882). 630 Id., 9. ‘‘Commerce embraces appliances necessarily employed in carrying on

transportation by land and water.’’ Railroad Company v. Fuller, 17 Wall. (84 U.S.)

560, 568 (1873). 631 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.

tions imposed upon Congress’ powers, as by the due process clause

of the Fifth Amendment, are not transgressed. 627

Instruments of Commerce

The applicability of Congress’ power to the agents and instruments of commerce is implied in Marshall’s opinion in Gibbons v.

Ogden, 628 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., 629 a case closely

paralleling Gibbons v. Ogden in other respects also. ‘‘The powers

thus granted are not confined to the instrumentalities of commerce,

or the postal service known or in use when the Constitution was

adopted, but they keep pace with the progress of the country, and

adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stagecoach, from the sailing-vessel to the steamboat, from the coach and

the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to

meet the demands of increasing population and wealth. They were

intended for the government of the business to which they relate,

at all times and under all circumstances. As they were intrusted

to the general government for the good of the nation, it is not only

the right, but the duty, of Congress to see to it that intercourse

among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.’’ 630

The Radio Act of 1927 631 whereby ‘‘all forms of interstate and

foreign radio transmissions within the United States, its Terri-
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

632 ‘‘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. v. Nelson Bros. Bond & Mortgage

Co., 289 U.S. 266, 279 (1933). See also Fisher’s Blend Station v. Tax Comm., 297

U. S. 650, 654–655 (1936). 633 13 How. (54 U.S.) 518 (1852). 634 10 Stat 112, 6 (1852). 635Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 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). 636 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.

tories 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. 632

Congressional Regulation of Waterways

Navigation.—In Pennsylvania v. Wheeling & Belmont Bridge

Co., 633 the Court granted an injunction requiring that a bridge,

erected over the Ohio River under a charter from the State of Virginia, either be altered so as to admit of free navigation of the river

or else be entirely abated. The decision was justified on the basis

both of the commerce clause and of a compact between Virginia

and Kentucky, whereby both these States had agreed to keep the

Ohio River ‘‘free and common to the citizens of the United States.’’

The injunction was promptly rendered inoperative by an act of

Congress declaring the bridge to be ‘‘a lawful structure’’ and requiring all vessels navigating the Ohio to be so regulated as not to

interfere with it. 634 This act the Court sustained as within Congress’ power under the commerce clause, saying: ‘‘So far . . . as this

bridge created an obstruction to the free navigation of the river, in

view of the previous acts of Congress, they are to be regarded as

modified by this subsequent legislation; and, although it still may

be an obstruction in fact, [it] is not so in the contemplation of law.

. . . [Congress] having in the exercise of this power, regulated the

navigation consistent with its preservation and continuation, the

authority to maintain it would seem to be complete. That authority

combines the concurrent powers of both governments, State and

federal, which, if not sufficient, certainly none can be found in our

system of government.’’ 635 In short, it is Congress, and not the

Court, which is authorized by the Constitution to regulate commerce. 636
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

637 3 Wall. (70 U.S.) 713 (1866). 638 Id., 724–725. 639 Union Bridge Co. v. United States, 204 U.S. 364 (1907). See also

Monongahela Bridge Co. v. United States, 216 U.S. 177 (1910); Wisconsin v. Illinois,

278 U.S. 367 (1929). The United States may seek injunctive or declaratory relief requiring the removal of obstructions to commerce by those negligently responsible for

them or it may itself remove the obstructions and proceed against the responsible

party for costs. United States v. Republic Steel Corp., 362 U.S. 482 (1960); Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967). Congress’ power in

this area is newly demonstrated by legislation aimed at pollution and environmental

degradation. In confirming the title of the States to certain waters under the Submerged Lands Act, 67 Stat. 29 (1953), 43 U.S.C. § 1301 et seq., Congress was careful

to retain authority over the waters for purposes of commerce, navigation, and the

like. United States v. Rands, 389 U.S. 121, 127 (1967). 640Gibson v. United States, 166 U.S. 269 (1897). See also Bridge Co. v. United

States, 105 U.S. 470 (1882); United States v Rio Grande Irrigation Co., 174 U.S.

690 (1899); United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); Seattle v.

Oregon & W.R.R., 255 U.S. 56, 63 (1921); Economy Light Co. v. United States, 256

U.S. 113 (1921); United States v. River Rouge Co., 269 U.S. 411, 419 (1926); Ford

& Son v. Little Falls Co., 280 U.S. 369 (1930); United States v. Commodore Park,

324 U.S. 386 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956);

United States v. Rands, 389 U.S. 121 (1967).

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. 637 ‘‘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.’’ 638

Thus, Congress was within its powers in vesting the Secretary

of War with power to determine whether a structure of any nature

in or over a navigable stream is an obstruction to navigation and

to order its abatement if he so finds. 639 Nor is the United States

required to compensate the owners of such structures for their loss,

since they were always subject to the servitude represented by

Congress’ powers over commerce, and the same is true of the property of riparian owners that is damaged. 640 And while it was formerly held that lands adjoining nonnavigable streams were not
172 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

641 United States v. Cress, 243 U.S. 316 (1917). 642 United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 597 (1941);

United States v. Willow River Co., 324 U.S. 499 (1945). 643 United States v. Rio Grande Irrigation Co., 174 U.S. 690 (1899). 644 10 Wall. (77 U.S.) 557 (1871). 645 Id., 565.

subject to the above mentioned servitude, 641 this rule has been impaired by recent decisions; 642 and at any rate it would not apply

as to a stream rendered navigable by improvements. 643

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’ 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. 644 Here the question at issue was whether an act of

Congress, passed in 1838 and amended in 1852, which required

that steam vessels engaged in transporting passengers or merchandise upon the ‘‘bays, lakes, rivers, or other navigable waters of the

United States,’’ applied to the case of a vessel that navigated only

the waters of the Grand River, a stream lying entirely in the State

of Michigan. The Court ruled: ‘‘In this case it is admitted that the

steamer was engaged in shipping and transporting down Grand

River, goods destined and marked for other States than Michigan,

and in receiving and transporting up the river goods brought within the State from without its limits; . . . . So far as she was employed in transporting goods destined for other States, or goods

brought from without the limits of Michigan and destined to places

within that State, she was engaged in commerce between the

States, and however limited that commerce may have been, she

was, so far as it went, subject to the legislation of Congress. She

was employed as an instrument of that commerce; for whenever a

commodity has begun to move as an article of trade from one State

to another, commerce in that commodity between the States has

commenced.’’ 645

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
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

646 Id., 566. ‘‘The regulation of commerce implies as much control, as far-reaching 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). 647 Congress had the right to confer upon the Interstate Commerce Commission

the power to regulate interstate ferry rates, N.Y. Central R.R. v. Hudson County,

227 U.S. 248 (1913), and to authorize the Commission to govern the towing of vessels between points in the same State but partly through waters of an adjoining

State. Cornell Steamboat Co. v. United States, 321 U.S. 634 (1944). Congress’ power

over navigation extends to persons furnishing wharfage, dock, warehouse, and other

terminal facilities to a common carrier by water. Hence an order of the United

States Maritime Commission banning certain allegedly ‘‘unreasonable practices’’ by

terminals in the Port of San Francisco, and prescribing schedules of maximum free

time periods and of minimum charges was constitutional. California v. United

States, 320 U.S. 577 (1944). The same power also comprises regulation of the registry enrollment, license, and nationality of ships and vessels, the method of recording bills of sale and mortgages thereon, the rights and duties of seamen, the limitations of the responsibility of shipowners for the negligence and misconduct of their

captains and crews, and many other things of a character truly maritime. See The

Lottawanna, 21 Wall. (88 U.S.) 558, 577 (1875); Providence & N.Y. SS. Co. v. Hill

Mfg. Co., 109 U.S. 578, 589 (1883); The Hamilton, 207 U.S. 398 (1907); O’Donnell

v. Great Lakes Co., 318 U.S. 36 (1943). 648Pollard v. Hagan, 3 How. (44 U.S.) 212 (1845); Shively v. Bowlby, 152 U.S.

1 (1894).

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.’’ 646 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. 647

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, 648 but because of the servitude that

Congress’ power to regulate commerce imposes upon such streams,

the States, without the assent of Congress, practically are unable

to utilize their prerogative for power development purposes. Sensing no doubt that controlling power to this end must be attributed

to some government in the United States and that ‘‘in such matters
174 ART. I—LEGISLATIVE DEPARTMENT

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649Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U.S. 58, 80 (1898). 650 229 U.S. 53 (1913). 651 Id., 73, citing Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co.,

142 U.S. 254 (1891). 652 283 U.S. 423 (1931). 653 311 U.S. 377 (1940). 654 283 U.S., 455–456. See also United States v. Twin City Power Co., 350 U.S.

222, 224 (1956).

there can be no divided empire,’’ 649 the Court held in United States

v. Chandler-Dunbar Co.,650 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.’’ 651

Since the Chandler-Dunbar case, the Court has come, in effect,

to hold that it will sustain any act of Congress, which purports to

be for the improvement of navigation, whatever other purposes it

may also embody, nor does the stream involved have to be one

‘‘navigable in its natural state.’’ Such, at least, seems to be the sum

of its holdings in Arizona v. California, 652 and United States v. Appalachian Power Co. 653 In the former, the Court, speaking through

Justice Brandeis, said that it was not free to inquire into the motives ‘‘which induced members of Congress to enact the Boulder

Canyon Project Act,’’ adding: ‘‘As the river is navigable and the

means which the Act provides are not unrelated to the control of

navigation . . . the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress.

Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. . . . And the fact that

purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other

purposes would not alone have justified an exercise of congressional power.’’ 654

And in the Appalachian Power case, the Court, abandoning

previous holdings laying down the doctrine that to be subject to

Congress’ power to regulate commerce a stream must be ‘‘navigable

in fact,’’ said: ‘‘A waterway, otherwise suitable for navigation, is not

barred from that classification merely because artificial aids must

make the highway suitable for use before commercial navigation

may be undertaken,’’ provided there must be a ‘‘balance between

cost and need at a time when the improvement would be useful.

. . . Nor is it necessary that the improvements should be actually
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

655 311 U.S., 407, 409–410. 656 Id., 426. 657Oklahoma v. Atkinson Co., 313 U.S. 508, 523–533 passim (1941). 658 Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936). 659 Cf. Indiana v. United States, 148 U.S. 148 (1893). 660 12 Stat. 489 (1862); 13 Stat. 356 (1864); 14 Stat. 79 (1866). 661The result then as well as now might have followed from Congress’ power

of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the Court in this connection.

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.’’ 655

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.’’ 656 These views the Court has since reiterated. 657 Nor is it by

virtue of Congress’ power over navigation alone that the National

Government may develop water power. Its war powers and powers

of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect. 658

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. 659

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. 660

The litigation growing out of these and subsequent activities

settled several propositions. First, Congress may provide highways

and railways for interstate transportation; 661 second, it may char-
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662Thomson v. Union Pacific Railroad, 9 Wall. (76 U.S.) 579 (1870); California

v. Pacific Railroad Co. (Pacific Ry. Cases), 127 U.S. 1 (1888); Cherokee Nation v.

Southern Kansas Railway Co., 135 U.S. 641 (1890); Luxton v. North River Bridge

Co., 153 U.S. 525 (1894). 663 14 Stat. 66 (1866). 664 14 Stat. 221 (1866). 665 17 Stat. 353 (1873). 666Munn v. Illinois, 94 U.S. 113 (1877); Chicago B. & Q. R. Co. v. Iowa, 94 U.S.

155 (1877); Peik v. Chicago & Nw. Ry. Co., 94 U.S. 164 (1877); Pickard v. Pullman

Southern Car Co., 117 U.S. 34 (1886). 667Wabash, 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., 272 U.S. 605 (1926) (locomotive accessories); Pennsylvania R. v. Public Service Comm., 250 U.S. 566 (1919). But the Court has largely

exempted regulations with a safety purpose, even a questionable one. Brotherhood

of Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129 (1968). 668 24 Stat. 379 (1887).

ter 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. 662

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.’’ 663

An act of the same year provided federal chartering and protection

from conflicting state regulations to companies formed to construct

and operate telegraph lines. 664 Another act regulated the transportation by railroad of livestock so as to preserve the health and safety of the animals. 665

Congress’ entry into the rate regulation field was preceded by

state attempts to curb the abuses of the rail lines in the Middle

West, which culminated in the ‘‘Granger Movement.’’ Because the

businesses were locally owned, the Court at first upheld state laws

as not constituting a burden on interstate commerce; 666 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. 667 In

the following year, Congress passed the original Interstate Commerce Act. 668 A Commission was authorized to pass upon the ‘‘reasonableness’’ of all rates by railroads for the transportation of goods

or persons in interstate commerce and to order the discontinuance

of all charges found to be ‘‘unreasonable.’’ The Commission’s basic
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

669 154 U.S. 447 (1894). 670 ICC v. Alabama Midland Ry., 168 U.S. 144 (1897); Cincinnati, N.O. & Texas

Pacific Ry. v. ICC, 162 U.S. 184 (1896). 671 34 Stat. 584 (1906). 672 36 Stat. 539 (1910). 673These regulatory powers are now vested, of course, in the Federal Communications Commission. 674 49 Stat. 543 (1935). 675 41 Stat. 474 (1920). 676 54 Stat. 898 (1940), U.S.C. § 1 et seq. The two acts were ‘‘intended . . . to

provide a completely integrated interstate regulatory system over motor, railroad,

and water carriers.’’ United States v. Pennsylvania Railroad Co., 323 U.S. 612, 618–

619 (1945). The ICC’s powers include authority to determine the reasonableness of

a joint through international rate covering transportation in the United States and

abroad and to order the domestic carriers to pay reparations in the amount by

which the rate is unreasonable. Canada Packers v. Atchison, T. & S. F. Ry. Co., 385

U.S. 182 (1966), and cases cited. 677Disputes 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).

authority was upheld in ICC v. Brimson, 669 in which the Court

upheld the validity of the Act as a means ‘‘necessary and proper’’

for the enforcement of the regulatory commerce power and in which

it also sustained the Commission’s power to go to court to secure

compliance with its orders. Later decisions circumscribed somewhat

the ICC’s power. 670

Expansion of the Commission’s authority came in the Hepburn

Act of 1906 671 and the Mann-Elkins Act of 1910. 672 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. 673 By the Motor Carrier Act of 1935, 674 the ICC was authorized to regulate the transportation of persons and property by

motor vehicle common carriers.

The powers of the Commission today are largely defined by the

Transportation Acts of 1920 675 and 1940. 676 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. 677 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
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678 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. Co.

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). 679 Houston & Texas Railway 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., 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). 680Wisconsin Railroad Comm. 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.

begun as a method of restraint there has emerged a policy of encouraging a consistent national transportation policy. 678

Federal Regulation of Intrastate Rates (The Shreveport

Doctrine).—Although its statutory jurisdiction did not apply to

intrastate rate systems, the Commission early asserted the right to

pass on rates, which, though in effect on intrastate lines, gave

these lines competitive advantages over interstate lines the rates

of which the Commission had set. This power the Supreme Court

upheld in a case involving a line operating wholly intrastate in

Texas but which paralleled within Texas an interstate line operating between Louisiana and Texas; the Texas rate body had fixed

the rates of the intrastate line substantially lower than the rate

fixed by the ICC on the interstate line. ‘‘Wherever the interstate

and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress,

and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of

its constitutional authority and the States and not the Nation,

would be supreme in the national field.’’ 679

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. 680
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681 27 Stat. 531, 45 U.S.C. §§ 1–7. 682 32 Stat. 943, 45 U.S.C. §§ 8–10. 683Southern Railway Co. v. United States, 222 U.S. 20 (1911). See also Texas

& Pacific Ry. Co. v. Rigsby, 241 U.S. 33 (1916); United States v. California, 297 U.S.

175 (1936); United States v. Seaboard Air Line R., 361 U.S. 78 (1959). 684 34 Stat. 1415, 45 U.S.C. §§ 61–64. 685 Baltimore & Ohio Railroad v. ICC, 221 U.S. 612 (1911). 686 34 Stat. 232, held unconstitutional in part in the Employers’ Liability Cases,

207 U.S. 463 (1908). 687 35 Stat. 65, 45 U.S.C. §§ 51–60. 688The 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., 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.

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, 681

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. 682 The Court sustained this extension in language

much like that it would use in the Shreveport case three years

later. 683 These laws were followed by the Hours of Service Act of

1907, 684 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. 685

Most far-reaching of these regulatory measures were the Federal Employers Liability Acts of 1906 686 and 1908. 687 These laws

were intended to modify the common-law rules with regard to the

liability of employers for injuries suffered by their employees in the

course of their employment and under which employers were generally not liable. Rejecting the argument that regulation of such relationships between employers and employees was a reserved state

power, the Court adopted the argument of the United States that

Congress was empowered to do anything it might deem appropriate

to save interstate commerce from interruption or burdening and

that 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. 688
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689 Infra, pp. 189–190, 191 n. 739. 690The Pipe Line Cases, 234 U.S. 548 (1914). See also State Comm. 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). 691Public Utilities Comm. 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). 692 49 Stat. 863, 16 U.S.C. §§ 791a–825u. 693 52 Stat. 821, 15 U.S.C. §§ 717–717w. 694FPC v. Natural Gas Pipeline Co., 315 U.S. 575 (1942). 695 Id., 582. Sales to distributors by a wholesaler of natural gas delivered to it

from out-of-state sources are subject to FPC jurisdiction. Colorado-Wyoming Co. v.

FPC, 324 U.S. 626 (1945). See also Illinois Gas Co. v. Public Service Co., 314 U.S.

498 (1942); FPC v. East Ohio Gas Co., 338 U.S. 464 (1950). In Phillips Petroleum

Co. v. Wisconsin, 347 U.S. 672 (1954), the Court ruled that an independent company

engaged in one State in production, gathering, and processing of natural gas, which

it thereafter sells in the same State to pipelines that transport and sell the gas in

other States is subject to FPC jurisdiction. See also California v. Lo-Vaca Gathering

Co., 379 U.S. 366 (1965).

Legislation and litigation dealing with the organizational

rights of rail employees are dealt with elsewhere. 689

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 pipe lines 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. 690 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. 691 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 692 and three years

later vested the FPC with like authority over natural gas moving

in interstate commerce. 693 Thereafter, the Court sustained the

power of the Commission to set the prices at which gas originating

in one State and transported into another should be sold to distributors wholesale in the latter State. 694 ‘‘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.’’ 695

Other acts regulating commerce and communication originating in this period have evoked no basic constitutional challenge.
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

696 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). 697 52 Stat. 973, as amended. The CAB has now been abolished and its functions

are exercised by the Federal Aviation Commission, 49 U.S.C. § 106, as part of the

Department of Transportation. 698 26 Stat. 209 (1890); 15 U.S.C. §§ 1–7. 699 156 U.S. 1 (1895).

These include the Federal Communications Act of 1934, providing

for the regulation of interstate and foreign communication by wire

and radio, 696 and the Civil Aeronautics Act of 1938, providing for

the regulation of all phases of airborne commerce, foreign and

interstate. 697

Congressional Regulation of Commerce as Traffic

The Sherman Act: Sugar Trust Case.—Congress’ chief effort

to regulate commerce in the primary sense of ‘‘traffic’’ is embodied

in the Sherman Antitrust Act of 1890, the opening section of which

declares ‘‘every contract, combination in the form of trust or otherwise,’’ or ‘‘conspiracy in restraint of trade and commerce among the

several States, or with foreign nations’’ to be ‘‘illegal,’’ while the

second section makes it a misdemeanor for anybody to ‘‘monopolize

or attempt to monopolize any part of such commerce.’’ 698 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. 699 Here

the Government asked for the cancellation of certain agreements,

whereby the American Sugar Refining Company, had ‘‘acquired,’’ it

was conceded, ‘‘nearly complete control of the manufacture of refined sugar in the United States.’’

The question of the validity of the Act was not expressly discussed by the Court but was subordinated to that of its proper construction. The Court, in pursuance of doctrines of constitutional

law then dominant with it, turned the Act from its intended purpose and destroyed its effectiveness for several years, as that of the

Interstate Commerce Act was being contemporaneously impaired.

The following passage early in Chief Justice Fuller’s opinion for the

Court, sets forth the conception of the federal system that controlled the decision: ‘‘It is vital that the independence of the commercial power and of the police power, and the delimination between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest

bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government;

and acknowledged evils, however grave and urgent they may ap-
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700 Id., 13. 701 Id., 13–16. 702 Id., 17. The doctrine of the case boiled down to the proposition that commerce was transportation only, a doctrine that Justice Harlan undertook to refute

in his notable dissenting opinion. ‘‘Interstate commerce does not, therefore, consist

in transportation simply. It includes the purchase and sale of articles that are intended to be transported from one State to another—every species of commercial

intercourse among the States and with foreign nations’’ Id., 22. ‘‘Any combination,

pear 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.’’ 700

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. 701 Applying the above reasoning to the case before

it, the Court proceeded: ‘‘The object [of the combination] was manifestly private gain in the manufacture of the commodity, but not

through the control of interstate or foreign commerce. It is true

that the bill alleged that the products of these refineries were sold

and distributed among the several States, and that all the companies were engaged in trade or commerce with the several States

and with foreign nations; but this was no more than to say that

trade and commerce served manufacture to fulfill its function.

‘‘Sugar was refined for sale, and sales were probably made at

Philadelphia for consumption, and undoubtedly for resale by the

first purchasers throughout Pennsylvania and other States, and refined sugar was also forwarded by the companies to other States

for sale. Nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt,

whether executory or consummated, to monopolize commerce, even

though, in order to dispose of the product, the instrumentality of

commerce was necessarily invoked. There was nothing in the proofs

to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen that trade or commerce might

be indirectly affected was not enough to entitle complainants to a

decree.’’ 702
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other States or to be carried to other

States—a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition—affects, not incidentally, but directly, the

people of all the States; and the remedy for such an evil is found only in the exercise

of powers confided to a government which, this court has said, was the government

of all, exercising powers delegated by all, representing all, acting for all. McCulloch

v. Maryland, 4 Wheat. 316, 405,’’ Id., 33. 703 175 U.S. 211 (1899). 704 196 U.S. 375 (1905). The Sherman Act was applied to break up combinations

of interstate carriers in United States v. Trans-Missouri Freight Assn., 166 U.S. 290

(1897); United States v. Joint-Traffic Association, 171 U.S. 505 (1898); and Northern

Securities Co. v. United States, 193 U.S. 197 (1904).

In Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 229–

239 (1948), Justice Rutledge, for the Court, critically reviewed the jurisprudence of

the limitations on the Act and and the deconstruction of the judicial constraints. In

recent years, the Court’s decisions have permitted the reach of the Sherman Act to

expand along with the expanding notions of congressional power. Gulf Oil Corp. v.

Copp Paving Co., 419 U.S. 186 (1974); Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738 (1976); McLain v. Real Estate Board of New Orleans, 444 U.S.

232 (1980); Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). The Court, however, does insist that plaintiffs alleging that an intrastate activity violates the Act

prove the relationship to interstate commerce set forth in the Act. Gulf Oil Corp,

supra, 194–199.

Sherman Act Revived.—Four years later came the case of Addyston Pipe and Steel Co. v. United States, 703 in which the Antitrust Act was successfully applied as against 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 and Co. v. United States, 704

was decided.

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

Defendants in Swift were some thirty firms engaged in Chicago

and other cities in the business of buying livestock in their stockyards, in converting it at their packing houses into fresh meat, and

in the sale and shipment of such fresh meat to purchasers in other

States. The charge against them was that they had entered into a

combination to refrain from bidding against each other in the local

markets, to fix the prices at which they would sell, to restrict shipments of meat, and to do other forbidden acts. The case was appealed to the Supreme Court on defendants’ contention that certain

of the acts complained of were not acts of interstate commerce and

so did not fall within a valid reading of the Sherman Act. The

Court, however, sustained the Government on the ground that the
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705Swift and Co. v. United States, 196 U.S. 375, 396 (1905). 706 Id., 398–399. 707 Id., 399–401. 708 Id., 400.

‘‘scheme as a whole’’ came within the act, and that the local activities alleged were simply part and parcel of this general scheme. 705

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.’’ 706 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. 707

Thus, sales of the type that in the Sugar Trust case were thrust

to one side as immaterial from the point of view of the law, because

they enabled the manufacturer ‘‘to fulfill its function,’’ were here

treated as merged in an interstate commerce stream.

Thus, the concept of commerce as trade, that is, as traffic,

again entered the constitutional law picture, with the result that

conditions directly affecting interstate trade could not be dismissed

on the ground that they affected interstate commerce, in the sense

of interstate transportation, only ‘‘indirectly.’’ Lastly, the Court

added these significant words: ‘‘But we do not mean to imply that

the rule which marks the point at which State taxation or regulation becomes permissible necessarily is beyond the scope of interference by Congress in cases where such interference is deemed

necessary for the protection of commerce among the States.’’ 708

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
ART. I—LEGISLATIVE DEPARTMENT 185

Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

709Loewe 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 Assn., 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 Assn., 347 U.S. 186 (1954); United States v. Green, 350 U.S. 415

(1956); Callanan v. United States, 364 U.S. 587 (1961). 710 42 Stat. 159, 7 U.S.C. §§ 171–183, 191–195, 201–203. 711 42 Stat. 998 (1922), 7 U.S.C. §§ 1–9, 10a–17. 712 258 U.S. 495 (1922). 713 Id., 514. 714 Id., 515–516. See also Lemke v. Farmers’ Grain Co., 258 U.S. 50 (1922); Minnesota v. Blasius, 290 U.S. 1 (1933). 715 262 U.S. 1 (1923).

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. 709

Stockyards and Grain Futures Acts.—In 1921, Congress

passed the Packers and Stockyards Act 710 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 711 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, 712 which involved the former act, Chief

Justice Taft, speaking for the Court, said: ‘‘The object to be secured

by the act is the free and unburdened flow of livestock from the

ranges and farms of the West and Southwest through the great

stockyards and slaughtering centers on the borders of that region,

and thence in the form of meat products to the consuming cities of

the country in the Middle West and East, or, still as livestock, to

the feeding places and fattening farms in the Middle West or East

for further preparation for the market.’’ 713 The stockyards, therefore, were ‘‘not a place of rest or final destination.’’ They were ‘‘but

a throat through which the current flows,’’ and the sales there were

not merely local transactions. ‘‘They do not stop the flow;—but, on

the contrary’’ are ‘‘indispensable to its continuity.’’ 714

In Chicago Board of Trade v. Olsen, 715 involving the Grain Futures Act, the same course of reasoning was repeated. Speaking of

the Swift case, Chief Justice Taft remarked: ‘‘That case was a milestone in the interpretation of the commerce clause of the Constitution. It recognized the great changes and development in the business of this vast country and drew again the dividing line between

interstate and intrastate commerce where the Constitution in-
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716 Id., 35. 717 Id., 40. 718 Id., 37, quoting Stafford v. Wallace, 258 U.S. 495, 521 (1922). 719 48 Stat. 881, 15 U.S.C. § 77b et seq. 720 49 Stat. 803, 15 U.S.C. §§ 79–79z–6.

tended 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.’’ 716

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.’’ 717 Thus a practice

which demonstrably affects prices would also affect interstate trade

‘‘directly,’’ and so, even though local in itself, would fall within the

regulatory power of Congress. In the following passage, indeed,

Chief Justice Taft whittled down, in both cases, the ‘‘direct-indirect’’ formula to the vanishing point: ‘‘Whatever amounts to more

or less constant practice, and threatens to obstruct or unduly to

burden the freedom of interstate commerce is within the regulatory

power of Congress under the commerce clause, and it is primarily

for Congress to consider and decide the fact of the danger to meet

it. This court will certainly not substitute its judgment for that of

Congress in such a matter unless the relation of the subject to

interstate commerce and its effect upon it are clearly nonexistent.’’ 718

It was in reliance on the doctrine of these cases that Congress

first set to work to combat the Depression in 1933 and the years

immediately following. But in fact, much of its legislation at this

time marked a wide advance upon the measures just passed in review. They did not stop with regulating traffic among the States

and the instrumentalities thereof; they also essayed to govern production and industrial relations in the field of production. Confronted with this expansive exercise of Congress’ power, the Court

again deemed itself called upon to define a limit to the commerce

power that would save to the States their historical sphere, and especially their customary monopoly of legislative power in relation

to industry and labor management.

Securities and Exchange Commission.—Not all

antidepression legislation, however, was of this new approach. The

Securities Exchange Act of 1934 719 and the Public Utility Company

Act (‘‘Wheeler-Rayburn Act’’) of 1935 720 were not. The former cre-
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

721 Electric Bond Co. v. SEC, 303 U.S. 419 (1938); North American Co. v. SEC,

327 U.S. 686 (1946); American Power Co., v. SEC, 329 U.S. 90 (1946). 722 Appalachian Coals v. United States, 288 U.S. 344, 372 (1933). 723 48 Stat. 195.

ated the Securities and Exchange Commission and authorized it to

lay down regulations designed to keep dealing in securities honest

and aboveboard and closed the channels of interstate commerce

and the mails to dealers refusing to register under the act. The latter required the companies governed by it to register with the Securities and Exchange Commission and to inform it concerning

their business, organization and financial structure, all on pain of

being prohibited use of the facilities of interstate commerce and the

mails; while by § 11, the so-called ‘‘death sentence’’ clause, the

same act closed after a certain date the channels of interstate communication 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, 721 Gibbons v. Ogden furnishing the Court its principle reliance.

Congressional Regulation of Production and Industrial

Relations: Antidepression Legislation

In the words of Chief Justice Hughes, spoken in a case decided

a few days after President Franklin D. Roosevelt’s first inauguration, the problem then confronting the new Administration was

clearly set forth. ‘‘When industry is grievously hurt, when producing concerns fail, when unemployment mounts and communities

dependent upon profitable production are prostrated, the wells of

commerce go dry.’’ 722

National Industrial Recovery Act.—The initial effort of

Congress to deal with this situation was embodied in the National

Industrial Recovery Act of June 16, 1933. 723 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 respect-
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724 295 U.S. 495 (1935). 725 Id., 548. See also id., 546. 726 In United States v. Sullivan, 332 U.S. 689 (1948), the Court interpreted the

Federal Food, Drug, and Cosmetics Act of 1938 as applying to the sale by a retailer

of drugs purchased from his wholesaler within the State nine months after their

interstate shipment had been completed. The Court, speaking by Justice Black,

cited United States v. Walsh, 331 U.S. 432 (1947); Wickard v. Filburn, 317 U.S. 111

(1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); United States

v. Darby, 312 U.S. 100 (1941). Justice Frankfurter dissented on the basis of FTC

v. Bunte Bros., 312 U.S. 349 (1941). It is apparent that the Schechter case has been

thoroughly repudiated so far as the distinction between ‘‘direct’’ and ‘‘indirect’’ effects is concerned. Cf. Perez v. United States, 402 U.S. 146 (1971). See also

McDermott v. Wisconsin, 228 U.S. 115 (1913), which preceded the Schechter decision

by more than two decades.

The NIRA, however, was found to have several other constitutional infirmities

besides its disregard, as illustrated by the Live Poultry Code, of the ‘‘fundamental’’

distinction between ‘‘direct’’ and ‘‘indirect’’ effects, namely, the delegation of

uncanalized 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. 727 48 Stat. 31 (1933). 728 United States v. Butler, 297 U.S. 1, 63–64, 68 (1936).

ing 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, 724 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.’’ 725 In short, the

case was governed by the ideology of the Sugar Trust case, which

was not mentioned in the Court’s opinion. 726

Agricultural Adjustment Act.—Congress’ second attempt to

combat the Depression comprised the Agricultural Adjustment Act

of 1933. 727 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. 728

Bituminous Coal Conservation Act.—The third measure to

be disallowed was the Guffey-Snyder Bituminous Coal Conserva-
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729 49 Stat. 991 (1935). 730 Carter v. Carter Coal Co., 298 U.S. 238 (1936). 731 Id., 308–309. 732 48 Stat. 1283 (1934).

tion Act of 1935. 729 The statute created machinery for the regulation of the price of soft coal, both that sold in interstate commerce

and that sold ‘‘locally,’’ and other machinery for the regulation of

hours of labor and wages in the mines. The clauses of the act dealing with these two different matters were declared by the act itself

to be separable so that the invalidity of the one set would not affect

the validity of the other, but this strategy was ineffectual. A majority of the Court, speaking by Justice Sutherland, held that the act

constituted one connected scheme of regulation, which, inasmuch

as it invaded the reserved powers of the States over conditions of

employment in productive industry, was violative of the Constitution. 730 Justice Sutherland’s opinion set out from Chief Justice

Hughes’ assertion in the Schechter case of the ‘‘fundamental’’ character of the distinction between ‘‘direct’’ and ‘‘indirect’’ effects, that

is to say, from the doctrine of the Sugar Trust case. It then proceeded: ‘‘Much stress is put upon the evils which come from the

struggle between employers and employees over the matter of

wages, working conditions, the right of collective bargaining, etc.,

and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce

is greatly affected thereby. But . . . the conclusive answer is that

the evils are all local evils over which the Federal Government has

no legislative control. The relation of employer and employee is a

local relation. At common law, it is one of the domestic relations.

The wages are paid for the doing of local work. Working conditions

are obviously local conditions. The employees are not engaged in or

about commerce, but exclusively in producing a commodity. And

the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local

work undertaken to accomplish that local result. Such effect as

they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds

to its importance. It does not alter its character.’’ 731

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, 732 ordered the

compulsory retirement of superannuated employees of interstate

carriers, and provided that they be paid pensions out of a fund

comprising compulsory contributions from the carriers and their

present and future employees. In Railroad Retirement Board v.
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733 295 U.S. 330 (1935). 734 Id., 374. 735 Id., 379, 384. 736 326 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). 737 301 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

Alton R. Co., 733 however, a closely divided Court held this legislation to be in excess of Congress’ power to regulate commerce and

contrary to the due process clause of the Fifth Amendment. Said

Justice Roberts for the majority: ‘‘We feel bound to hold that a pension plan thus imposed is in no proper sense a regulation of the

activity of interstate transportation. It is an attempt for social ends

to impose by sheer fiat noncontractual incidents upon the relation

of employer and employee, not as a rule or regulation of commerce

and transportation between the States, but as a means of assuring

a particular class of employees against old age dependency. This is

neither a necessary nor an appropriate rule or regulation affecting

the due fulfillment of the railroads’ duty to serve the public in

interstate transportation.’’ 734

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.’’ 735 Under subsequent legislation, an excise is levied on interstate carriers and their employees, while by separate

but parallel legislation a fund is created in the Treasury out of

which pensions are paid along the lines of the original plan. The

constitutionality of this scheme appears to be taken for granted in

Railroad Retirement Board v. Duquesne Warehouse Co. 736

National Labor Relations Act.—The case in which the

Court reduced the distinction between ‘‘direct’’ and ‘‘indirect’’ effects to the vanishing point and thereby placed Congress in the position to regulate productive industry and labor relations in these

industries was NLRB v. Jones & Laughlin Steel Corp. 737 Here the
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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 (Cambridge: 1951), 759–765. 738 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq. 739The NLRA was enacted not only against the backdrop of depression, although obviously it went far beyond being a mere antidepression measure, but Congress could as well look to its experience in railway labor legislation. In 1898, Congress passed the Erdman Act, 30 Stat. 424, which attempted to influence the unionization of railroad workers and facilitate negotiations with employers through mediation. The statute fell largely into disuse because the railroads refused to mediate.

Additionally, in Adair v. United States, 208 U.S. 161 (1908), the Court struck down

a section of the law outlawing ‘‘yellow-dog contracts,’’ by which employers exacted

promises of workers to quit or not to join unions as a condition of employment. The

Court held the section not to be a regulation of commerce, there being no connection

between an employee’s membership in a union and the carrying on of interstate

commerce. Cf. Coppage v. Kansas, 236 U.S. 1 (1915).

The Court did uphold in Wilson v. New, 243 U.S. 332 (1917), a congressional

settlement of a threatened rail strike through the enactment of an eight-hour day

and a time-and-a-half for overtime for all interstate railway employees. The national

emergency confronting the Nation was cited by the Court but with the implication

that the power existed in more normal times, suggesting that Congress’ powers were

not as limited as some judicial decisions had indicated.

Congress’ enactment of the Railway Labor Act in 1926, 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., was sustained by a Court decision admitting the connection between interstate commerce and union membership as a substantial one.

Texas & N.L.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 (1930). A subsequent decision sustained the application of the Act to ‘‘back shop’’ employees of an

interstate carrier who engaged in making heavy repairs on locomotives and cars

withdrawn from service for long periods, the Court finding that the activities of

these employees were related to interstate commerce. Virginian Ry. Co. v. System

Federation No. 40, 300 U.S. 515 (1937).

statute involved was the National Labor Relations Act of 1935, 738

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. 739

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 ef-
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740 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38, 41–42 (1937). 741 NLRB v. Fruehauf Trailer Co., 301 U.S. 49 (1937); NLRB v. Friedman-Harry

Marks Clothing Co., 301 U.S. 58 (1937). 742 NLRB v. Fainblatt, 306 U.S. 601, 606 (1939). 743 Howell Chevrolet Co. v. NLRB, 346 U.S. 482 (1953). 744 Journeymen Plumbers’ Union v. County of Door, 359 U.S. 354 (1959). 745 NLRB v. Reliance Fuel Oil Co., 371 U.S. 224 (1963). 746 Id., 226. See also Guss v. Utah Labor Board, 353 U.S. 1, 3 (1957); NLRB

v. Fainblatt, 306 U.S. 601, 607 (1939). 747 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).

fects 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.’’ 740

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, 741

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. 742 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, 743 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, 744 and to a dispute

involving a retail distributor of fuel oil, all of whose sales were

local, but who obtained the oil from a wholesaler who imported it

from another State. 745

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.’’ 746 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. 747

Fair Labor Standards Act.—In 1938, Congress enacted the

Fair Labor Standards Act. The measure prohibited not only the
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748 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). 749 United States v. Darby, 312 U.S. 100, 115 (1941). 750 Id., 113, 114, 118.

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.’’ 748 Sustaining an indictment

under the act, a unanimous Court, speaking through Chief Justice

Stone, said: ‘‘The motive and purpose of the present regulation are

plainly to make effective the congressional conception of public policy that interstate commerce should not be made the instrument of

competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the

commerce and to the States from and to which the commerce

flows.’’ 749 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. 750 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
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751 Id., 123–124. 752 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). 753 Cf. Mitchell v. H. B. Zachry Co., 362 U.S. 310, 316–318 (1960). 754 75 Stat. 65. 755 80 Stat. 830. 756 29 U.S.C. §§ 203(r), 203(s). 757 392 U.S. 183 (1968). 758 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).

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.’’ 751

Subsequent decisions of the Court took a very broad view of

which employees should be covered by the Act, 752 and in 1949 Congress to some degree narrowed the permissible range of coverage

and disapproved some of the Court’s decisions. 753 But in 1961, 754

with extensions in 1966, 755 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. 756

The ‘‘enterprise concept’’ was sustained by the Court in Maryland

v. Wirtz. 757 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. 758

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,
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759 50 Stat. 246, 7 U.S.C. § 601 et seq. 760 315 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). 761 Id., 315 U.S., 118–119. 762 317 U.S. 111 (1942). 763 52 Stat. 31, 7 U.S.C. §§ 612c, 1281–1282 et seq.

1937, 759 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., 760 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 regulatory power granted by the commerce

clause to Congress. Hence the reach of that power extends to those

intrastate activities which in a substantial way interfere with or

obstruct the exercise of the granted power.’’ 761

In Wickard v. Filburn, 762 a still deeper penetration by Congress into the field of production was sustained. As amended by the

act of 1941, the Agricultural Adjustment Act of 1938, 763 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
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764 Id., 317 U.S., 128–129. 765 Id., 120–124. In United States v. Rock Royal Co-operative, 307 U.S. 533

(1939), the Court sustained an order under the Agricultural Marketing Agreement

Act of 1937, 50 Stat. 246, regulating the price of milk in certain instances. Said Justice Reed for the majority of the Court: ‘‘The challenge is to the regulation ‘of the

price to be paid upon the sale by a dairy farmer who delivers his milk to some country plant.’ It is urged that the sale, a local transaction, is fully completed before any

interstate commerce begins and that the attempt to fix the price or other elements

of that incident violates the Tenth Amendment. But where commodities are bought

for use beyond State lines, the sale is a part of interstate commerce. We have likewise held that where sales for interstate transportation were commingled with

intrastate transactions, the existence of the local activity did not interfere with the

federal power to regulate inspection of the whole. Activities conducted within State

lines do not by this fact alone escape the sweep of the Commerce Clause. Interstate

commerce may be dependent upon them. Power to establish quotas for interstate

marketing gives power to name quotas for that which is to be left within the State

of production. Where local and foreign milk alike are drawn into a general plan for

protecting the interstate commerce in the commodity from the interferences, burdens and obstructions, arising from excessive surplus and the social and sanitary

evils of low values, the power of the Congress extends also to the local sales.’’ Id.,

568–569.

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.’’ 764 And it elsewhere stated: ‘‘Questions of the power of Congress are not to be decided by reference to any formula which

would give controlling force to nomenclature such as ‘production’

and ‘indirect’ and foreclose consideration of the actual effects of the

activity in question upon interstate commerce. . . . The Court’s recognition of the relevance of the economic effects in the application

of the Commerce Clause . . . has made the mechanical application

of legal formulas no longer feasible.’’ 765

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 sov-
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ereignty, 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

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
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766 United States v. The William, 28 Fed. Cas. 614, 620–623 (No. 16,700) (D.

Mass. 1808). See also Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 191 (1824); United

States v. Marigold, 9 How. (50 U.S.) 560 (1850). 767 289 U.S. 48 (1933). 768 Id., 57, 58. 769 5 Stat. 566, 28. 770 9 Stat. 237 (1848). 771 24 Stat. 409.

strange process, it has been merged or extinguished, and now exists no where.’’ 766

Foreign Commerce: Protective Tariffs.—Tariff laws have

customarily contained prohibitory provisions, and such provisions

have been sustained by the Court under Congress’ revenue powers

and under its power to regulate foreign commerce. For the Court

in Board of Trustees v. United States, 767 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, cl. 1. But because the

taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. The contrary is well established. Gibbons v. Ogden, 9 Wheat. 1, 202. ‘Under the power to regulate foreign commerce Congress imposes duties on importations,

give drawbacks, pass embargo and nonintercourse laws, and make

all other regulations necessary to navigation, to the safety of passengers, and the protection of property.’ Groves v. Slaughter, 15

Pet. 449, 505. The laying of duties is ‘a common means of executing

the power.’ 2 Story on the Constitution, 1088.’’ 768

Foreign Commerce: Banned Articles.—The forerunners of

more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. This power Congress has exercised since

1842. In that year it forbade the importation of obscene literature

or pictures from abroad. 769 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. 770

Such legislation guarding against the importation of noxiously

adulterated foods, drugs, or liquor has been on the statute books

ever since. In 1887, the importation by Chinese nationals of smoking opium was prohibited, 771 and subsequent statutes passed in
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772 35 Stat. 614; 38 Stat. 275. 773 29 Stat. 605. 774 192 U.S. 470 (1904). 775 223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947). 776 239 U.S. 325 (1915). 777 Id., 329. 778 236 U.S. 216 (1915). 779Groves v. Slaughter, 15 Pet. (40 U.S.) 449, 488–489 (1841). 780 312 U.S. 100 (1941). 781The judicial history of the argument may be examined in the majority and

dissenting opinions in Hammer v. Dagenhart, 247 U.S. 251 (1918), a five-to-four decision, in which the majority held Congress not to be empowered to ban from the

channels of interstate commerce goods made with child labor, since Congress’ power

was to prescribe the rule by which commerce was to be carried on and not to pro1909 and 1914 made it unlawful for anyone to import it. 772 In

1897, Congress forbade the importation of any tea ‘‘inferior in purity, quality, and fitness for consumption’’ as compared with a legal

standard. 773 The Act was sustained in 1904, in the leading case of

Buttfield v. Stranahan. 774 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. 775

In Weber v. Freed, 776 an act prohibiting the importation and

interstate transportation of prize-fight films or of pictorial representation of prize fights was upheld. Chief Justice White grounded his opinion for a unanimous Court on the complete and total

control over foreign commerce possessed by Congress, in contrast

implicitly to the lesser power over interstate commerce. 777 And in

Brolan v. United States, 778 the Court rejected as wholly inappropriate citation of cases dealing with interstate commerce on the

question of Congress’ power to prohibit foreign commerce. It has

been earlier noted, however, that the purported distinction is one

that the Court both previously to and subsequent to these opinions

has rejected.

Interstate Commerce: Power to Prohibit Questioned.—The

question whether Congress’ power to regulate commerce ‘‘among

the several States’’ embraced the power to prohibit it furnished the

topic of one of the most protracted debates in the entire history of

the Constitution’s interpretation, a debate the final resolution of

which in favor of congressional power is an event of first importance for the future of American federalism. The issue was as early

as 1841 brought forward by Henry Clay, in an argument before the

Court in which he raised the specter of an act of Congress forbidding the interstate slave trade. 779 The debate was concluded ninety-nine years later by the decision in United States v. Darby, 780 in

which the Fair Labor Standards Act was sustained. 781
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hibit it, except with regard to those things the character of which—diseased cattle,

lottery tickets—was inherently evil. With the majority opinion, compare Justice

Stone’s unanimous opinion in United States v. Darby, 312 U.S. 100, 112–124 (1941),

overruling Hammer v. Dagenhart. See also Corwin, The Power of Congress to Prohibit Commerce, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW (Chicago: 1938), 103. 782 23 Stat. 31. 783 32 Stat. 791. 784 33 Stat. 1264. 785 33 Stat. 1269. 786 37 Stat. 315. 787 39 Stat. 1165. 788 Illinois Central Railroad v. McKendree, 203 U.S. 514 (1906). See also United

States v. DeWitt, 9 Wall. (76 U.S.) 41 (1870). 789Lottery Case (Champion v. Ames), 188 U.S. 321 (1903). 790 28 Stat. 963. 791 143 U.S. 110 (1892).

Interstate Commerce: National Prohibitions and State

Police Power.—The earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. In 1884, the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden. 782

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. 783 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. 784 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. 785 In 1912, a similar exclusion of diseased nursery stock was decreed, 786 while by

the same act and again by an act of 1917, 787 the Secretary of Agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those

above described for the prevention of the spread of animal disease.

While the Supreme Court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate

shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce, 788 this view has

today been abandoned.

The Lottery Case.—The first case to come before the Court in

which the issues discussed above were canvassed at all thoroughly

was Champion v. Ames, 789 involving the act of 1895 ‘‘for the suppression of lotteries.’’ 790 An earlier act excluding lottery tickets

from the mails had been upheld in the case of In re Rapier, 791 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
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792 9 Wheat. (22 U.S.) 1, 227 (1824). 793 114 U.S. 622, 630 (1885). 794 Hoke v. United States, 227 U.S. 308, 322 (1913).

National Government, and the right to engage in foreign and

interestate commerce comes from the Constitution itself or is anterior to it.

How difficult the Court found the question produced by the act

of 1895, forbidding any person to bring within the United States

or to cause to be ‘‘carried from one State to another’’ any lottery

ticket, or an equivalent thereof, ‘‘for the purpose of disposing of the

same,’’ was shown by the fact that the case was argued three times

before the Court and the fact that the Court’s decision finally sustaining the act was a five-to-four decision. The opinion of the

Court, on the other hand, prepared by Justice Harlan, marked an

almost unqualified triumph at the time for the view that Congress’

power to regulate commerce among the States included the power

to prohibit it, especially to supplement and support state legislation

enacted under the police power. Early in the opinion, extensive

quotation is made from Chief Justice Marshall’s opinion in Gibbons

v. Ogden, 792 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, 793 that

‘‘[t]he power to regulate commerce among the several States is

granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.’’

Following the wake of the Lottery Case, Congress repeatedly

brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the States in

the exercise of their reserved powers, thereby aiding them in the

repression of a variety of acts and deeds objectionable to public morality. The conception of the Federal System on which the Court

based its validation of this legislation was stated by it in 1913 in

sustaining the Mann ‘‘White Slave’’ Act in the following words:

‘‘Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction . . . but it must be kept

in mind that we are one people; and the powers reserved to the

States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral.’’ 794 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 de-
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795 United States v. Hill, 248 U.S. 420, 425 (1919). 796 267 U.S. 432 (1925). 797 41 Stat. 324 (1919), 18 U.S.C., §§ 2311–2313. 798 Id., 436–439. See also Kentucky Whip & Collar Co. v. I.C.R. Co., 299 U.S.

334 (1937). 799 29 U.S.C. §§ 201–219. 800 United States v. Darby, 312 U.S. 100 (1941). 801 247 U.S. 251 (1918).

vise 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.’’ 795

In Brooks v. United States, 796 the Court sustained the National Motor Vehicle Theft Act 797 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 deemed to present any obstacle to the exercise of the regulatory

power of Congress. 798

The Darby Case.—In sustaining the Fair Labor Standards

Act 799 in 1941, 800 the Court expressly overruled Hammer v.

Dagenhart. 801 ‘‘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
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802 Id., 312 U.S., 116–117. 803 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 (Chicago: 1938),

62. 804 New York v. United States, 112 S.Ct. 2408, 2418–2419 (1992).

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, was a precedent, as it then had has long since been exhausted. It should be and now is overruled.’’ 802

The Commerce Clause as a Source of National Police Power

The Court has several times expressly noted that Congress’ exercise of power under the commerce clause is akin to the police

power exercised by the States. 803 It should follow, therefore, that

Congress may achieve results unrelated to purely commercial aspects of commerce, and this result in fact has often been accomplished. Paralleling and contributing to this movement is the virtual disappearance of the distinction between interstate and intrastate commerce.

Is There an Intrastate Barrier to Congress’ Commerce

Power?—Not only has there been legislative advancement and judicial acquiescence in commerce clause jurisprudence, but the

melding of the Nation into one economic union has been more than

a little responsible for the reach of Congress’ power. ‘‘The volume

of interstate commerce and the range of commonly accepted objects

of government regulation have . . . expanded considerably in the

last 200 years, and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within

the scope of Congress’ commerce power.’’ 804

Reviewing the doctrinal developments laid out in the prior

pages, it is evident that Congress’ commerce power is fueled by

four very interrelated principles of decision, some old, some of recent vintage.
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805 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). 806Katzenbach v. McClung, 379 U.S. 294, 298, 300–302 (1964); Daniel v. Paul,

395 U.S. 298, 305 (1969). 807 ‘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. 808 332 U.S. 689 (1948).

First, the commerce power attaches to the crossing of state

lines, and Congress has validly legislated to protect interstate travelers from harm, to prevent such travelers from being deterred in

the exercise of interstate traveling, and to prevent them from being

burdened. Many of the 1964 public accommodations law applications have been premised on the point that larger establishments

do serve interstate travelers and that even small stores, restaurants, and the like may serve interstate travelers, and, therefore, it is permissible to regulate them to prevent or deter discrimination. 805

Second, it may not be persons who cross state lines but some

object that will or has crossed state lines, and the regulation of a

purely intrastate activity may be premised on the presence of the

object. Thus, the public accommodations law reached small establishments that served food and other items that had been purchased from interstate channels. 806 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. 807 This reach is not of newly-minted origin. In United States v. Sullivan, 808 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
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809 Id., 698–699. 810 317 U.S. 111 (1942). 811Fry v. United States, 421 U.S. 542, 547 (1975). 812See Maryland v. Wirtz, 392 U.S. 183, 188–193 (1968). 813 Hodel v. Indiana, 452 U.S. 314, 323–324 (1981). 814 Id., 324.

completed an interstate shipment and are being held for future

sales in purely local or intrastate commerce.’’ 809

Third, Congress’ power reaches not only transactions or actions

that occasion the crossing of state or national boundaries but extends as well to activities that, though local, ‘‘affect’’ commerce, a

combination of the commerce power enhanced by the necessary and

proper clause. The seminal case, of course, is Wickard v.

Filburn, 810 sustaining federal regulation of a crop of wheat grown

on a farm and intended solely for home consumption. The premise

was that if it were never marketed, it supplied a need otherwise

to be satisfied only in the market, and that if prices rose it might

be induced onto the market. ‘‘Even activity that is purely intrastate

in character may be regulated by Congress, where the activity,

combined with like conduct by others similarly situated, affects

commerce among the States or with foreign nations.’’ 811 Coverage

under federal labor and wage-and-hour laws after the 1930s

showed the reality of this doctrine. 812

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.’’ 813 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.’’ 814 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
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815 Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 281

(1981) (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)). 816 Id., 276, 277. The scope of review is restated in Preseault v. ICC, 494 U.S.

1, 17 (1990). Then-Justice Rehnquist, concurring in the two Hodel cases, objected

that the Court was making it appear that no constitutional limits existed under the

commerce clause, whereas in fact it was necessary that a regulated activity must

have a substantial effect on interstate commerce, not just some effect. He thought

it a close case that the statutory provisions here met those tests. Supra, 452 U.S.,

307–313. 817 402 U.S. 146 (1971). 818 Russell v. United States, 471 U.S. 858, 862 (1985). 819Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991).

regulate interstate commerce.’’ 815 Judicial review is narrow. Congress’ determination of an ‘‘effect’’ must be deferred to if it is rational, and Congress must have acted reasonably in choosing the

means. 816

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, 817 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’ power

to determine that the activity was within a class the activities of

which did affect interstate commerce, thus affording Congress the

opportunity to regulate the entire class. While the Perez Court and

the congressional findings emphasized that loan-sharking was generally part of organized crime operating on a national scale and

that loan-sharking was commonly used to finance organized crime’s

national operations, subsequent cases do not depend upon a defensible assumption of relatedness in the class.

Thus, the Court applied the federal arson statute to the attempted ‘‘torching’’ of a defendant’s two-unit apartment building.

The Court merely pointed to the fact that the rental of real estate

‘‘unquestionably’’ affects interstate commerce and that ‘‘the local

rental of an apartment unit is merely an element of a much broader commercial market in real estate.’’ 818 The apparent test of

whether aggregation of local activity can be said to affect commerce

was made clear next in an antitrust context. 819 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 partici-
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820 Id., 330–332. The decision was 5-to–4, with the dissenters, however, of the

view that Congress could reach the activity, only that they thought Congress had

not. 821 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). 822 Civil Rights Act of 1964, Title II, 78 Stat. 241, 243, 42 U.S.C. § 2000a et seq. 823 42 U.S.C. § 2000a (b). 824 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). 825Katzenbach v. McClung, 379 U.S. 294 (1964). 826Daniel v. Paul, 395 U.S. 298 (1969). 827 Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 301–304 (1964).

pants and potential participants in the market from which the surgeon was being excluded. 820

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. 821 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. 822 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. 823 The Court sustained the Act as applied to a downtown

Atlanta motel which did serve interstate travelers, 824 to an out-ofthe-way restaurant in Birmingham that catered to a local clientele

but which had spent 46 percent of its previous year’s out-go on

meat from a local supplier who had procured it from out-ofstate, 825 and to a rurally-located amusement area operating a

snack bar and other facilities, which advertised in a manner likely

to attract an interstate clientele and that served food a substantial

portion of which came from outside the State. 826

Writing for the Court in Heart of Atlanta Motel and McClung,

Justice Clark denied that Congress was disabled from regulating

the operations of motels or restaurants because those operations

may be, or may appear to be, ‘‘local’’ in character. ‘‘[T]he power of

Congress to promote interstate commerce also includes the power

to regulate the local incidents thereof, including local activities in

both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.’’ 827
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828 Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964). 829 Id., 252–253; Katzenbach v. McClung, 379 U.S. 294, 299–301 (1964). 830 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). 831The ‘‘open housing’’ provision of the 1968 Civil Rights Act, Title VIII, 82

Stat. 73, 81, 42 U.S.C. § 3601, was based on the commerce clause, but in Jones v.

Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court held that antidiscriminationin-housing legislation could be based on the Thirteenth Amendment and made operative against private parties. Similarly, the Court has concluded that although § 1

of the Fourteenth Amendment is judicially enforceable only against ‘‘state action,’’

Congress is not so limited under its enforcement authorization of § 5. United States

v. Guest, 383 U.S. 745, 761, 774 (1966) (concurring opinions); Griffin v.

Breckenridge, 403 U.S. 88 (1971). 832 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).

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.’’ 828 The evidence did, in fact, noted the Justice, support Congress’ conclusion

that racial discrimination impeded interstate travel by more than

20 million black citizens, which was an impairment Congress could

legislate to remove. 829

The commerce clause basis for civil rights legislation in respect

to private discrimination was important because of the understanding that Congress’ power to act under the Fourteenth and Fifteenth

Amendments was limited to official discrimination. 830 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. 831

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 constitutes state

crimes on the basis of some contact, however tangential, with a

matter subject to congressional regulation even though the federal

interest in the acts may be minimal. 832 Examples of this type of

federal criminal statute abound, including the Mann Act designed
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833 18 U.S.C. § 2421. 834 18 U.S.C. § 2312. 835 18 U.S.C. § 1201. 836 18 U.S.C. § 1951. And see, 18 U.S.C. § 1952. 837Title II, 82 Stat. 159 (1968), 18 U.S.C. § 891 et seq. 838Perez v. United States, 402 U.S. 146 (1971). See also Russell v. United

States, 471 U.S. 858 (1985). 839 E.g., laws that bar firearms within a 1000 feet of a school, 104 Stat. 4844

(1990), 18 U.S.C. § 922(q), and that punish carjacking when a firearm is used. 106

Stat. 3384 (1992), 18 U.S.C. § 2119. 840Thus, 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

to outlaw interstate white slavery, 833 the Dyer Act punishing interstate transportation of stolen automobiles, 834 and the Lindbergh

Law punishing interstate transportation of kidnapped persons. 835

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. . . .’’ 836 With the expansion

of the scope of the reach of ‘‘commerce’’ the statute potentially

could reach crimes involving practically all business concerns, although it appears to be used principally against organized crime.

To date, the most far-reaching measure to be sustained by the

Court has been the ‘‘loan-sharking’’ prohibition of the Consumer

Credit Protection Act. 837 The title affirmatively finds that extortionate credit transactions affect interstate commerce because loan

sharks are in a class largely controlled by organized crime with a

substantially adverse effect on interstate commerce. Upholding the

statute, the Court found that though individual loan-sharking activities may be intrastate in nature, still it is within Congress’

power to determine that it was within a class the activities of

which did affect interstate commerce, thus affording Congress

power to regulate the entire class. 838

Expansion of federal criminal jurisdiction proceeds apace with

the outflow from each Congress. 839

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. 840 This circumstance does not, however, of itself signify
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or to another State, Woodruff v. Parham, 8 Wall. (75 U.S.) 123 (1869), which prevents its application to interstate commerce, although Chief Justice Marshall

thought to the contrary, Brown v. Maryland, 12 Wheat. (25 U.S.) 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). 841THE 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, 201. The States ‘‘retain [the taxing] authority in the most absolute and unqualified sense[.]’’ Id., 199. 842 9 Wheat. (22 U.S.) 1, 11 (1824). Justice Johnson’s assertion, concurring, was

to the same effect. Id., 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 (Philadelphia: 1865), 14–15. 843 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., 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, Inc. 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., 470–471 & nn. 169–175.

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, 841 while some

of the powers which are vested in the National Government admit

of their ‘‘concurrent’’ exercise by the States, others are of their very

nature ‘‘exclusive,’’ and hence render the notion of a like power in

the States ‘‘contradictory and repugnant.’’ As an example of the latter kind of power, Hamilton mentioned the power of Congress to

pass a uniform naturalization law. Was the same principle expected to apply to the power over foreign and interstate commerce?

Unquestionably one of the great advantages anticipated from

the grant to Congress of power over commerce was that state interferences with trade, which had become a source of sharp discontent

under the Articles of Confederation, would be thereby brought to

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.’’ 842 In other words,

the constitutional grant was itself a regulation of commerce in the

interest of uniformity. 843

That, however, the commerce clause, unimplemented by congressional legislation, took from the States any and all power over

foreign and interstate commerce was by no means conceded and
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844The 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 (New Haven: rev. ed. 1937), 625. 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. 845Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 203 (1824). 846 Id., 210–211. 847The 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., 887 n. 4.

was, indeed, counterintuitive, considering the extent of state regulation that previously existed before the Constitution. 844 Moreover,

legislation by Congress regulative of any particular phase of commerce would raise the question whether the States were entitled to

fill the remaining gaps, if not by virtue of a ‘‘concurrent’’ power

over interstate and foreign commerce, then by virtue of ‘‘that immense mass of legislation’’ as Marshall termed it, ‘‘which embraces

everything within the territory of a State, not surrendered to the

general government,’’ 845 in a word, the ‘‘police power.’’

The text and drafting record of the commerce clause fails,

therefore, without more ado, to settle the question of what power

is left to the States to adopt legislation regulating foreign or interstate commerce in greater or lesser measure. To be sure, in cases

of flat conflict between an act or acts of Congress regulative of such

commerce and a state legislative act or acts, from whatever state

power ensuing, the act of Congress is today recognized, and was

recognized by Marshall, as enjoying an unquestionable supremacy. 846 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. 847
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848 Id., 9 Wheat. (22 U.S.), 13–14, 16. 849 Id., 17–18, 209. In Sturges v. Crowninshield, 4 Wheat. (17 U.S.) 122, 193–

196 (1819), Chief Justice Marshall denied that the grant of the bankruptcy power

to Congress was exclusive. See also Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820)

(militia). 850 2 Pet. (27 U.S.) 245, 252 (1829). 851 12 How. (53 U.S.) 299 (1851). The issue of exclusive federal power and the

separate issue of the dormant commerce clause was present in the License Cases,

5 How. (46 U.S.) 504 (1847), and the Passenger Cases, 7 How. (48 U.S.) 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. Id., 5 How. (46 U.S.), 573; Id., 7 How. (48 U.S.), 464.

Thus, it has been judicially established that the commerce

clause is not only a ‘‘positive’’ grant of power to Congress, but it

is also a ‘‘negative’’ constraint upon the States; that is, the doctrine

of the ‘‘dormant’’ commerce clause, though what is dormant is the

congressional exercise of the power, not the clause itself, under

which the Court may police state taxation and regulation of interstate commerce, became well established.

Webster, in Gibbons, argued that a state grant of a monopoly

to operate steamships between New York and New Jersey not only

contravened federal navigation laws but violated the commerce

clause as well, because that clause conferred an exclusive power

upon Congress to make the rules for national commerce, although

he conceded that, the grant to regulate interstate commerce was so

broad as to reach much that the States had formerly had jurisdiction over, the courts must be reasonable in interpretation. 848 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. 849

Chief Justice Marshall originated the concept of the ‘‘dormant

commerce clause’’ in Willson v. Black Bird Creek Marsh Co., 850 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, 851 the Court, upholding a state law that required

ships to engage a local pilot when entering or leaving the port of
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852 Id., 317–320. Chief Justice Taney had formerly taken the strong position

that Congress’ power over commerce was not exclusive, supra, n. 10, but he acquiesced silently in the Cooley opinion. A modern echo of Cooley is Ray v. Atlantic Richfield Co., 435 U.S. 151, 179–180 (1978), in which the Court, inter alia, sustained

a state requirement that vessels not satisfying certain design requirements be escorted by tugboats in Puget Sound. Noting the requirement’s similarity ‘‘to a local

pilotage requirement,’’ the Court, following Cooley, pronounced it ‘‘not the type of

regulation that demands a uniform, national rule.’’ But, in an apparent departure

from Cooley, the Court also observed that it did not appear that ‘‘the requirement

impedes the free and efficient flow of interstate and foreign commerce. . . .’’ See also

Goldstein v. California, 412 U.S. 546, 552–560 (1973), in which, in the context of

the copyright clause, the Court, approving Cooley for commerce clause purposes, refused to find the copyright clause either fully or partially exclusive.

853 Reading Railroad v. Pennsylvania, 15 Wall. (82 U.S.) 232 (1873). For cases

in which the commerce clause basis was intermixed with other express or implied

powers, see Crandall v. Nevada, 6 Wall. (73 U.S.) 35 (1868); Steamship Co. v.

Portwardens, 6 Wall. (73 U.S.) 31 (1867); Woodruff v. Parham, 8 Wall. (75 U.S.) 123

(1868). Chief Justice Marshall, in Brown v. Maryland, 12 Wheat. (25 U.S.) 419, 488–

489 (1827), indicated, in dicta, that a state tax might violate the commerce clause.

854 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, 8 Wall. (75 U.S.) 123 (1869).

Philadelphia, enunciated a doctrine of partial federal exclusivity.

According to Justice Curtis’ opinion, the state act was valid on the

basis of a distinction between those subjects of commerce which

‘‘imperatively demand a single uniform rule’’ operating throughout

the country and those which ‘‘as imperatively’’ demand ‘‘that diversity which alone can meet the local necessities of navigation,’’ that

is to say, of commerce. As to the former, the Court held Congress’

power to be ‘‘exclusive,’’ as to the latter, it held that the States enjoyed a power of ‘‘concurrent legislation.’’ 852 The Philadelphia pilotage requirement was of the latter kind.

Thus, the contention that the federal power to regulate interstate commerce was exclusive of state power yielded to a rule of

partial exclusivity. Among the welter of such cases, the first actually to strike down a state law solely on commerce clause grounds

was the State Freight Tax Case. 853 The question before the Court

was the validity of a nondiscriminatory 854 statute that required

every company transporting freight within the State, with certain

exceptions, to pay a tax at specified rates on each ton of freight carried by it. Opining that a tax upon freight, or any other article of

commerce, transported from State to State is a regulation of commerce among the States and, further, that the transportation of

merchandise or passengers through a State or from State to State

was a subject that required uniform regulation, the Court held the

tax in issue to be repugnant to the commerce clause.
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855 ‘‘Where the subject matter requires a uniform system as between the States,

the power controlling it is vested exclusively in Congress, and cannot be encroached

upon by the State.’’ Leisy v. Hardin, 135 U.S. 100, 108–109 (1890). The commerce

clause ‘‘remains in the Constitution as a grant of power to Congress . . . and as a

diminution pro tanto of absolute state sovereignty over the same subject matter.’’

Carter v. Virginia, 321 U.S. 131, 137 (1944). The commerce clause, the Court has

celebrated, ‘‘does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written

word, this Court has advanced the solidarity and prosperity of this Nation by the

meaning it has given these great silences of the Constitution.’’ H. P. Hood & Sons,

Inc. v. Du Mond, 336 U.S. 525, 534–535 (1949). More recently, the Court has taken

to stating that ‘‘[t]he Commerce Clause ‘has long been recognized as a self-executing

limitation on the power of the States to enact laws imposing substantial burdens

on such commerce.’’’ Dennis v. Higgins, 498 U.S. 439, 447 (1991) (quoting SouthCentral Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984) (emphasis supplied). 856 91 U.S. 275 (1875). 857 Id., 282. In Steamship Co. v. Portwardens, 6 Wall. (73 U.S.) 31, 33 (1867),

the Court stated that congressional silence with regard to matters of ‘‘local’’ concern,

imported willingness that the States regulate. Cf. Graves v. New York ex rel.

O’Keefe, 306 U.S. 466, 479 n. 1 (1939)Justice Stone). 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). 858Southern Pacific Co. v. Arizona, 325 U.S. 761, 768 (1945).

Whether exclusive or partially exclusive, however, the commerce clause as a restraint upon state exercises of power, absent

congressional action, received no sustained justification or explanation; the clause, of course, empowers Congress to regulate commerce among the States, not the courts. Often, as in Cooley, and

later cases, the Court stated or implied that the rule was imposed

by the commerce clause. 855 In Welton v. Missouri, 856 the Court attempted to suggest a somewhat different justification. Challenged

was a state statute that required a ‘‘peddler’s’’ license for merchants selling goods that came from other states but that required

no license if the goods were produced in the State. Declaring that

uniformity of commercial regulation is necessary to protect articles

of commerce from hostile legislation and thus 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.’’ 857

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.’’ 858 Thus, ‘‘[f]or a hundred years it has been

accepted constitutional doctrine . . . that . . . where Congress has
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859 Id., 769. See also California v. Zook, 336 U.S. 725, 728 (1949). 860 91 U.S. 275, 277, 278, 279, 280, 281, 282 (1876). 861 Id., 280–281; Brown v. Maryland, 12 Wheat. (25 U.S.) 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). 862 E.g., Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 440 (1939);

McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330–331 (1944); Freeman v. Hewitt, 329

U.S. 249, 252, 256 (1946); H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 538, 539

(1949); Dennis v. Higgins, 498 U.S. 439, 447–450 (1991). ‘‘[W]e have steadfastly adhered to the central tenet that the Commerce Clause ‘by its own force created an

area of trade free from interference by the States.’’’ American Trucking Assns., Inc.

v. Scheiner, 483 U.S. 266, 280 (1987) (quoting Boston Stock Exchange v. State Tax

Comm., 429 U.S. 318, 328 (1977)). 863 E.g., Fort Gratiot Sanitary Landfill, Inc. v. Michigan Natural Resources

Dept., 112 S.Ct. 2019, 2023–2024 (1992); Quill Corp. v. North Dakota ex rel.

Heitkamp, 112 S.Ct. 1904, 1911 (1992); Wyoming v. Oklahoma, 112 S.Ct. 789, 800–

801 (1992). Indeed, the Court, in Dennis v. Higgins, 498 U.S. 439, 447–450 (1991),

broadened its construction of the clause, holding that it confers a ‘‘right’’ upon individuals and companies to engage in interstate trade. With respect to the exercise of

the power, the Court has recognized Congress’ greater expertise to act and noted

its hesitancy to impose uniformity on state taxation. Moorman Mfg. Co. v. Bair, 437

U.S. 267, 280 (1978). Cf. Quill Corp. supra, 1916. 864 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., 795 (Justice Douglas dissenting). Justices Douglas and Frankfurter subsequently wrote and joined opinions applying the dormant commerce

clause. In Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 166 (1954),

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.’’ 859

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, 860 the statute

under review, as observed several times by the Court, was clearly

discriminatory as between instate and interstate commerce, but

that point was not sharply drawn as the constitutional fault of the

law. That the commerce clause had been motivated by the Framers’

apprehensions about state protectionism has been frequently

noted. 861 A relatively recent theme is that the Framers desired to

create a national area of free trade, so that unreasonable burdens

on interstate commerce violate the clause in and of themselves. 862

Nonetheless, the power of the Court is established and is freely

exercised. No reservations can be discerned in the opinions for the

Court. 863 Individual Justices, to be sure, have urged renunciation

of the power and remission to Congress for relief sought by litigants. 864 That has not been the course followed.
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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 Industries, Inc. v. Washington State Dept. 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, 895 (1988) (concurring

in judgment); American Trucking Assn., inc. v. Smith, 496 U.S. 167, 200 (1990) (concurring). 865 Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). 866 Reeves, Inc. v. Stake, 447 U.S. 429 (1980). 867 Id., 436–437. 868See 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). 869 10 Stat. 112, § 6.

The State Proprietary Activity Exception.—In a case of

first impression, the Court held unaffected by the commerce

clause—‘‘the kind of action with which the Commerce Clause is not

concerned’’—a Maryland bounty scheme by which the State paid

scrap processors for each ‘‘hulk’’ automobile destroyed. As first enacted, the bounty plan did not distinguish between in-state and

out-of-state processors, but it was subsequently amended to operate

in such a manner that out-of-state processors were substantially

disadvantaged. The Court held that where a State enters into the

market itself as a purchaser, in effect, of a potential article of interstate commerce, it does not, in creating a burden upon that commerce by restricting its trade to its own citizens or businesses within the State, violate the commerce clause. 865

Affirming and extending somewhat this precedent, the Court

held that a State operating a cement plant could in times of shortage (as well presumably at any time) confine the sale of cement by

the state plant to residents of the State. 866 ‘‘The Commerce Clause

responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. . . . There is no

indication of a constitutional plan to limit the ability of the States

themselves to operate freely in the free market.’’ 867 It is yet unclear how far this concept of the State as market participant rather

than market regulator will be extended. 868

Congressional Authorization of Impermissible State Action.—The Supreme Court has never forgotten the lesson that was

administered to it by the Act of Congress of August 31, 1852, 869

which pronounced the Wheeling Bridge ‘‘a lawful structure,’’ thereby setting aside the Court’s determination to the contrary earlier
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870Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. (54 U.S.) 518

(1856), statute sustained in Pennsylvania v. Wheeling & Belmont Bridge Co., 18

How. (59 U.S.) 421 (1856). The latter decision seemed facially contrary to a dictum

of Justice Curtis in Cooley v. Board of Wardens of Port of Philadelphia, 12 How.

(53 U.S.) 299, 318 (1851), and cf. Tyler Pipe Industries, 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. 871Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883). 872 In Brown v. Maryland, 12 Wheat. (25 U.S.) 419, 449 (1827), in which the

‘‘original package’’ doctrine originated in the context of state taxing powers exercised

on imports from a foreign country, Marshall in dictum indicated the same rule

would apply to imports from sister States. The Court refused to follow the dictum

in Woodruff v. Parham, 8 Wall. (75 U.S.) 123 (1869). 873Mugler v. Kansas, 123 U.S. 623 (1887). 874Kidd v. Pearson, 128 U.S. 1 (1888). 875 125 U.S. 465 (1888). 876Leisy v. Hardin, 135 U.S. 100 (1890). 877 26 Stat. 313 (1890), sustained in, In re Rahrer, 140 U.S. 545 (1891). 878 Rhodes v. Iowa, 170 U.S. 412 (1898).

the same year. 870 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.’’ 871

Similarly, when in the late eighties and the early nineties statewide prohibition laws began making their appearance, Congress

again approved state laws the Court had found to violate the dormant commerce clause.

The Court seized upon a previously rejected dictum of Chief

Justice Marshall 872 and began applying it as a brake on the operation of such laws with respect to interstate commerce in intoxicants, which the Court denominated ‘‘legitimate articles of commerce.’’ While holding that a State was entitled to prohibit the

manufacture and sale within its limits of intoxicants, 873 even for

an outside market, manufacture being no part of commerce, 874 it

contemporaneously laid down the rule, in Bowman v. Chicago &

Northwestern Railway Co., 875 that, so long as Congress remained

silent in the matter, a State lacked the power, even as part and

parcel of a program of statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister

State, and this holding was soon followed by another to the effect

that, so long as Congress remained silent, a State had no power to

prevent the sale in the original package of liquors introduced from

another State. 876 The effect of the latter decision was soon overcome by an act of Congress, the so-called Wilson Act, repealing its

alleged silence, 877 but the Bowman decision still stood, the act in

question being interpreted by the Court not to subject liquors from

sister States to local authority until their arrival in the hands of

the person to whom consigned. 878 Not until 1913 was the effect of
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879 37 Stat. 699 (1913), sustained in Clark-Distilling Co. v. Western Md. Ry. Co.,

242 U.S. 311 (1917). See also Dept. of Revenue v. Beam Distillers, 377 U.S. 341

(1964). 880 National Prohibition, under the Eighteenth Amendment, first cast these conflicts into the shadows, and § 2 of the Twenty-first Amendment significantly altered

the terms of the dispute. But that section is no authorization for the States to engage in mere economic protectionism separate from concerns about the effect of the

traffic in liquor. Bacchus Imports Ltd. v. Dias, 468 U.S. 263 (1984); Brown-Forman

Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986); Healy v. Beer

Institute, 491 U.S. 324 (1989). 881 322 U.S. 533 (1944). 882 59 Stat. 33, 15 U.S.C. §§ 1011–15. 883 328 U.S. 408 (1946).

the decision in the Bowman case fully nullified by the WebbKenyon Act, 879 which placed intoxicants entering a State from another State under the control of the former for all purposes whatsoever. 880

Less than a year after the ruling in United States v. SouthEastern Underwriters Assn., 881 that insurance transactions across

state lines constituted interstate commerce, thereby logically establishing their immunity from discriminatory state taxation, Congress passed the McCarran Act 882 authorizing state regulation and

taxation of the insurance business. In Prudential Ins. Co. v. Benjamin, 883 a statute of South Carolina that imposed on foreign insurance companies, as a condition of their doing business in the

State, an annual tax of three percent of premiums from business

done in South Carolina, while imposing no similar tax on local corporations, was sustained. ‘‘Obviously,’’ said Justice Rutledge for the

Court, ‘‘Congress’ purpose was broadly to give support to the existing and future State systems for regulating and taxing the business of insurance. This was done in two ways:

‘‘One was by removing obstructions which might be thought to

flow from its own power, whether dormant or exercised, except as

otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that

continued State regulation and taxation of this business is in the

public interest and that the business and all who engage in it ‘shall

be subject to’ the laws of the several States in these respects. . . .

The power of Congress over commerce exercised entirely without

reference to coordinated action of the States is not restricted, except as the Constitution expressly provides, by any limitation

which forbids it to discriminate against interstate commerce and in

favor of local trade. Its plenary scope enables Congress not only to

promote but also to prohibit interstate commerce, as it has done

frequently and for a great variety of reasons. . . . This broad authority Congress may exercise alone, subject to those limitations, or
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884 Id., 429–430, 434–435. 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., 878. Controversial when rendered, Ward

may be a sport in the law. See Northeast Bancorp v. Board of Governors of the Federal Reserve System, 472 U.S. 159, 176–178 (1985). 885 Northeast Bancorp v. Board of Governors of the Federal Reserve System, 472

U.S. 159, 174 (1985) (interpreting a provision of the Bank Holding Company Act,

12 U.S.C. § 1842(d), permitting regional interstate bank acquisitions expressly approved by the State in which the acquired bank is located, as authorizing state laws

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). 886South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 90 (1984). 887 Id., 92. Earlier cases had required express statutory sanction of state burdens on commerce but under circumstances arguably less suggestive of congressional approval. E.g., Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 958–960

(1982) (congressional deference to state water law in 37 statutes and numerous

interstate compacts did not indicate congressional sanction for invalid state laws

imposing a burden on commerce); New England Power Co. v. New Hampshire, 455

U.S. 331, 341 (1982) (disclaimer in Federal Power Act of intent to deprive a State

of ‘‘lawful authority’’ over interstate transmissions held not to evince a congressional

intent ‘‘to alter the limits of state power otherwise imposed by the Commerce

Clause’’). But see White v. Massachusetts Council of Construction Employers, 460

U.S. 204 (1983) (Congress held to have sanctioned municipality’s favoritism of city

residents through funding statute under which construction funds were received).

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.’’ 884

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.’’ 885 But the

Court requires congressional intent to permit otherwise impermissible state actions to ‘‘be unmistakably clear.’’ 886 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. 887 And Congress must be plain as well

when the issue is not whether it has exempted a state action from
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888Maine 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). 889 Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457–

458 (1959) (in part 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 pf preoccupation with their special facts.’’ Freeman v. Hewit, 329 U.S. 249, 251–252 (1946). The

comments in all three cases dealt with taxation, but they could just as well have

included regulation. 890 Infra, pp. 240–242.

the commerce clause but whether it has taken the less direct form

of reduction in the level of scrutiny. 888

State Taxation and Regulation: The Old Law

Although in previous editions of this volume considerable attention was paid to the development and circuitous paths of the

law of the negative commerce clause, the value of this exegesis was

doubtlessly quite limited. The Court itself has admitted that its

‘‘some three hundred full-dress opinions’’ as of 1959 have not resulted in ‘‘consistent or reconcilable’’ doctrine but rather in something more resembling a ‘‘quagmire.’’ 889 Although many of the

principles still applicable in constitutional law may be found in the

older cases, in fact the Court has worked a revolution in constitutional law 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. 890 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 particu-
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Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

891 In addition to the sources previously cited, see J. HELLERSTEIN & W.

HELLERSTEIN, STATE AND LOCAL TAXATION—CASES AND MATERIALS (5th ed. 1988),

ch. 6, 241 passim. For a succinct description of the history, see Hellerstein, State

Taxation of Interstate Business: Perspectives on Two Centuries of Constitutional Adjudication, 41 Tax Law. 37 (1987). 892 Reading Railroad v. Pennsylvania, 15 Wall. (82 U.S.) 232 (1873). 893 Id., 275. 894 Id., 275–276, 279. 895 Id., 279–280. 896 Id., 280. 897 Id., 281–282. 898 Reading Railway Co. v. Pennsylvania, 15 Wall. (82 U.S.) 284 (1872).

larly the case with respect to the infringement on interstate commerce by the state taxing power. 891

Taxation.—The leading case dealing with the relation of the

States’ taxing power to interstate commerce, the case in which the

Court first struck down a state tax as violative of the commerce

clause, was the State Freight Tax Case. 892 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. 893 A tax upon freight transported from one

State to another effects a regulation of interstate commerce. 894

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 control of Congress. 895 Transportation of passengers or merchandise through a State, or from one State to another, is of this nature. 896 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. 897

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, 898 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
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899 Id., 293. 900 Id., 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). 901See 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). 902 Robbins v. Shelby County Taxing District, 120 U.S. 489, 497 (1887); Leloup

v. Port of Mobile, 127 U.S. 640, 648 (1888). 903The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 400–401

(1913). 904The Delaware Railroad Tax, 18 Wall. (85 U.S.) 206, 232 (1873). See Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U.S. 439 (1894); Postal

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.’’ 899

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.

. . .’’ 900

Insofar as there is a distinction between these two cases, the

Court drew it in part on the basis of Cooley, that some subjects embraced within the meaning of commerce demand uniform, national

regulation, while other similar subjects permit of diversity of treatment, until Congress acts, and in part on the basis of a concept of

a ‘‘direct’’ tax on interstate commerce, which was impermissible,

and an ‘‘indirect’’ tax, which was permissible until Congress

acted. 901 Confusingly, the two concepts were sometimes conflated,

sometimes treated separately. In any event, the Court itself was

clear that interstate commerce could not be taxed at all, even if the

tax was a nondiscriminatory levy applied alike to local commerce. 902 ‘‘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.’’ 903 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. 904 A good rule
ART. I—LEGISLATIVE DEPARTMENT 223

Sec. 8—Powers of Congress Cl. 3—Regulate Commerce

Telegraph Cable Co. v. Adams, 155 U.S. 688 (1895). See cases cited in J.

HELLERSTEIN & W. HELLERSTEIN, supra, n. 891, 215–219. 905 E.g., Welton v. Missouri, 91 U.S. 275 (1875); Robbins v. Shelby County Taxing District, 120 U.S. 489 (1887); Darnell & Son Co. v. City of Memphis, 208 U.S.

113 (1908); Bethlehem Motors Corp. v. Flynt, 256 U.S. 421 (1921). 906Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938); McGoldrick

v. Berwind-White Coal Mining Co., 309 U.S. 33 (1940); International Harvester Co.

v. Dept. of Treasury, 322 U.S. 340 (1944); International Harvester Co. v. Evatt, 329

U.S. 416 (1947). 907 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,

Inc. v. Mealey, 334 U.S. 653 (1948). 908Freeman v. Hewit, 329 U.S. 249 (1946); Spector Motor Service, Inc. v. O’Connor, 340 U.S. 602 (1951). 909Thus, 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 a franchise

tax on intangible property on the privilege of doing business in a corporate form,

which was permissible. Railway Express Agency v. Virginia, 358 U.S. 434 (1959);

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). 905

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. 906 It became much more important to

the validity of a tax that it be apportioned to an interstate company’s activities within the taxing State, so as to reduce the risk of

multiple taxation. 907 But, just as the Court had achieved constancy

in the area of regulation, it reverted to the older doctrines in the

taxation area and reiterated that interstate commerce may not be

taxed at all, even by a properly apportioned levy, and reasserted

the direct-indirect distinction. 908 The stage was set, following a series of cases in which through formalistic reasoning the States

were permitted to evade the Court’s precedents, 909 for the formulation of a more realistic doctrine.
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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. Dept. of Revenue, 419 U.S. 560 (1975). 910Sedler, The Negative Commerce Clause as a Restriction on State Regulation

and Taxation: An Analysis in Terms of Constitutional Structure, 31 Wayne L. Rev.

885, 924–925 (1985). In addition to the sources already cited, see the Court’s summaries in The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 398–412

(1913), and Southern Pacific Co. v. Arizona, 325 U.S. 761, 766–770 (1945). In the

latter case, Chief Justice Stone was reconceptualizing the standards under the

clause, but the summary represents a faithful recitation of the law. 911See DiSanto v. Pennsylvania, 273 U.S. 34, 44 (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). 912 Bank of Augusta v. Earle, 13 Pet. (38 U.S.) 519 (1839); Hanover Fire Ins.

Co. v. Harding, 272 U.S. 494 (1926); Union Brokerage Co. v. Jensen, 322 U.S. 202

(1944). 913 Crutcher v. Kentucky, 141 U.S. 47 (1891); International Textbook Co. v.

Pigg, 217 U.S. 91 (1910). 914Dahnke-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).

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. 910 But the distinction

between ‘‘direct’’ and ‘‘indirect’’ burdens was often perceptible only

to the Court. 911

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. 912 But no registration was

permitted of an out-of-state corporation, the business of which in

the host State was purely interstate in character. 913 Neither did

the Court permit a State to exclude from the its courts a corporation engaging solely in interstate commerce because of a failure to

register and to qualify to do business in that State. 914

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
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915Wabash, S. L. & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886). The power of

the States generally to set rates had been approved in Chicago, B. & Q. R. Co. v.

Iowa, 94 U.S. 155 (1877), and Peik v. Chicago & N. W. R. Co., 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. v. Chicago, B. & Q. R. Co., 257 U.S. 563 (1922). 916Generally, the Court drew the line at regulations that provided for adequate

service, not any and all service. Thus, one class of cases dealt with requirements

that trains stop at designated cities and towns. The regulations were upheld in such

cases as Gladson v. Minnesota, 166 U.S. 142 (1897), and Lake Shore & Mich. South.

Ry. v. Ohio, 173 U.S. 285 (1899), and invalidated in Illinois Central R. R. v. Illinois,

142 (1896). See Chicago, B. & Q. Ry. v. Wisconsin R. R. Comm., 237 U.S. 220, 226

(1915); St. Louis & S. F. Ry. v. Public Service Comm., 254 U.S. 535, 536–537 (1921).

The cases were extremely fact particularistic. 917 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. Co. v. New York, 165 U.S. 628 (1897) (fobidding heating of

passenger cars by stoves); Chicago, R. I. & Pac. Ry. Co. v. Arkansas, 219 U.S. 453

(1911) (requiring three brakemen on freight trains of more than 25 cars). 918 E.g., Terminal Assn v. Trainmen, 318 U.S. 1 (1943) (requiring railroad to

provide caboose cars for its employees); Hennington v. Georgia, 163 U.S. 299 (1896)

(forbidding freight trains to run on Sundays). But see Seaboard Air Line Ry. v.

Blackwell, 244 U.S. 310 (1917) (voiding as too onerous on interstate transportation

law requiring trains to come to almost a complete stop at all grade crossings, when

there were 124 highway crossings at grade in 123 miles, doubling the running time). 919Four cases over a lengthy period sustained the laws. Chicago, R. I. & P. R.

Co. v. Arkansas, 219 U.S. 453 (1911); St. Louis, Iron Mt. & S. R. Co. v. Arkansas,

240 U.S. 518 (1916); Missouri Pacific Co. v. Norwood, 283 U.S. 249 (1931); Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R. I. & P. R. Co., 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. 920 Hendrick v. Maryland, 235 U.S. 610 (1915); Kane v. New Jersey, 242 U.S.

160 (1916).

the regulation must be uniform and thus could not be left to the

States. 915 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. 916 A marked tolerance for a class of regulations that

arguably furthered public safety was long exhibited by the

Court, 917 even in instances in which the safety connection was tenuous. 918 Of particular controversy were ‘‘full-crew’’ laws, represented as safety measures, that were attacked by the companies

as ‘‘feather-bedding’’ rules. 919

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. 920 Indeed, States were permitted to regulate many of the local activities of interstate firms and thus the
226 ART. I—LEGISLATIVE DEPARTMENT

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921 E.g., Bradley v. Public Utility Comm., 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., 306 U.S. 268 (1939) (reasonable regulations of traffic). But compare

Michigan Comm. v. Duke, 266 U.S. 570 (1925) (State may not impose common-carrier responsibilities on business operating between States that did not assume

them); Buck v. Kuykendall, 267 U.S. 307 (1925) (denial of certificate of convenience

under circumstances was a ban on competition). 922 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 Dept. 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). 923 E.g., Transportation Co. v. City of Chicago, 99 U.S. 635 (1879); Williamette

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). 924 E.g., Western Union Tel Co. v. Foster, 247 U.S. 105 (1918); Lemke v. Framers Grain Co., 258 U.S. 50 (1922); State Corp. Comm. v. Wichita Gas Co., 290 U.S.

561 (1934). 925Milk Control Board v. Eisenberg Co., 306 U.S. 346 (1939) (milk); Parker v.

Brown, 317 U.S. 341 (1943) (raisins). 926 91 U.S. 275 (1875). 927 136 U.S. 313 (1890).

interstate operations, in pursuit of these interests. 921 Here, too,

safety concerns became overriding objects of deference, even in

doubtful cases. 922 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. 923

As a general rule, during this time, although the Court did not

permit States to regulate a purely interstate activity or prescribe

prices for purely interstate transactions, 924 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. 925

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, 926 the tax case, was Minnesota v. Barber, 927 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.
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928 E.g., Brimmer v. Rebman, 138 U.S. 78 (1891) (law requiring postslaughter

inspection in each county of meat transported over 100 miles from the place of

slaughter); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) (city ordinance

preventing selling of milk as pasteurized unless it had been processed and bottled

at an approved plant within a radius of five miles from the central square of Madison). As the latter case demonstrates, it is constitutionally irrelevant that other

Wisconsin producers were also disadvantaged by the law. For a modern application

of the principle of these cases, see Fort Gratiot Sanitary Landfill v. Michigan Natural Resources Dept., 112 S.Ct. 2019 (1992) (forbidding landfills from accepting outof-county wastes). 929 294 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). 930 336 U.S. 525 (1949). 931 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). 932Formulation 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). 933 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).

Thus, meat slaughtered in other States was excluded from the Minnesota market. The principle of the case has a long pedigree of application. 928 State protectionist regulation on behalf of local milk

producers has occasioned judicial censure. Thus, in Baldwin v. G.

A. F. Seelig, Inc., 929 the Court had before it a complex state pricefixing scheme for milk, in which the State, in order to keep the

price of milk artificially high within the State, required milk dealers buying out-of-state to pay producers, wherever they were, what

the dealers had to pay within the State, and, thus, in-state producers were protected. And in H. P. Hood & Sons v. Du Mond, 930 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. 931

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, 932 but in the area of taxation the passage was choppy and

often witnessed retreats and advances. 933 In any event, both taxation and regulation now are evaluated under a judicial balancing
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934 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). 935 358 U.S. 450 (1959). 936 Id., 461–462. 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, 112 S.Ct. 1904, 1912 n. 5 (1992) (citing cases). 937 Hellerstein, State Taxation of Interstate Business: Perspectives on Two Centuries of Constitutional Adjudication, 41 Tax Law. 37, 54 (1987). 938Spector 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.

formula comparing the burden on interstate commerce with the importance of the state interest, save for discriminatory state action

that cannot be justified at all.

Taxation.—During the 1940s and 1950s, there was engaged

within the Court a contest between the view that interstate commerce could not be taxed at all, at least ‘‘directly,’’ and the view

that the negative commerce clause protected against the risk of

double taxation. 934 In Northwestern States Portland Cement Co. v.

Minnesota, 935 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. 936 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 the context of property taxation, the Court explicitly recognized that an exclusively interstate

business could be subjected to the states’ taxing powers.’’ 937 Thus,

in Northwestern States, foreign corporations, which maintained a

sales office and employed sales staff in the taxing State for solicitation of orders for their merchandise that, upon acceptance of the

orders at their home office in another jurisdiction, were shipped to

customers in the taxing State, were held liable to pay the latter’s

income tax on that portion of the net income of their interstate

business as was attributable to such solicitation.

Yet, the following years saw inconsistent rulings that turned

almost completely upon the use of or failure to use ‘‘magic words’’

by legislative drafters. That is, it was constitutional for the States

to tax a corporation’s net income, properly apportioned to the taxing State, as in Northwestern States, but no State could levy a tax

on a foreign corporation for the privilege of doing business in the

State, both taxes alike in all respects. 938 In Complete Auto Transit,
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939 430 U.S. 274 (1977). 940 Id., 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. Comr. of Taxes, 445

U.S. 425, 443 (1980)). 941 Id., 279. The rationale of these four parts of the test is set out in Quill Corp.

v. North Dakota ex rel. Heitkamp, 112 S.Ct. 1904, 1913 (1992). 942 It had been thought that the tests of nexus under the commerce clause and

the due process clause were identical, but, controversially, in Quill Corp. v. North

Dakota ex rel. Heitkamp, 112 S.Ct. 1904, 1909–1911 (1992), but compare id., 1916

(Justice White concurring in part and dissenting in part), the Court, stating that

the two ‘‘are closely related,’’(citing National Bellas Hess, Inc. v. Dept. of Revenue

of Illinois, 386 U.S. 753, 756 (1967)), held that the two constitutionally requirements

‘‘differ fundamentally’’ and it found a state tax met the due process test while violating the commerce clause. 943 National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 386 U.S. 753, 756

(1967). The phraseology is quoted from a due process case, Miller Bros. Co. v. Maryland, 347 U.S. 340, 344–345 (1954), but as a statement it probably survives the bifurcation of the tests in Quill. 944Quill Corp. v. North Dakota ex rel. Heitkamp, 112 S.Ct. 1904, 1913 (1992). 945 Ibid.

Inc. v. Brady, 939 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.’’ 940 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 services provided by the State.’’ 941 All

subsequent cases have been decided in this framework.

Nexus.—Nexus is a requirement that flows from both the commerce clause and the due process clause of the Fourteenth Amendment. 942 What is required is ‘‘some definite link, some minimum

connection, between a state and the person, property or transaction

it seeks to tax.’’ 943 In its commerce-clause setting, the nexus requirement serves to effectuate the ‘‘structural concerns about the

effects of state regulation on the national economy.’’ 944 That is,

‘‘the ‘substantial-nexus’ requirement . . . limit[s] the reach of State

taxing authority so as to ensure that State taxation does not unduly burden interstate commerce.’’ 945

Often surfacing in cases having to do with the imposition of an

obligation by a State on an out-of-state vendor to collect use taxes
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946Scripto v. Carson, 362 U.S. 207 (1960); National Geographic Society v. California Bd. of Equalization, 430 U.S. 551 (1977). The agents in the State in Scripto

were independent contractors, rather than employees, but this distinction was irrelevant. See also Tyler Pipe Industries v. Dept. of Revenue, 483 U.S. 232, 249–250

(1987) (reaffirming Scripto on this point). See also D. H. Holmes Co. v. McNamara,

486 U.S. 24 (1988) (imposition of use tax on catalogs, printed outside State at direction of an in-state corporation and shipped to prospective customers within the

State, upheld). 947 National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753

(1967), reaffirmed with respect to the commerce clause in Quill Corp. v. North Dakota ex rel. Heitkamp, 112 S.Ct. 1904 (1992). 948Some in-state contact is necessary in many instances by statutory compulsion. Reacting to Northwestern States, Congress enacted P.L. 86–272, 15 U.S.C.

§ 381, providing that mere solicitation by a company acting outside the State did not

support imposition of a state income tax on a company’s proceeds. See Heublein, Inc.

v. South Carolina Tax Comm., 409 U.S. 275 (1972); Wisconsin Dept. of Revenue v.

William Wrigley, Jr., Co., 112 S.Ct. 2447 (1992). 949Standard Pressed Steel Co. v. Dept. of Revenue, 419 U.S. 560 (1975). See

also General Motors Corp. v. Washington, 377 U.S. 436 (1964). 950Tyler Pipe Industries, Inc. v. Dept. of Revenue, 483 U.S. 232, 249–251

(1987). The Court noted its agreement with the state court holding that ‘‘‘the crucial

factor governing nexus is whether the activities performed in this state on behalf

of the taxpayer are significantly associated with the taxpayer’s ability to establish

and maintain a market in this state for the sales.’’’ Id., 250. 951 United Air lines v. Mahin, 410 U.S. 623 (1973).

on goods sold to purchasers in the taxing State, the test is a ‘‘physical presence’’ standard. The Court has sustained the imposition on

mail order sellers with retail outlets, solicitors, or property within

the taxing State, 946 but it has denied the power to a State when

the only connection is that the company communicates with customers in the State by mail or common carrier as part of a general

interstate business. 947 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. 948 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. 949 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. 950 Also, the Court upheld a State’s application of a use tax to aviation fuel stored temporarily in the State

prior to loading on aircraft for consumption in interstate flights. 951

Given the complexity of modern corporations and their frequent diversification and control of subsidiaries, state treatment of

businesses operating within and without their borders requires an

appropriate definition of the scope of business operations. Thus,
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952 Container Corp. of America v. Franchise Tax Board, 463 U.S. 159, 165–169

(1983); ASARCO Inc. v. Idaho State Tax Comm., 458 U.S. 307, 316–17 (1982). 953 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). 954The recent cases are, Moorman Mfg. Co. v. Bair, 437 U.S. 267 (1978); Mobil

Oil Corp. v. Comr. of Taxes, 445 U.S. 425 (1980); Exxon Corp. v. Wisconsin Dept.

of Revenue, 447 U.S. 207 (1980); ASARCO v. Idaho State Tax Comm., 458 U.S. 307

(1982); F. W. Woolworth Co. v. New Mexico TaxationRevenue Dept., 458 U.S. 354

(1982); Container Corp. of America v. Franchise Tax Board, 463 U.S. 159 (1983);

Tyler Pipe Industries v. Dept. of Revenue, 483 U.S. 232, 251 (1987); Allied-Signal,

Inc. v. Director, Div. of Taxation, 112 S.Ct. 2251 (1992). Cf. American Trucking

Assns., Inc. v. Scheiner, 483 U.S. 266 (1987). 955Moorman Mfg. Co. v. Bair, 437 U.S. 267, 278–280 (1978). 956Goldberg v. Sweet, 488 U.S. 252, 261 (1989).

States may impose a tax in accordance with a ‘‘unitary business’’

apportionment formula on concerns carrying on part of their business within the taxing State based upon the company’s entire proceeds. But there must be a nexus, or minimal connection, between

the interstate activities and the taxing State and a rational relationship between the income attributed to the State and the intrastate values of the enterprise. 952

Apportionment.—This requirement is of long standing, 953 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

is both a commerce clause and a due process requisite, and it necessitates a rational relationship between the income attributed to

the State and the intrastate values of the enterprise. 954 The Court

has declined to impose any particular formula on the States, reasoning that to do so would be to require the Court in engage in ‘‘extensive judicial lawmaking,’’ for which it was ill-suited and for

which Congress had ample power and ability to legislate. 955

Rather, ‘‘we determine whether a tax is fairly apportioned by

examining whether it is internally and externally consistent.’’ 956

‘‘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
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957 Id., 261, 262 (internal citations omitted). 958 Id. The tax law provided a credit for any taxpayer who was taxed by another

State on the same call. Actual multiple taxation could thus be avoided, the risks

of other multiple taxation was small, and it was impracticable to keep track of the

taxable transactions. 959 American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 (1987). 960 Boston Stock Exchange v. State Tax Comm., 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). 961Maryland v. Louisiana, 451 U.S. 725, 753–760 (1981). But see Commonwealth Edison Co. v. Montana, 453 U.S. 609, 617–619 (1981). 962 467 U.S. 638 (1984). 963The Court applied the ‘‘internal consistency’’ test here, too, in order to determine the existence of discrimination. Id., 644–645. 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

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.’’ 957 In the latter case, the Court

upheld as properly apportioned a state tax on the gross charge of

any telephone call originated or terminated in the State and

charged to an in-state service address, regardless of where the telephone call was billed or paid. 958A 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 an identification marker fee, being unapportioned flat taxes imposed for the use of the

State’s roads, were voided, under the internal consistency test, because if every State imposed them the burden on interstate commerce would be great. 959

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.’’’ 960 That is, a tax which 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. 961 In Armco. Inc. v.

Hardesty, 962 the Court voided as discriminatory the imposition on

an out-of-state wholesaler of a state tax that was levied on manufacturing and wholesaling but that relieved manufacturers subject

to the manufacturing tax of liability for paying the wholesaling tax.

Even though the former tax was higher than the latter, the Court

found the imposition discriminated against the interstate wholesaler. 963 A state excise tax on wholesale liquor sales, which ex-
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Pipe Industries v. Washington State Dept. of Revenue, 483 U.S. 232 (1987); American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 (1987); Amerada Hess Corp.

v. Director, New Jersey Taxation Div., 490 U.S. 66 (1989); Kraft General Foods v.

Iowa Dept. of Revenue, 112 S.Ct. 2365 (1992) 964 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). 965 New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988). 966 Commonwealth Edison Co. v. Montana, 453 U.S. 609, 620–629 (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 Assns., Inc. v. Scheiner, 483

U.S. 266, 291 (1987), but this oblique holding was tagged onto an elaborate opinion

holding the taxes invalid under two other Brady tests, and, thus, the precedential

value is questionable. 967 325 U.S. 761 (1945). 968 E.g., DiSanto v. Pennsylvania, 273 U.S. 34, 43 (1927) (dissenting); California

v. Thompson, 313 U.S. 109 (1941); Duckworth v. Arkansas, 314 U.S. 390 (1941);

Parker v. Brown, 317 U.S. 341, 362–368 (1943) (alternative holding). 969Southern Pacific Co. v. Arizona, 325 U.S. 761, 768–769 (1941).

empted sales of specified local products, was held to violate the

commerce clause. 964 A state statute that granted a tax credit for

ethanol fuel if the ethanol was produced in the State, or if produced in another State that granted a similar credit to the State’s

ethanol fuel, was found discriminatory in violation of the clause. 965

Benefit Relationship.—Although, in all the modern cases, the

Court has stated that a necessary factor to sustain state taxes having an interstate impact is that the levy be fairly related to benefits provided by the taxing State, it has declined to be drawn into

any consideration of the amount of the tax or the value of the benefits bestowed. The test rather is whether, as a matter of the first

factor, the business has the requisite nexus with the State; if it

does, the tax meets the fourth factor simply because the business

has enjoyed the opportunities and protections which the State has

afforded it. 966

Regulation.—Adoption of the modern standard of commerceclause review of state regulation of or having an impact on interstate commerce was achieved in Southern Pacific Co. v. Arizona, 967

although it was presaged in a series of opinions, mostly dissents,

by Chief Justice Stone. 968 The Southern Pacific case tested the validity of a state train-length law, justified as a safety measure. Revising a hundred years of doctrine, the Chief Justice wrote that

whether a state or local regulation was valid depended upon a ‘‘reconciliation of the conflicting claims of state and national power is

to be attained only by some appraisal and accommodation of the

competing demands of the state and national interests involved.’’ 969 Save in those few cases in which Congress has acted,

‘‘this Court, and not the state legislature, is under the commerce
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970 Id., 769. 971 Id., 770–771. 972 397 U.S. 137, 142 (1970). 973Wyoming v. Oklahoma, 112 S.Ct. 789, 800 (1992) (quoting City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)). See also Brown-Forman Distillers

Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986). In Maine v. Taylor,

477 U.S. 131 (1986), the Court did uphold a protectionist law, finding a valid justification aside from economic protectionism. The State barred the importation of

out-of-state baitfish, and the Court credited lower-court findings that legitimate ecological concerns existed about the possible presence of parasites and nonnative species in baitfish shipments.

clause the final arbiter of the competing demands of state and national interests.’’ 970

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.’’ 971

The test today continues to be the Stone articulation, although

the more frequently quoted encapsulation of it is from Pike v. Bruce

Church, Inc. 972 ‘‘Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the

burden imposed on such commerce is clearly excessive in relation

to the putative local benefits. . . . If a legitimate local purpose is

found, then the question becomes one of degree. And the extent of

the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.’’

Obviously, the test requires ‘‘even-handedness.’’ Discrimination

in regulation is another matter altogether. When on its face or in

its effect a regulation betrays ‘‘economic protectionism,’’ an intent

to benefit in-state economic interests at the expense of out-of-state

interests, no balancing is required. ‘‘When a state statute clearly

discriminates against interstate commerce, it will be struck down

. . . unless the discrimination is demonstrably justified by a valid

factor unrelated to economic protectionism, . . . . Indeed, when the

state statute amounts to simple economic protectionism, a ‘virtually

per se rule of invalidity’ has applied.’’ 973 Thus, an Oklahoma law

that required coal-fired electric utilities in the State, producing
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974Wyoming v. Oklahoma, 112 S.Ct. 789 (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). 975 New England Power Co. v. New Hampshire, 455 U.S. 331 (1982). See also

Hughes v. Oklahoma, 441 U.S. 322 (1979) (voiding a ban on transporting minnows

caught in the State for sale outside the State); Sporhase v. Nebraska, 458 U.S. 941

(1982) (invalidating a ban on the withdrawal of ground water from any well in the

State intended for use in another State). These cases largely eviscerated a line of

older cases recognizing a strong state interest in protection of animals and resources. See Geer v. Connecticut, 161 U.S. 519 (1896). New England Power had

rather old antecedents. E.g., West v. Kansas Gas Co., 221 U.S. 229 (1911); Pennsylvania v. West Virginia, 262 U.S. 553 (1923). 976 432 U.S. 333 (1977). Other cases in which the State was attempting to promote and enhance local products and businesses include Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970) (State required producer of high-quality cantaloupes to pack

them in the State, rather than in an adjacent State at considerably less expense,

in order that the produce be identified with the producing State); Foster-Fountain

Packing Co. v. Haydel, 278 U.S. 1 (1928) (State banned export of shrimp from State

until hulls and heads were removed and processed, in order to favor canning and

manufacture within the State). 977That 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)

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. 974 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. 975

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., 976 the Court confronted a state requirement that closed containers of apples offered for sale or

shipped into North Carolina carry no grade other than the applicable U. S. grade. Washington State mandated that all apples produced in and shipped in interstate commerce pass a much more

rigorous inspection than that mandated by the United States. The

inability to display the recognized state grade in North Carolina

impeded marketing of Washington apples. The Court obviously suspected the impact was intended, but, rather than strike the state

requirement down as purposeful, it held that the regulation had

the practical effect of discriminating, and, inasmuch as no defense

based on possible consumer protection could be presented, the state

law was invalidated. 977 State actions to promote local products and
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978 E.g., H. P. Hood & Sons 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). 979 Healy v. Beer Institute, Inc., 491 U.S. 324 (1989); Brown-Forman Distillers

Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986). And see Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) (a tax case). 980 City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), reaffirmed and applied in Chemical Waste Management, Inc. v. Hunt, 112 S.Ct. 2009 (1992), and Fort

Gratiot Sanitary Landfill v. Michigan Natural Resources Dept., 112 S.Ct. 2019

(1992). 981 Edwards v. California, 314 U.S. 160 (1941) (California effort to bar ‘‘Okies,’’

persons fleeing the Great Plains dust bowl in the Depression). Cf. the notable case

of Crandall v. Nevada, 6 Wall. (73 U.S.) 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. 982 449 U.S. 456, 470–474 (1981). 983 437 U.S. 117 (1978).

producers, of everything from milk 978 to alcohol, 979 may not be

achieved through protectionism.

Even garbage transportation and disposition is covered by the

negative commerce clause. A state law that banned the importation

of most solid or liquid wastes that originated outside the State was

struck down, because the State could not justify it as a health or

safety measure, in the form of a quarantine, inasmuch as it did not

limit in-state disposal at its landfills; the State was simply attempting to conserve landfill space and lower costs to its residents

by keeping out trash from other States. 980 States may not interdict

the movement of persons into the State, whatever the motive to

protect themselves from economic or similar difficulties. 981

Drawing the line between discriminatory regulations that are

almost per se invalid and regulations that necessitate balancing is

not an easy task. Not every claim of protectionism is sustained.

Thus, in Minnesota v. Clover Leaf Creamery Co., 982 there was attacked a state law banning the retail sale of milk products in plastic, nonreturnable containers but permitting sales in other nonreturnable, nonrefillable containers, such as paperboard cartons.

The Court found no discrimination against interstate commerce,

because both in-state and out-of-state interests could not use plastic containers, and it refused to credit a lower, state-court finding

that the measure was intended to benefit the local pulpwood industry. In Exxon Corp. v. Governor of Maryland, 983 the Court upheld

a statute that prohibited producers or refiners of petroleum products from operating retail service stations in Maryland. No discrimination was found, first, because there were no local producers

or refiners within Maryland and therefore since the State’s entire

gasoline supply flowed in interstate commerce there was no favoritism, and, second, although the bar on operating fell entirely on
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984 325 U.S. 761 (1945). Interestingly, Justice Stone had written the opinion for

the Court in South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177

(1938), in which, in a similar case involving regulation of interstate transportation

and proffered safety reasons, he had eschewed balancing and deferred overwhelmingly to the state legislature. Barnwell Bros. involved a state law that prohibited

use on state highways of trucks that were over 90 inches wide or that had a gross

weight over 20,000 pounds, with from 85% to 90% of the Nation’s trucks exceeding

these limits. This deference and refusal to evaluate evidence resurfaced in a case

involving an attack on railroad ‘‘full-crew’’ laws. Brotherhood of Locomotive Firemen

& Enginemen v. Chicago, R.I. & P. Railroad Co., 393 U.S. 129 (1968). 985The concern about the impact of one State’s regulation upon the laws of

other States is in part a reflection of the Cooley national uniformity interest and

partly a hesitation about the autonomy of other States, E.g., CTS Corp. v. Dynamics

Corp. of America, 481 U.S. 69, 88–89 (1987); Brown-Forman Distillers Corp. v. New

York State Liquor Auth., 476 U.S. 573, 583–584 (1986). 986Southern Pacific Co. v. Arizona, 325 U.S. 761, 771–775 (1945).

out-of-state concerns, there were out-of-state concerns that did not

produce or refine gasoline and they were able to continue operating

in the State, so that there was some distinction between all in-state

operators and some out-of-state operators as against some other

out-of-state operators.

Still a model example of balancing is Chief Justice Stone’s

opinion in Southern Pacific Co. v. Arizona. 984 At issue was the validity of Arizona’s law barring the operation within the State of

trains of more than 14 passenger cars, no other State had a figure

this low, or 70 freight cars, only one other State had a cap this low.

First, the Court observed that the law substantially burdened

interstate commerce. Enforcement of the law in Arizona, while

train lengths went unregulated or were regulated by varying standards in other States, meant that interstate trains of a length lawful

in other States had to be broken up before entering the State; inasmuch as it was not practicable to break up trains at the border,

that act had to be accomplished at yards quite removed, with the

result that the Arizona limitation controlled train lengths as far

east as El Paso, Texas, and as far west as Los Angeles. Nearly 95%

of the rail traffic in Arizona was interstate. The other alternative

was to operate in other States with the lowest cap, Arizona’s, with

the result that that State’s law controlled the railroads’ operations

over a wide area. 985 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. 986

Conversely, the Court found that as a safety measure the state

cap had ‘‘at most slight and dubious advantage, if any, over unregulated train lengths.’’ That is, while there were safety problems
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987 Id., 775–779, 781–784. 988 359 U.S. 520 (1959). 989 Raymond Motor Transp. v. Rice, 434 U.S. 429 (1978); Kassel v. Consolidated

Freightways Corp., 450 U.S. 662 (1981). 990Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 67–671 (1981)

(quoting Raymond Motor Transp. v. Rice, 434 U.S. 429, 441, 443 (1978)). Both cases

invalidated state prohibitions of the use of 65-foot single-trailer trucks on state

highways.

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 that the cap lessened rather than increased the danger of accidents. 987

Conflicting state regulations appeared in Bibb v. Navajo

Freight Lines, Inc. 988 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. 989 Difficulty attends

any evaluation of the possible developing approach, inasmuch as

the Court has spoken with several voices. A close reading, however,

indicates that while the Court is most reluctant to invalidate regulations that touch upon safety and that if safety justifications are

not illusory it will not second-guess legislative judgment, nonetheless, the Court will not accept, without more, state assertions of

safety motivations. ‘‘Regulations designed for that salutary purpose

nevertheless may further the purpose so marginally, and interfere

with commerce so substantially, as to be invalid under the Commerce Clause.’’ Rather, the asserted safety purpose must be

weighed against the degree of interference with interstate commerce. ‘‘This ‘weighing’ . . . requires . . . ‘a sensitive consideration

of the weight and nature of the state regulatory concern in light

of the extent of the burden imposed on the course of interstate commerce.’’ 990
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991Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). 992Lewis v. BT Investment Managers, Inc., 447 U.S. 27 (1980). 993 457 U.S. 624 (1982) (plurality opinion). 994 CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987). 995 E.g., Northwest Central Pipeline Corp. v. State Corp. Comm. of Kansas, 489

U.S. 493, 525–526 (1989); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,

472–474 (1981); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 127–128

(1978). But see Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888

(1988).

Balancing has been used in other than transportation-industry

cases. Indeed, the modern restatement of the standard was in such

a case. 991 There, the State required cantaloupes grown in the State

to be packed there, rather than in an adjacent State, so that instate packers’ names would be associated with a superior product.

Promotion of a local industry was legitimate, the Court, said, but

it did not justify the substantial expense the company would have

to incur to comply. State efforts to protect local markets, concerns,

or consumers against outside companies have largely been unsuccessful. Thus, a state law that prohibited ownership of local investment-advisory businesses by out-of-state banks, bank-holding companies, and trust companies was invalidated. 992 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., 993 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. 994

In other areas, while the Court repeats balancing language, it

has not applied it with any appreciable bite, 995 but in most re-
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996 12 Wheat. (25 U.S.) 419 (1827). 997 Article I, § 10, cl. 2. This aspect of the doctrine of the case was considerably

expanded in Low v. Austin, 13 Wall. (80 U.S.) 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). 998See, e.g., Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64 (1963);

Minnesota v. Blasius, 290 U.S. 1 (1933). After the holding in Michelin Tire, the two

clauses are now congruent. The Court has observed that the two clauses are animated by the same policies. Japan Line, Ltd. v. County of Los Angeles, 441 U.S.

434, 449–450 n. 14 (1979). 999 441 U.S. 434 (1979). 1000 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977). A state tax

failed to pass the nondiscrimination standard in Kraft General Foods, Inc. v. Iowa

Dept. of Revenue & Finance, 112 S.Ct. 2365 (1992). Iowa imposed an income tax

spects 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 of Brown v. Maryland, 996 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 997 and

the commerce clause. According to the Chief Justice, an inseparable part of the right to import was the right to sell, and a tax

on the sale of an article is a tax on the article itself. Thus, the taxing power of the States did not extend in any form to imports from

abroad so long as they remain ‘‘the property of the importer, in his

warehouse, in the original form or package’’ in which they were imported, hence, the famous ‘‘original package’’ doctrine. Only when

the importer parts with his importations, mixes them into his general property by breaking up the packages, may the State treat

them as taxable property.

Obviously, to the extent that the import-export clause was construed to impose a complete ban on taxation of imports so long as

they were in their original packages, there was little occasion to develop a commerce-clause analysis that would have reached only discriminatory taxes or taxes upon goods in transit. 998 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, 999 the

Court held that, in addition to satisfying the four requirements

that govern the permissibility of state taxation of interstate commerce, 1000 ‘‘When a State seeks to tax the instrumentalities of for-
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on a unitary business operating throughout the United States and in several foreign

countries. It included in the tax base of corporations the dividends the companies

received from subsidiaries operating in foreign countries, but it allowed exclusions

from the base of dividends received from domestic subsidiaries. A domestic subsidiary doing business in Iowa was taxed but not ones that did no business. Thus, there

was a facial distinction between foreign and domestic commerce. 1001 Id., 446, 448. 1002 Id., 451–457. 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 Bd., 463 U.S. 159,

187–192 (1983).

eign commerce, two additional considerations . . . come into play.

The first is the enhanced risk of multiple taxation. . . . Second, a

state tax on the instrumentalities of foreign commerce may impair

federal uniformity in an area where federal uniformity is essential.’’ 1001 Multiple taxation is to be avoided with respect to interstate commerce by apportionment so that no jurisdiction may tax

all the property of a multistate business, and the rule of apportionment is enforced by the Supreme Court with jurisdiction over all

the States. However, the Court is unable to enforce such a rule

against another country, and the country of the domicile of the

business may impose a tax on full value. Uniformity could be frustrated by disputes over multiple taxation, and trade disputes could

result.

Applying both these concerns, the Court invalidated a state

tax, a nondiscriminatory, ad valorem property tax, on foreignowned instrumentalities, i.e., cargo containers, of international

commerce. The containers were used exclusively in international

commerce and were based in Japan, which did in fact tax them on

full value. Thus, there was the actuality, not only the risk, of multiple taxation. National uniformity was endangered, because, while

California taxed the Japanese containers, Japan did not tax American containers, and disputes resulted. 1002

On the other hand, the Court has upheld a state tax on all

aviation fuel sold within the State as applied to a foreign airline

operating charters to and from the United States. The Court found

the Complete Auto standards met, and it similarly decided that the

two standards specifically raised in foreign commerce cases were

not violated. First, there was no danger of double taxation because

the tax was imposed upon a discrete transaction, the sale of fuel,

that occurred within one jurisdiction only. Second, the one-voice

standard was satisfied, inasmuch as the United States had never

entered into any compact with a foreign nation precluding such

state taxation, having only signed agreements with others, having

no force of law, aspiring to eliminate taxation that constituted im-
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1003Wardair Canada v. Florida Dept. of Revenue, 477 U.S. 1 (1986).

1004 Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159 (1983). The

validity of the formula as applied to domestic corporations with foreign parents or

to foreign corporations with foreign parents or foreign subsidiaries, so that some of

the income earned abroad would be taxed within the taxing State, is a question of

some considerable dispute.

1005 12 Wheat. (25 U.S.) 419, 443–444 (1827).

1006 New York City v. Miln, 11 Pet. (36 U.S.) 102 (1837) (upholding reporting

requirements imposed on ships’ masters), overruled in Henderson v. New York, 92

U.S. 259 (1876); Passenger Cases (Smith v. Turner), 7 How. (48 U.S.) 282 (1849);

Chy Lung v. Freeman, 92 U.S. 275 (1876).

1007 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).

1008 New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908).

1009 Japan Line, Inc. 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)).

1010 Ibid.

pediments to air travel. 1003 Also, a state unitary-tax scheme that

used a worldwide-combined reporting formula was upheld as applied to the taxing of the income of a domestic-based corporate

group with extensive foreign operations. 1004

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. 1005

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. 1006 On the other hand, quarantine legislation to protect the States’ residents from disease and

other hazards was commonly upheld though it regulated international commerce. 1007 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. 1008

Nowadays, state regulation of foreign commerce is likely to be

judged by the extra factors set out in Japan Line. 1009 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. 1010
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1011 9 Wheat. (22 U.S.) 1 (1824). 1012 A modern application of Gibbons v. Ogden is Douglas v. Seacoast Products,

431 U.S. 265 (1977), in which the Court, in reliance on the present version of the

licensing statute utilized by Chief Justice Marshall, struck down state laws curtailing the operations of federally licensed vessels. In the course of the Douglas opinion,

the Court observed that ‘‘[a]lthough it is true that the Court’s view in Gibbons of

the intent of the Second Congress in passing the Enrollment and Licensing Act is

considered incorrect by commentators, its provisions have been repeatedly re-enacted 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., 278–279. 1013Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 211 (1824). See also McCulloch v.

Maryland, 4 Wheat. (17 U.S.) 316, 436 (1819). Although preemption is basically constitutional in nature, deriving its forcefulness from the supremacy clause, it is much

more like statutory decisionmaking, inasmuch as it depends upon an interpretation

of an act of Congress in determining whether a state law is ousted. E.g., Douglas

v. Seacoast Products, Inc., 431 U.S. 265, 271–272 (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., 120. 1014 Cases considered under this heading are overwhelmingly about federal legislation based on the commerce clause, but the principles enunciated are identical

whatever source of power Congress utilizes. Therefore, cases arising under legislation based on other powers are cited and treated interchangeably.

CONCURRENT FEDERAL AND STATE JURISDICTION

The General Issue: Preemption

In Gibbons v. Ogden, 1011 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. 1012 The result, said

the Chief Justice, was required by the supremacy clause, which

proclaimed not only that the Constitution itself but statutes enacted pursuant to it and treaties superseded state laws that ‘‘interfere with, or are contrary to the laws of Congress . . . . In every

such case, the act of Congress, or the treaty, is supreme; and the

law of the State, though enacted in the exercise of powers not controverted, must yield to it.’’ 1013

Since the turn of the century, federal legislation, primarily but

not exclusively under the commerce clause, has penetrated deeper

and deeper into areas once occupied by the regulatory power of the

States. One result is that state laws on subjects about which Congress has legislated have been more and more frequently attacked

as being incompatible with the acts of Congress and invalid under

the supremacy clause. 1014
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1015 Amalgamated Assn. of Street, Electric Ry. & Motor Coach Employees v.

Lockridge, 403 U.S. 274, 285–286 (1971). 1016 Hines v. Davidowitz, 312 U.S. 52, 67 (1941). This case arose under the immigration power of cl. 4. 1017 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

‘‘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.’’ 1015 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.’’ 1016

Before setting out in their various forms the standards and

canons to which the Court formally adheres, one must still recognize the highly subjective nature of their application. As an astute

observer long ago observed, ‘‘the use or non-use of particular tests,

as well as their content, is influenced more by judicial reaction to

the desirability of the state legislation brought into question than

by metaphorical sign-language of ‘occupation of the field.’ And it

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.’’ 1017
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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 (12th ed. 1991), 297). 1018 E.g., Charleston & W. Car. Ry. v. Varnville Furniture Co., 237 U.S. 597,

604 (1915). But see Corn Products Refining Co. v. Eddy, 249 U.S. 427, 438 (1919). 1019 E.g., Hines v. Davidowitz, 312 U.S. 52 (1941); Cloverleaf Butter v. Patterson, 315 U.S. 148 (1942); Rice v. Santa Fe Elevator Co., 331 U.S. 218 (1947); California v. Zook, 336 U.S. 725 (1949). 1020Gade v. National Solid Wastes Mgmt. Assn., 112 S.Ct. 2374, 2381–2382

(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, 606–612 & n. 4

(1991). 1021 Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); FMC Corp. v. Holliday,

498 U.S. 52, 56–57 (1991); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597,

604–605 (1991).

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 not overlapping. 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. 1018 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 were protected from the effects of

federal regulatory actions.

In the 1940s, the Court began to develop modern standards for

determining when preemption occurred, which are still recited and

relied on. 1019 All modern cases recite some variation of the basic

standards. ‘‘[T]he question whether a certain state action is preempted by federal law is one of congressional intent. The purpose

of Congress is the ultimate touchstone. To discern Congress’ intent

we examine the explicit statutory language and the structure and

purpose of the statute.’’ 1020 Congress’ intent to supplant state authority in a particular field may be express in the terms of the statute. 1021 Since preemption cases, when the statute contains no express provision, theoretically turn on statutory construction, generalizations about them can carry one only so far. Each case must

construe a different federal statute with a distinct legislative history. If the statute and the legislative history are silent or unclear,

the Supreme Court has developed over time general criteria which
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1022Gade v. National Solid Wastes Mgmt. Assn., 112 S.Ct. 2374, 2383 (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, 112

S.Ct. 2608, 2617 (1992); id., 2625–2626 (Justice Blackmun concurring and dissenting); id., 2632–2634 (Justice Scalia concurring and dissenting); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 604–605 (1991); English v. General Electric Co.,

496 U.S. 72, 78–80 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984);

Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm., 461

U.S. 190, 203–204 (1983); Fidelity Federal Savings & Loan Assn. 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). 1023Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963); Chicago

& Northwestern Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981).

Where Congress legislates in a field traditionally occupied by the States, courts

should ‘‘start with the assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’’ Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm., 461 U.S. 190, 206 (1983) ((quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947)). 1024Free v. Brand, 369 U.S. 633, 666 (1962). 1025 Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 (1944) (per Justice

Frankfurter).

it purports to utilize in determining the preemptive effect of federal

legislation.

‘‘Absent explicit pre-emptive language, we have recognized at

least two types of implied pre-emption: field pre-emption, where

the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, . . . and conflict pre-emption, where compliance with

both federal and state regulations is a physical impossibility, . . .

or where state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.’’ 1022

‘‘Preemption of state law by federal statute or regulation is not favored ‘in the absence of persuasive reasons—either that the nature

of the regulated subject matters permits no other conclusion, or

that the Congress has unmistakably so ordained.’’ 1023 However,

‘‘[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.’’ 1024

In the final conclusion, ‘‘the generalities’’ that may be drawn

from the cases do not decide them. Rather, ‘‘the fate of state legislation in these cases has not been determined by these generalities

but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular

instances.’’ 1025

The Standards Applied.— As might be expected from the caveat just quoted, any overview of the Court’s preemption decisions
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1026 Not only congressional enactments can preempt. Agency regulations, when

Congress has expressly or implied empowered these bodies to preempt, are ‘‘the supreme law of the land’’ under the supremacy clause and can displace state law. E.g.,

City of New York v. FCC, 486 U.S. 57, 63–64 (1988); Louisiana Public Service

Comm. v. FCC, 476 U.S. 355 (1986); Capital Cities Cable, Inc. v. Crisp, 467 U.S.

691 (1984); Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141

(1982). Federal common law, i.e., law promulgated by the courts respecting uniquely

federal interests and absent explicit statutory directive by Congress, can also displace state law. See Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (Supreme Court promulgated common-law rule creating government-contractor defense

in tort liability suits, despite Congress having considered and failed to enact bills

doing precisely this); Westfall v. Erwin, 484 U.S. 292 (1988) (civil liability of federal

officials for actions taken in the course of their duty). Finally, ordinances of local

governments are subject to preemption under the same standards as state law.

Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707 (1985). 1027Thus, § 408 of the Federal Meat Inspection Act, as amended by the Wholesome Meat Act, 21 U.S. C. § 678, provides that ‘‘[m]arking, labeling, packaging, or

ingredient requirements in addition to, or different than, those made under this

chapter may not be imposed by any state . . . .’’ See Jones v. Rath Packing Co., 430

U.S. 519, 528–532 (1977). Similarly, much state action is saved by the Securities

Exchange Act of 1934, 15 U.S.C. § 78bb(a), which states that ‘‘[n]othing in this chapter shall affect the jurisdiction of the securities commissioner (or any agency or officer performing like functions) of any State over any security or any person insofar

as it does not conflict with the provisions of this chapter or the rules and regulations

thereunder.’’ For examples of other express preemptive provisions, see Norfolk &

Western Railway Co. v. American Train Dispatchers’ Assn., 499 U.S. 117 (1991);

Exxon Corp. v. Hunt, 475 U.S. 355 (1986). 1028 Aloha Airlines v. Director of Taxation, 464 U.S. 7, 13–14 (1983). 1029Morales v. TWA, 112 S.Ct. 2031 (1992). The section, 49 U.S.C. § 1305(a)(1),

was held to preempt state rules on advertising.

can only make the field seem muddled and to some extent it is. But

some guidelines may be extracted.

Express Preemption. Of course, it is possible for Congress to

write preemptive language that clearly and cleanly prescribes or

does not prescribe displacement of state laws in an area. 1026 Provisions governing preemption can be relatively interpretation

free. 1027 For example, a prohibition of state taxes on carriage of air

passengers ‘‘or on the gross receipts derived therefrom’’ was held

to preempt a state tax on airlines, described by the State as a personal property tax, but based on a percentage of the airline’s gross

income; ‘‘the manner in which the state legislature has described

and categorized [the tax] cannot mask the fact that the purpose

and effect of the provision are to impose a levy upon the gross receipts of airlines.’’ 1028 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. 1029
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1030Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985), repeated in FMC Corp. v. Holliday, 498 U.S. 52, 58 (1991). 1031 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 Board v.

Construction Laborers Vacation Trust, 463 U.S. 1, 24 n. 26 (1983). See IngersollRand Co. v. McClendon, 498 U.S. 133, 138–139 (1990); and see id., 142–145 (describing and applying another preemption provision of ERISA). 1032 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

health-care plan preempted by ERISA); Fort Halifax Packing Co. v. Coyne, 482 U.S.

1 (1987) (state law requiring employers to provide a one-time severance payment

to employees in the event of a plant closing held not preempted by 5–4 vote); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (state law mandating

that certain minimum mental-health-care benefits be provided to those insured

under general health-insurance policy or employee health-care plan is a law ‘‘which

regulates insurance’’ and is not preempted); Shaw v. Delta Air Lines, Inc., 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); 1033 Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608 (1992). The decision as a

canon of construction promulgated two controversial rules. First, the courts should

interpret narrowly provisions that purport to preempt state police-power regulations, and, second, that when a law has express preemption language courts should

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.’’ 1030 The section declares that the statute shall ‘‘supersede any and all State

laws insofar as they now or hereafter relate to any employee benefit plan,’’ but saves to the States the power to enforce ‘‘law[s] . . .

which regulates insurance, banking, or securities,’’ except that an

employee benefit plan governed by ERISA shall not be ‘‘deemed’’ an

insurance company, an insurer, or engaged in the business of insurance for purposes of state laws ‘‘purporting to regulate’’ insurance companies or insurance contracts. 1031 Interpretation of the

provisions has resulted in contentious and divided Court opinions. 1032

Illustrative of the judicial difficulty with ambiguous preemption language is the fractured opinions in the Cipollone case, in

which the Court had to decide whether sections of the Federal Cigarette Labeling and Advertising Act, enacted in 1965 and 1969,

preempted state common-law actions against a cigarette company

for the alleged harm visited on a smoker. 1033 The 1965 provision
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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., 2618; and id., 2625–2626 (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, and courts generally have applied ordinarymeaning 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., 2632–2634 (Justice Scalia

concurring and dissenting). 1034 Id., 2618–2619 (opinion of the court), 2626 (Justice Blackmun concurring). 1035 Id., 2619–2625 (plurality opinion), 2626–2631 (Justice Blackmun concurring

and dissenting), 2634–2637 (Justice Scalia concurring and dissenting). 1036 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The case also

is the source of the often 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.’’ Ibid. 1037 312 U.S. 52 (1941). 1038The 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.’’ Id., 67.

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; 1034 different alignments of Justices concluded that the

1969 provisions did reach common-law claims, as well as positive

enactments, and did preempt some of the claims insofar as they in

fact constituted a requirement or prohibition based on smoking

health. 1035

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,’’ 1036 States are ousted

from the field. Still a paradigmatic example of field preemption is

Hines v. Davidowitz, 1037 in which the Court held that a new federal law requiring the registration of all aliens in the country precluded enforcement of a pre-existing state law mandating registration of aliens within the State. Adverting to the supremacy of national power in foreign relations and the sensitivity of the relationship between the regulation of aliens and the conduct of foreign affairs, the Court had little difficulty declaring the entire field to

have been occupied by federal law. 1038 Similarly, in Pennsylvania
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That standard is obviously drawn from conflict preemption, for the two standards

are frequently intermixed. Nonetheless, not all state regulation is precluded. De

Canas v. Bica, 424 U.S. 351 (1976) (upholding a state law penalizing the employment of an illegal alien, the case arising before enactment of the federal law doing

the same thing). 1039 350 U.S. 497 (1956). 1040 Id., 502–505. Obviously, there is a noticeable blending into conflict preemption.1041 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947). 1042 Compare Campbell v. Hussey, 368 U.S. 297 (1961) (state law requiring tobacco of a certain type to be marked by white tags, ousted by federal regulation that

occupied the field and left no room for supplementation), with Florida Lime & Avocado Growers, Inc., 373 U.S. 132 (1963) (state law setting minimum oil content for

avocados certified as mature by federal regulation is complementary to federal law,

since federal standard was a minimum one, the field having not been occupied). One

should be wary of assuming that a state law that has dual purposes and impacts

will not, just for the duality, be held to be preempted. See Gade v. National Solid

Wastes Mgmt., 112 S.Ct. 2374 (1992); Perez v. Campbell, 402 U.S. 637 (1971) (under

bankruptcy clause). 1043Pacific Gas & Electric Co. v. Energy Resources Conservation & Dev. Comm.,

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).

v. Nelson, 1039 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. 1040

The Rice case itself held that a federal system of regulating the

operations of warehouses and the rates they charged completely occupied the field and ousted state regulation. 1041 However, it is

often a close decision whether a federal law has regulated part of

a field, however defined, or the whole area, so that state law cannot even supplement the federal. 1042 Illustrative of this point is the

Court’s holding that the Atomic Energy Act’s preemption of the

safety aspects of nuclear power did not invalidate a state law conditioning construction of nuclear power plants on a finding by a

state agency that adequate storage and disposal facilities were

available to treat nuclear wastes, since ‘‘economic’’ regulation of

power generation has traditionally been left to the States - an arrangement maintained by the Act - and since the state law could

be justified as an economic rather than a safety regulation. 1043

A city’s effort to enforce stiff penalties for ship pollution that

resulted from boilers approved by the Federal Government was
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1044 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).

1045 Askew v. American Waterways Operators, 411 U.S. 325 (1973).

1046 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). 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 v. Thunder Craft Boats, 489 U.S. 141 (1989)

(under patent clause, state law extending patent-like protection to unpatented designs invades an area of pervasive federal regulation).

1047 City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973).

1048Transcontinental 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).

1049 479 U.S. 1 (1986).

held not preempted, the field of boiler safety, but not boiler pollution, having been occupied by federal regulation. 1044 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. 1045 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. 1046 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 law, federal regulation of aircraft

noise was of such a pervasive nature as to leave no room for state

or local regulation. 1047

Congress may preempt state regulation without itself prescribing a federal standard; it may deregulate a field and thus occupy

it by opting for market regulation and precluding state or local regulation. 1048

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, 1049 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
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1050See 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). See also Free v. Bland, 369 U.S. 663 (1962). 1051Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141 (1982). 1052 California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272 (1987).

Compare Cloverleaf Butter v. Patterson, 315 U.S. 148 (1942) (federal law preempts

more exacting state standards, even though both could be complied with and state

standards were harmonious with purposes of federal law). 1053Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963). 1054The standard is, of course, drawn from Hines v. Davidowitz, 312 U.S. 52,

67 (1941).

sources. The Court, in a brief, per curiam opinion, had no difficulty

finding the state provision preempted. 1050

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. 1051 On the other hand, it was 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. 1052

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. 1053

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. 1054 Thus, the

Court voided a state requirement that the average net weight of a

package of flour in a lot could not be less than the net weight stated on the package. While applicable federal law permitted variations from stated weight caused by distribution losses, such as

through partial dehydration, the State allowed no such deviation.

Although it was possible for a producer to satisfy the federal standard while satisfying the tougher state standard, the Court discerned that to do so defeated one purpose of the federal requirement—the facilitating of value comparisons by shoppers. Because
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1055 Jones v. Rath Packing Co., 430 U.S. 519, 532–543 (1977). 1056 487 U.S. 131 (1988). 1057Philco Aviation v. Shacket, 462 U.S. 406 (1983). 1058Michigan Canners & Freezers Assn. 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 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). 1059 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). 1060Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 614–616 (1991).

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. 1055 In Felder v. Casey, 1056 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. 1057

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. 1058 And a state assertion of the right to set minimum

stream-flow requirements different from those established by

FERC in its licensing capacity was denied as being preempted

under the Federal Power Act, despite language requiring deference

to state laws ‘‘relating to the control, appropriation, use, or distribution of water.’’ 1059

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. 1060 The application of

state antitrust laws to authorize indirect purchasers to recover for

all overcharges passed on to them by direct purchasers was held
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1061 California v. ARC America Corp., 490 U.S. 93 (1989). 1062 Hayfield Northern R. Co. v. Chicago & N. W. Transp. Co., 467 U.S. 622

(1984). See also CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987) (federal law’s broad purpose of protecting shareholders as a group is furthered by state

anti-takeover law); Rose v. Rose, 481 U.S. 619 (1987) (provision governing veterans’

disability benefits protects veterans’ families as well as veterans, hence state childsupport order resulting in payment out of benefits is not preempted). 1063Throughout 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 Dept. of Industry v. Gould, Inc., 475 U.S. 282 (1986) (States may not supplement

Board enforcement by debarring from state contracts persons or firms that have violated the NLRA); Golden Gate Transit Corp. v. City of Los Angeles, 475 U.S. 608

(1986) (City may not condition taxicab franchise on settlement of strike by set date,

since this intrudes into collective-bargaining process protected by NLRA). On the

other hand, the NLRA’s protection of associational rights is not so strong as to outweigh the Social Security Act’s policy permitting States to determine whether to

award unemployment benefits to persons voluntarily unemployed as the result of a

labor dispute. New York Telephone Co. v. New York Labor Dept., 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).

to implicate no preemption concerns, inasmuch as the federal antitrust laws had been interpreted as not permitting indirect purchasers to recover under federal law; state law may be inconsistent

with federal law but in no way did it frustrate federal objectives

and policies. 1061 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. 1062

Federal Versus State Labor Laws.—One group of cases,

which has caused the Court much difficulty over the years, concerns the effect of federal labor laws on state power to govern

labor-management relations. Although the Court some time ago

reached a settled rule, changes in membership on the Court reopened the issue and modified the rules.

With the enactment of the National Labor Relations Act and

subsequent amendments, Congress declared a national policy in

labor-management relations and established the NLRB to carry out

that policy. 1063 It became the Supreme Court’s responsibility to determine what role state law on labor-management relations was to

play. At first, the Court applied a test of determination whether

the state regulation was in direct conflict with the national regulatory scheme. Thus, in one early case, the Court held that an

order by a state board which commanded a union to desist from

mass picketing of a factory and from assorted personal threats was

not in conflict with the national law that had not been invoked and
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1064 Allen-Bradley Local No. 1111 v. WERB, 315 U.S. 740 (1942). 1065 United Automobile Workers v. WERB, 336 U.S. 245 (1949) (overruled in

Machinists & Aerospace Workers v. WERC, 427 U.S. 132 (1976)). 1066 Algoma Plywood Co. v. WERB, 336 U.S. 301 (1949). 1067 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). 1068 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). 1069Weber 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 Board, 330 U.S. 767 (1947). Of course, where Congress clearly specifies, the

Court has had no difficulty. Thus, in the NLRA, Congress provided, 29 U.S.C.

§ 164(b), that state laws on the subject could override the federal law on union security arrangements and the Court sustained those laws. Lincoln Federal Labor Union

v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL v. American Sash &

Door Co., 335 U.S. 538 (1949). When Congress in the Railway Labor Act, 45 U.S.C.

§ 152, Eleventh, provided that the federal law on union security was to override contrary state laws, the Court sustained that determination. Railway Employees’ Department v. Hanson, 351 U.S. 225 (1956). The Court has held that state courts may

adjudicate questions relating to the permissibility of particular types of union security arrangements under state law even though the issue involves as well an interpretation of federal law., Retail Clerks International Association v. Schermerhorn,

375 U.S. 96 (1963). 1070Garner 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).

that did not touch on some of the union conduct in question. 1064

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, 1065 while another order of the board was also sustained in its prohibition of the

discharge of an employee under a maintenance-of-membership

clause inserted in a contract under pressure from the War Labor

Board and which violated state law. 1066

On the other hand, a state statute requiring business agents

of unions operating in the State to file annual reports and to pay

an annual fee of one dollar was voided as in conflict with federal

law. 1067 And state statutes providing for mediation and outlawing

public utility strikes were similarly voided as being in specific conflict with federal law. 1068 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. 1069 The latter approach was predominant through the 1950s

as the Court voided state court action in enjoining 1070 or awarding
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1071San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957). 1072Guss v. Utah Labor Board, 353 U.S. 1 (1957). 1073Teamsters Union v. Oliver, 358 U.S. 283 (1959). 1074Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955). 1075Guss v. Utah Labor Board, 353 U.S. 1 (1957). The ‘‘no-man’s land’’ thus created by the difference between the reach of Congress’ commerce power and the

NLRB’s finite resources was closed by 73 Stat. 541, 29 U.S.C. § 164(c), which authorized the States to assume jurisdiction over disputes which the Board had indicated

through promulgation of jurisdictional standards that it would not treat. 1076 359 U.S. 236 (1959). 1077 Id., 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 Local 1416 v. Ariadne Shipping Co., 397 U.S. 195 (1970); Amalgamated Assn. of Street, Electric Railway &

Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971). Cf. Nash v. Florida Industrial Comm., 389 U.S. 235 (1967). 1078 United Automobile Workers v. WERB, 351 U.S. 266 (1956); Youngdahl v.

Rainfair, 355 U.S. 131 (1957). 1079 United Automobile Workers v. Russell, 356 U.S. 634 (1958); United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 (1954).

damages 1071 for peaceful picketing, in awarding of relief by damages or otherwise for conduct which constituted an unfair labor

practice under federal law, 1072 or in enforcing state antitrust laws

so as to affect collective bargaining agreements 1073 or to bar a

strike as a restraint of trade, 1074 even with regard to disputes over

which the NLRB declined to assert jurisdiction because of the degree of effect on interstate commerce. 1075

In San Diego Building Trades Council v. Garmon, 1076 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.’’ 1077

For much of the period since Garmon, the dispute in the Court

concerned the scope of the few exceptions permitted in the Garmon

principle. First, when picketing is not wholly peaceful but is attended by intimidation, violence, and obstruction of the roads affording access to the struck establishment, state police powers have

been held not disabled to deal with the conduct and narrowlydrawn injunctions directed against violence and mass picketing

have been permitted 1078 as well as damages to compensate for

harm growing out of such activities. 1079

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 fed-
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1080 International Assn. of Machinists v. Gonzales, 356 U.S. 617 (1958). 1081 Journeymen Local 100 v. Borden, 373 U.S. 690 (1963); Iron Workers Local

207 v. Perko, 373 U.S. 701 (1963). Applying Perko, the Court held that a state court

action by a supervisor alleging union interference with his contractual relationship

with his employer is preempted by the NLRA. Local 926, Intl. Union of Operating

Engineers v. Jones, 460 U.S. 669 (1983). 1082 373 U.S., 697; 373 U.S., 705. 1083 Amalgamated Assn. of Street, Electric Railway & Motor Coach Employees

v. Lockridge, 403 U.S. 274 (1971). 1084 Id., 296. 1085 383 U.S. 53 (1966). 1086 418 U.S. 264 (1974).

eral law. 1080 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. 1081 Gonzales was said to be limited

to ‘‘purely internal union matters.’’ 1082 Finally, Gonzales, was

abandoned in a five-to-four decision in which the Court held that

a person who alleged that his union had misinterpreted its constitution and its collective bargaining agreement with the individual’s employer in expelling him from the union and causing him to

be discharged from his employment because he was late paying his

dues, had to pursue his federal remedies. 1083 While 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, Justice Harlan wrote for the Court, state court resolution

in this case involved an interpretation of the contract’s union security clause, a matter on which federal regulation is extensive. 1084

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, 1085 the Court permitted a state court adjudication

of a defamation action arising out of a labor dispute. And in Letter

Carriers v. Austin, 1086 the Court held that federal law preempts

state defamation laws in the context of labor disputes to the extent

that the State seeks to make actionable defamatory statements in

labor disputes published without knowledge of their falsity or in

reckless disregard of truth or falsity.

However, a state tort action for the intentional infliction of

emotional distress occasioned through an alleged campaign of personal abuse and harassment of a member of the union by the union

and its officials was held not preempted by federal labor law. Federal law was not directed to the ‘‘outrageous conduct’’ alleged, and

NLRB resolution of the dispute would neither touch upon the claim

of emotional distress and physical injury nor award the plaintiff
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1087Farmer 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 Intl. Longshoremen’s Assn. v. Davis, 476 U.S. 380 (1986). 1088 436 U.S. 180 (1978). 1089San Diego Bldg Trades Council v. Garmon, 359 U.S. 236, 244 (1959).

any compensation. But state court jurisdiction, in order that there

not be interference with the federal scheme, must be premised on

tortious conduct either unrelated to employment discrimination or

a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function

of the actual or threatened discrimination itself. 1087

A significant retrenchment of Garmon occurred in Sears, Roebuck & Co. v. Carpenters, 1088 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’’ 1089 in holding that where there exists ‘‘a significant

state interest in protecting the citizens from the challenged conduct’’ and there exists ‘‘little risk of interference with the regulatory jurisdiction’’ of the NLRB, state law is not preempted. Here,

there was obviously a significant state interest in protecting the

company from trespass; the second, ‘‘critical inquiry’’ was whether

the controversy presented to the state court was identical to or different from that which could have been presented to the Board.

The Court concluded that the controversy was different. The Board

would have been presented with determining the motivation of the

picketing and the location of the picketing would have been irrele-
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1090Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 190–198 (1978). 1091 Id., 199–207. 1092 61 Stat. 156 (1947), 29 U.S.C. § 185(a). 1093 Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). The state courts

must, however, apply federal law. Local 174, Teamsters v. Lucas Flour Co., 369 U.S.

95 (1962).

vant; 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. 1090

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. 1091

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, 1092 which authorizes suits in federal, and

state, 1093 courts to enforce collective bargaining agreements. The

Court has held that in enacting § 301, Congress authorized actions

based on conduct arguably subject to the NLRA, so that the

Garmon preemption doctrine does not preclude judicial enforcement of duties and obligations which would otherwise be within the

exclusive jurisdiction of the NLRB so long as those duties and obli-
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1094Smith v. Evening News Assn., 371 U.S. 195 (1962); Humphrey v. Moore,

375 U.S. 335 (1964); Vaca v. Sipes, 386 U.S. 171 (1967). 1095See 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). 1096 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). See also Intl. 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 collective-bargaining agreement preempted). 1097 Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S.

369 (1969); Machinists & Aerospace Workers v. WERC, 427 U.S. 132 (1976); Golden

Gate Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986). And, cf New York

Telephone Co. v. New York State Dept. of Labor, 440 U.S. 519 (1979). 1098Metropolitan 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). 1099 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

gations are embodied in a collective-bargaining agreement, perhaps

as interpreted in an arbitration proceeding. 1094

Here, too, the permissible role of state tort actions has been in

great dispute. Generally, a state tort action as an alternative to a

§ 301 arbitration or enforcement action is preempted if it is substantially dependent upon analysis of the terms of a collective-bargaining agreement. 1095 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. 1096

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. 1097 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. 1098

COMMERCE WITH INDIAN TRIBES

Congress’ power to regulate commerce ‘‘with the Indian tribes,’’

once almost rendered superfluous by Court decision, 1099 has now
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weak and dependent people. Cf. United States v. Holiday, 3 Wall. (70 U.S.) 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). 1100 16 Stat. 544, 566, 25 U.S.C. § 71. 1101 E.g., Puyallup Tribe v. Washington Game Dept., 433 U.S. 165 (1977); Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S.

658 (1979); Montana v. United States, 450 U.S. 544 (1981). 1102McClanahan v. Arizona Tax Comm., 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, 553–556 (1974); Bryan v. Itasca County, 426 U.S. 373, 376 n. 2 (1976);

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980); Ramah Navajo

School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982). 1103White 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., 837 (quoting White Mountain, supra,

143).1104 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).

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, 1100 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. 1101 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.’’ 1102 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. 1103

Thus, the question of preemption is not governed by the standards

of preemption developed in other areas. ‘‘Instead, the traditional

notions of tribal sovereignty, and the recognition and encouragement of this sovereignty in congressional Acts, inform the preemption analysis that governs this inquiry. . . . As a result, ambiguities in federal law should be construed generously, and federal

pre-emption is not limited to those situations where Congress has

explicitly announced an intention to pre-empt state activity.’’ 1104 A
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1105Three 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). 1106 Rice v. Rehner, 463 U.S. 713 (1983). 1107McClanahan v. Arizona Tax Comm., 411 U.S. 164, 165 (1973). 1108Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); McClanahan v.

Arizona Tax Comm., 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. 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, 112 S.Ct. 683 (1992). 1109Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–149 (1973). 1110White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Central Machinery Co. v. Arizona Tax Comm., 448 U.S. 160 (1980); Ramah Navajo School

Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982). 1111 490 U.S. 163 (1989). 1112 Held permissible in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).

corollary is that the preemption doctrine will not be applied strictly

to prevent States from aiding Native Americans. 1105 However, the

protective rule is inapplicable to state regulation of liquor transactions, since there has been no tradition of tribal sovereignty with

respect to that subject. 1106

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’’ 1107—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. 1108 Off-reservation Indian activities require an express federal exemption to deny state

taxing power. 1109 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. 1110

That operating premise, however, seems to have been eroded.

For example, in Cotton Petroleum Corp. v. New Mexico, 1111 the

Court held that, in spite of the existence of multiple taxation occasioned by a state oil and gas severance tax applied to on-reservation operations by non-Indians, which was already taxed by the

tribe, 1112 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 les-
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1113 Id., 490 U.S., 185 (distinguishing Bracker and Ramah Navaho School Bd). 1114 County of Yakima v. Confederated Tribes & Bands of the Yakima Indian

Nation, 112 S.Ct. 683, 692 (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. 1115 E.g., New Mexico v. Mescalero Tribe, 462 U.S. 324 (1983). 1116 6 Pet. (31 U.S.) 515 (1832). See also Cherokee Nation v. Georgia, 5 Pet. (30

U.S.) 1 (1831). Under this doctrine, tribes possess sovereign immunity from suit in

the same way as the United States and the States do. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506, 512–513 (1940). The Court has repeatedly rejected arguments to

abolish tribal sovereign immunity or at least to curtail it. Oklahoma Tax Comm. v.

Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 510 (1991). 1117 United States v. Wheeler, 435 U.S. 313 (1978) (inherent sovereign power to

punish tribal offenders). But tribes possess no criminal authority over non-Indians.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). And see Duro v. Reina,

495 U.S. 676 (1990) (tribe has no criminal jurisdiction over non-tribal Indians who

commit crimes on the reservation; jurisdiction over members rests on consent of the

self-governed, and absence of consent defeats jurisdiction). Compare California v.

Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (state regulation of on-reservation bingo is preempted as basically civil/regulatory rather than criminal/prohibitory), with Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989) (extensive ownership of land within ‘‘open areas’’ of reservation by non-members of tribe precludes application of tribal zoning within such

areas). Among the fundamental attributes of sovereignty which a tribe possesses unless divested of it by federal law is the power to tax non-Indians entering the reservation to engage in economic activities. Washington v. Confederated Colville

Tribes, 447 U.S. 134 (1980); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). 1118 United States v. Kagama, 118 U.S. 375, 381 (1886); United States v. Wheeler, 435 U.S. 313, 323 (1978).

sees justified state taxation and also distinguished earlier cases in

which the State had ‘‘asserted no legitimate regulatory interest

that might justify the tax.’’ 1113 Still further erosion, or relaxation,

of the principle of construction may be found in a later case, in

which the Court, confronted with arguments that the imposition of

particular state taxes on Indian property on the reservation was inconsistent with self-determination and self-governance, denominated these as ‘‘policy’’ arguments properly presented to Congress

rather than the Court. 1114

The impact on tribal sovereignty is also a prime determinant

of relative state and tribal regulatory authority. 1115

Since Worcester v. Georgia, 1116 it has been recognized that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. 1117 They are,

of course, no longer possessed of the full attributes of sovereignty, 1118 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
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1119 United States v. Wheeler, 435 U.S. 313, 323 (1978). 1120 470 U.S. 226 (1985). 1121 1 Stat. 379 (1793). 1122 Id., 470 U.S., 246–248. 1123 Id., 255, 257 (Justice Stevens). 1124 ‘‘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)). 1125Morton 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).

limited character. It exists only at the sufferance of Congress and

is subject to complete defeasance.’’ 1119

In a case of major import for the settlement of Indian land

claims, the Court ruled in County of Oneida v. Oneida Indian Nation, 1120that an Indian tribe may obtain damages for wrongful possession of land conveyed in 1795 without the federal approval required by the Nonintercourse Act. 1121The 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 land-conveyance treaties containing references to earlier

conveyances that had violated the Nonintercourse Act did not constitute ratification of the invalid conveyances. 1122Similarly, 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. 1123

While the power of Congress over Indian affairs is broad, it is

not limitless. 1124 The Court has promulgated a standard of review

that defers to the legislative judgment ‘‘[a]s long as the special

treatment can be tied rationally to the fulfillment of Congress’

unique obligation toward the Indians . . . ‘‘ 1125 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 com-
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1126 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). 1127 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892). 1128Scott v. Sandford, 19 How. (60 U.S.) 393 (1857). 1129 Id., 417, 419. 1130Mackenzie v. Hare, 239 U.S. 299, 311 (1915). 1131 Chirac v. Chirac, 2 Wheat. (15 U.S.) 259, 269 (1817); United States v. Wong

Kim Ark, 169 U.S. 649, 701 (1898). 1132The first naturalization act, 1 Stat. 103 (1790), so provided. See 8 U.S.C.

§ 1421. In Holmgren v. United States, 217 U.S. 509 (1910), it was held that Congress may provide for the punishment of false swearing in the proceedings in state

courts. 1133Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. Foster, 2 Binn. (Pa.) 110

(1809). See K. PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES (New York:

1918), ch. 5.

pensating the tribe or otherwise giving the Indians the full value

of the land. 1126

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’ 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.’’ 1127 In the Dred Scott case, 1128 the Court asserted

that the power of Congress under this clause applies only to ‘‘persons born in a foreign country, under a foreign government.’’ 1129

These dicta are much too narrow to describe the power that Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. ‘‘As a government, the United

States is invested with all the attributes of sovereignty. As it has

the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other

countries.’’ 1130

Congress’ power over naturalization is an exclusive power; no

State has the power to constitute a foreign subject a citizen of the

United States. 1131 But power to naturalize aliens may be, and was

early, devolved by Congress upon state courts of record. 1132 And

States may confer the right of suffrage upon resident aliens who

have declared their intention to become citizens and many did so

until recently. 1133
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1134 United States v. Macintosh, 283 U.S. 605, 615 (1931); Fong Yue Ting v.

United States, 149 U.S. 698, 707–708 (1893). A caveat to this statement is that with

regard to persons naturalized in the United States the qualification may only be a

condition precedent and not a condition subsequent, Schneider v. Rusk, 377 U.S.

163 (1964), whereas persons born abroad who are made citizens at birth by statute

if one or both of their parents are citizens are subject to conditions subsequent. Rogers v. Bellei, 401 U.S. 815 (1971). 1135 1 Stat. 103 (1790). 1136 Act of July 14, 1870, § 7, 16 Stat. 254, 256. 1137 Act of May 6, 1882, § 1, 22 Stat. 58. 1138 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. den., 317 U.S. 634

(1942). 1139The Alien and Sedition Act of 1798, 1 Stat. 570, empowered the President

to deport any alien he found dangerous to the peace and safety of the Nation. In

1903, Congress provided for denial of naturalization and for deportation for mere

belief in certain doctrines, i.e., anarchy. Act of March 3, 1903, 32 Stat. 1214. See

United States ex rel. Turner v. Williams, 194 U.S. 279 (1904). The range of forbidden views was broadened in 1918. Act of October 15, 1918, § 1, 40 Stat. 1012. The

present law is found in 8 U.S.C. § 1424 and is discussed infra, pp. 268–270. 1140 E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an ‘‘honorary citizen

of the United States.’’). 1141 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United

States, 179 U.S. 191 (1900). 1142 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–169 (1892).

Citizenship by naturalization is a privilege to be given, qualified, or withheld as Congress may determine, an individual may

claim it as a right only upon compliance with the terms Congress

imposes. 1134 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 persons[s],’’ 1135 which was expanded in 1870 so that

persons of ‘‘African nativity and . . . descent’’ were entitled to be

naturalized. 1136 Orientals were specifically excluded from eligibility in 1882, 1137 and the courts enforced these provisions without

any indication that constitutional issues were thereby raised. 1138

These exclusions are no longer law. Present naturalization statutes

continue and expand on provisions designed to bar subversives, dissidents, and radicals generally from citizenship. 1139

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, 1140 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, 1141 or through treaty provision. 1142
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1143 United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). 1144 66 Stat. 235, 8 U.S.C. § 1401. 1145 § 301(a)(1), 8 U.S.C. § 1401(a)(1). 1146 Rogers v. Bellei, 401 U.S. 815 (1971). 1147 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

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. 1143 This contemplation is given statutory expression in

§ 301 of the Immigration and Nationality Act of 1952, 1144 which

itemizes those categories of persons who are citizens of the United

States at birth; all other persons in order to become citizens must

pass through the naturalization process. The first category merely

tracks the language of the first sentence of § 1 of the Fourteenth

Amendment in declaring that all persons born in the United States

and subject to the jurisdiction thereof are citizens by birth. 1145 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, 1146 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. 1147 The principal dif-
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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). 1148 Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 58–62 (1958). 1149 § 311, 66 Stat. 239 (1952), 8 U.S.C. § 1422. 1150 § 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). 1151 § 313(c), 66 Stat. 241 (1952), 8 U.S.C. § 1424(c). 1152 § 316(a)(3), 66 Stat. 242, 8 U.S.C. § 1427(a)(3).

ference is that the former persons may not be involuntarily expatriated whereas the latter may be, subject only to due process protections. 1148

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.’’ 1149 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. 1150

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.’’ 1151

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.’’ 1152 The immigration and

nationality laws themselves include a number of specific congressional determinations that certain persons do not possess ‘‘good
ART. I—LEGISLATIVE DEPARTMENT 269

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1153 § 101(f)(1), 66 Stat. 172, 8 U.S.C. § 1101(f)(1). 1154 § 101(f)(2), 66 Stat. 172, 8 U.S.C. § 1101(f)(2). 1155 § 212(a)(11), 66 Stat. 182, 8 U.S.C. § 1182(a)(11). 1156 § 101(f) (4) and (5), 66 Stat. 172, 8 U.S.C. § 1101(f) (4) and (5). 1157 § 101(f) (7) and (8), 66 Stat. 172, 8 U.S.C. § 1101(f) (7) and (8). 1158 § 212(a)(4), 66 Stat. 182, 8 U.S.C. § 1182(a)(4), barring aliens afflicted with

‘‘psychopathic personality,’’ a congressional euphemism including homosexuality.

Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 (1967). 1159 § 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. 1160 § 340(a), 66 Stat. 260 (1952), 8 U.S.C. § 1451(a). See Kungys v. United

States, 485 U.S. 759 (1988) (badly fractured Court opinion dealing with the statutory requirements in a denaturalization proceeding under this section). And see

Johannessen v. United States, 225 U.S. 227 (1912). Congress has imposed no time

bar applicable to proceedings to revoke citizenship, so that many years after naturalization has taken place a naturalized citizen remains subject to divestment upon

proof of fraud. Costello v. United States, 365 U.S. 265 (1961); Polites v. United

States, 364 U.S. 426 (1960); Knauer v. United States, 328 U.S. 654 (1946);

Fedorenko v. United States, 449 U. S. 490 (1981).

moral character,’’ including persons who are ‘‘habitual drunkards,’’ 1153 adulterers, 1154 polygamists or advocates of polygamy, 1155 gamblers, 1156 convicted felons, 1157 and homosexuals. 1158

In order to petition for 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.’’ 1159

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. 1160

Moreover, if within a year of his naturalization a person joins an

organization or becomes in any way affiliated with one which was
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1161 340(c), 66 Stat. 261 (1952), 8 U.S.C. § 1451(c). The time period had previously been five years. 1162Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 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., 275–276 (Justice Harlan dissenting: the dictum, ‘‘cannot have been intended to reach the question of citizenship.’’). The issue in Osborn was the right of

the Bank to sue in federal court. Osborn had argued that the fact that the bank

was chartered under the laws of the United States did not make any legal issue

involving the bank one arising under the laws of the United States for jurisdictional

purposes; to argue the contrary, Osborn contended, was like suggesting that the fact

that persons were naturalized under the laws of Congress meant such persons had

an automatic right to sue in federal courts, unlike natural-born citizens. The quoted

language of Marshall’s rejects this attempted analogy. 1163 328 U.S. 654, 658 (1946). 1164 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).

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. 1161

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.’’ 1162 A similar idea was expressed in Knauer

v. United States. 1163 ‘‘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. 1164 And the naturalized citizen

within a year of his naturalization will join a questionable organi-
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Sec. 8—Powers of Congress Cl. 4—Naturalization and Citizenship

1165See 8 U.S.C. § 1451(c). 1166 231 U.S. 9 (1913). The provision has been modified to reduce the period to

one year. 8 U.S.C. § 1451(d). 1167 377 U.S. 163 (1964). 1168 Id., 165. 1169While 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. 1170Schneider v. Rusk, 377 U.S. 163, 168–169 (1964). 1171 Afroyim v. Rusk, 387 U.S. 253 (1967). 1172 401 U.S. 815 (1971).

zation at his peril. 1165 In Luria v. United States, 1166 the Court sustained a statute making prima facie evidence of bad faith a naturalized citizen’s assumption of residence in a foreign country within

five years after the issuance of a certificate of naturalization.But

in Schneider v. Rusk, 1167 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.’’ 1168

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. 1169

‘‘This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance

to this country than do the native-born. This is an assumption that

is impossible for us to make. . . . A native-born citizen is free to

reside abroad indefinitely without suffering loss of citizenship. The

discrimination aimed at naturalized citizens drastically limits their

rights to live and work abroad in a way that other citizens may.

It creates indeed a second-class citizenship. Living abroad, whether

the citizen be naturalized or native-born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance.’’ 1170

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. 1171 But in

Rogers v. Bellei, 1172 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 subse-
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Sec. 8—Powers of Congress Cl. 4—Naturalization and Citizenship

1173 Id., 835–836. 1174 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. 1175Perkins 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). 1176Governeur v. Robertson, 11 Wheat. (24 U.S.) 332 (1826); Osterman v. Baldwin, 6 Wall. (73 U.S.) 116 (1867); Manuel v. Wulff, 152 U.S. 505 (1894). 1177Shanks v. DuPont, 3 Pet. (28 U.S.) 242, 246 (1830). 1178 2 J. KENT, COMMENTARIES (New York: 1827), 49–50.

quent in this area impresses one with ‘second-class citizenship.’

That cliche is too handy and too easy, and, like most cliches, can

be misleading. That the condition subsequent may be beneficial is

apparent in the light of the conceded fact that citizenship was fully

deniable. The proper emphasis is on what the statute permits him

to gain from the possible starting point of noncitizenship, not on

what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place.

His citizenship, while it lasts, although conditional, is not ‘secondclass.’’’ 1173

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. 1174

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. 1175 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. 1176

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, 1177 and Chancellor Kent, in his writings, 1178 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
ART. I—LEGISLATIVE DEPARTMENT 273

Sec. 8—Powers of Congress Cl. 4—Naturalization and Citizenship

1179 J. TENBROEK, ANTI-SLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT

(New York: 1951), 71–94; see generally J. ROCHE, THE EARLY DEVELOPMENT OF

UNITED STATES CITIZENSHIP (New York: 1949). 1180 Act of July 27, 1868, 15 Stat. 223. While the Act’s preamble rhetorically

proclaims the ‘‘natural and inherent right of all people’’ to expatriate themselves,

its title is ‘‘An Act concerning the Rights of American Citizens in foreign States’’ and

its operative parts are concerned with that subject. It has long been taken, however,

as a general proclamation of United States recognition of the right of United States

citizens to expatriate themselves. Mackenzie v. Hare, 239 U.S. 299, 309 (1915);

Mandoli v. Acheson, 344 U.S. 133, 135–136 (1952). Cf. Savorgnan v. United States,

338 U.S. 491, 498 n. 11 (1950). 1181The 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 (Washington: 1899), 223. 1182 Nationality Act of 1940, 54 Stat. 1169. 1183 Ibid. 1184 58 Stat. 746 (1944). 1185 68 Stat. 1146 (1954). 1186 34 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922).

there was wide disagreement on the basis of national citizenship in

the first place, with some contending that national citizenship was

derivative from state citizenship, which would place the power of

providing for expatriation in the state legislatures, and with others

contending for the primacy of national citizenship, which would

place the power in Congress. 1179 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. 1180 An 1865 law provided for the forfeiture of the ‘‘rights of

citizenship’’ of draft-dodgers and deserters, but whether the statute

meant to deprive such persons of citizenship or of their civil rights

is unclear. 1181

Beginning in 1940, however, Congress did enact laws designed

to strip of their citizenship persons who committed treason, 1182 deserted the armed forces in wartime, 1183 left the country to evade

the draft, 1184 or attempted to overthrow the Government by force

or violence. 1185 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. 1186

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 national-
274 ART. I—LEGISLATIVE DEPARTMENT

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1187Perkins v. Elg, 307 U.S. 325, 334 (1939). 1188Mackenzie v. Hare, 239 U.S. 299, 309, 311–312 (1915); Savorgnan v. United

States, 338 U.S. 491, 506 (1950). 1189 34 Stat. 1228 (1907). 1190Mackenzie v. Hare, 239 U.S. 299 (1915). 1191See 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. 1192Perez 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

ity and allegiance.’’ 1187 But while the Court has hitherto insisted

on the voluntary character of the renunciation, it has sustained the

power of Congress to prescribe conditions and circumstances the

voluntary entering into of which constitutes renunciation; the person need not intend to renounce so long as he intended to do what

he did in fact do. 1188

The Court first encountered the constitutional issue of forced

expatriation in the rather anomalous form of the statute, 1189 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. 1190

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. 1191 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. 1192 But at the same
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if the foreign state permitted aliens or dual nationals to vote. Chief Justice Warren

and Justices Black and Douglas denied that expatriation is within Congress’ power

to prescribe for an act, like voting, which is not necessarily a sign of intention to

relinquish citizenship. 1193Trop v. Dulles, 356 U.S. 86 (1958). Chief Justice Warren for himself and

three Justices held that expatriation for desertion was a cruel and unusual punishment proscribed by the Eighth Amendment. Justice Brennan concurred on the

ground of a lack of the requisite relationship between the statute and Congress’ war

powers. For the four dissenters, Justice Frankfurter argued that Congress had

power to impose loss of citizenship for certain activity and that there was a rational

nexus between refusal to perform a duty of citizenship and deprivation of citizenship. Justice Frankfurter denied that the penalty was cruel and unusual punishment and denied that it was punishment at all ‘‘in any valid constitutional sense.’’

Id., 124. 1194Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). For the Court Justice

Goldberg held that penal expatriation effectuated solely by administrative determination violated due process because of the absence of procedural safeguards. Justices Black and Douglas continued to insist Congress could not deprive a citizen of

his nationality at all. Justice Harlan for the dissenters thought the statute a valid

exercise of Congress’ war powers but the four dissenters divided two-to-two on the

validity of a presumption spelled out in the statute. 1195Schneider v. Rusk, 377 U.S. 163 (1964). 1196 387 U.S. 253 (1967). 1197 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.

time, another five-to-four decision, in which a majority rationale

was lacking, struck down punitive expatriation visited on persons

convicted by court-martial of desertion from the armed forces in

wartime. 1193 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. 1194 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. 1195

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, 1196 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. 1197 The continuing vitality of this decision was called into question by another fiveto-four decision in 1971, which technically distinguished Afroyim in

upholding a congressionally-prescribed loss of citizenship visited
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1198 Rogers v. Bellei, 401 U.S. 815 (1971). The three remaining Afroyim dissenters plus Chief Justice Burger and Justice Blackmun made up the majority, the

three remaining Justices of the Afroyim majority plus Justice Marshall made up the

dissenters. The continuing vitality of Afroyim was assumed in Vance v. Terrazas,

444 U. S. 252 (1980), in which a divided Court upheld a congressionally-imposed

standard of proof, preponderance of evidence, by which to determine whether one

had by his actions renounced his citizenship. 1199 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); Kleindeist 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 Brenupon 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. 1198 Thus, while Afroyim was

distinguished, the tenor of the majority opinion was hostile to its

holding, and it may be that in a future case it will be overruled.

The issue, then, of the constitutionality of congressionally-prescribed expatriation must be taken as unsettled.

ALIENS

The Power of Congress to Exclude Aliens

The power of Congress ‘‘to exclude aliens from the United

States and to prescribe the terms and conditions on which they

come in’’ is absolute, being an attribute of the United States as a

sovereign nation. ‘‘That the government of the United States,

through the action of the legislative department, can exclude aliens

from its territory is a proposition which we do not think open to

controversy. Jurisdiction over its own territory to that extent is an

incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. . . . The United States, in their

relation to foreign countries and their subjects or citizens, are one

nation, invested with powers which belong to independent nations,

the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.’’ 1199
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Sec. 8—Powers of Congress Cl. 4—Aliens

nan, in dissent, argued for reconsideration of the long line of precedents and for constitutional restrictions on the Government. Id., 858. That there exists some limitation upon exclusion of aliens is one permissible interpretation of Reagan v.

Abourezk, 484 U.S. 1 (1987), affg. by an equally divided Court, 785 F.2d 1043

(D.C.Cir. 1986), holding that mere membership in the Communist Party could not

be used to exclude an alien on the ground that his activities might be prejudicial

to the interests of the United States.

The power of Congress to prescribe the rules for exclusion or expulsion of aliens

is a ‘‘fundamental sovereign attribute’’ which is ‘‘of a political character and therefore subject only to narrow judicial review.’’ Hampton v. Mow Sun Wong, 426 U.S.

88, 101 n. 21 (1976); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976); Fiallo v. Bell, 430

U.S. 787, 792 (1977). Although aliens are ‘‘an identifiable class of persons,’’ who

aside from the classification at issue ‘‘are already subject to disadvantages not

shared by the remainder of the community,’’ Hampton v. Mow Sun Wong, supra,

102, Congress may treat them in ways that would violate the equal protection

clause if a State should do it. Diaz, supra (residency requirement for welfare benefits); Fiallo, supra (sex and illegitimacy classifications). Nonetheless in Mow Sun

Wong, supra, 103, the Court observed that when the Federal Government asserts

an overriding national interest as justification for a discriminatory rule that would

violate the equal protection clause if adopted by a State, due process requires that

it be shown that the rule was actually intended to serve that interest. The case

struck down a classification that the Court thought justified by the interest asserted

but that had not been imposed by a body charged with effectuating that interest.

See Vergara v. Hampton, 581 F.2d 1281 (C.A. 7, 1978). 1200 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. 1201 Act of March 3, 1875, 18 Stat. 477. 1202 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). 1203 Act of May 6, 1882, 22 Stat. 58. 1204 Act of December 17, 1943, 57 Stat. 600. 1205 Act of May 26, 1924, 43 Stat. 153. 1206 Act of October 3, 1965, P.L. 89–236, 79 Stat. 911.

Except for the Alien Act of 1798, 1200 Congress went almost a

century without enacting laws regulating immigration into the

United States. The first such statute, in 1875, barred convicts and

prostitutes 1201 and was followed by a series of exclusions based on

health, criminal, moral, economic, and subversion considerations. 1202 Another important phase was begun with passage of

the Chinese Exclusion Act in 1882, 1203 which was not repealed

until 1943. 1204 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. 1205 This national origins quota system was in effect until

it was repealed in 1965. 1206 The basic law remains the Immigra-
278 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 4—Aliens

1207 Act of June 27, 1952, P.L. 82–414, 66 Stat. 163, 8 U.S.C. §§ 1101 et seq.

as amended. 1208The list of excludable aliens may be found at 8 U.S.C. § 1182. The list has

been modified and classified by category in recent amendments. 1209 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). 1210 Under the War Brides Act of 1945, 59 Stat. 659. 1211 Id., 338 U.S., 543. 1212 E.g., Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966).

tion and Nationality Act of 1952, 1207 which, with certain revisions

in 1965 and later piecemeal alterations, regulates who may be admitted and under what conditions; the Act, it should be noted, contains a list of 31 excludable classes of aliens. 1208

Numerous cases underscore the sweeping nature of the powers

of the Federal Government to exclude aliens and to deport by administrative process persons in excluded classes. For example, in

United States ex rel. Knauff v. Shaughnessy, 1209 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, 1210 was held to be unreviewable

by the courts. Nor were regulations on which the order was based

invalid as an undue delegation of legislative power. ‘‘Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may

in broad terms authorize the executive to exercise the power, e.g.,

as was done here, for the best interest of the country during a time

of national emergency. Executive officers may be entrusted with

the duty of specifying the procedures for carrying out the congressional intent.’’ 1211 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. 1212

Congress’ power to admit aliens under whatever conditions it

lays down is exclusive of state regulation. The States ‘‘can neither

add to nor take from the conditions lawfully imposed by Congress

upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully

within the United States conflict with this constitutionally derived
ART. I—LEGISLATIVE DEPARTMENT 279

Sec. 8—Powers of Congress Cl. 4—Aliens

1213Takahashi v. Fish & Game Commission, 334 U.S. 410, 419 (1948); De

Canas v. Bica, 424 U.S. 351, 358 n. 6 (1976); Toll v. Moreno, 458 U.S. 1, 12–13

(1982). See also Hines v. Davidowitz, 312 U.S. 52, 66 (1941); Graham v. Richardson,

403 U.S. 365, 376–380 (1971). 1214 E.g., Heim v. McCall, 239 U.S. 175 (1915); Ohio ex rel. Clarke v. Deckebach,

274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 634, 646–649 (1973); De Canas

v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). 1215Purporting 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). 1216 54 Stat. 670, 8 U.S.C. §§ 1301–1306. 1217See Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941). 1218 312 U.S. 52 (1941).

federal power to regulate immigration, and have accordingly been

held invalid.’’ 1213 This principle, however, has not precluded all

state regulations dealing with aliens. 1214 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. 1215

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. 1216 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. 1217

An important benefit of this comprehensive regulation accruing

to the alien is that it precludes state regulation that may well be

more severe and burdensome. For example, in Hines v.

Davidowitz, 1218 the Court voided a Pennsylvania law requiring the

annual registration and fingerprinting of aliens but going beyond

the subsequently-enacted federal law to require acquisition of an

alien identification card that had to be carried at all times and to

be exhibited to any police officer upon demand and to other licensing officers upon applications for such things as drivers’ licenses.

The Court did not squarely hold the State incapable of having such

a law in the absence of federal law but appeared to lean in that
280 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 4—Aliens

1219 Id., 68. But see De Canas v. Bica, 424 U.S. 351 (1976), in which the Court

upheld a state law prohibiting an employer from hiring aliens not entitled to lawful

residence in the United States. The Court wrote that States may enact legislation

touching upon aliens coexistent with federal laws, under regular preemption standards, unless the nature of the regulated subject matter precludes the conclusion or

unless Congress has unmistakably ordained the impermissibility of state law. 1220Graham 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). 1221 8 U.S.C. §§ 1182(a)(8), 1182(a)(15), 1251(a)(8). 1222See 42 U.S.C. § 1981, applied in Takahashi v. Fish and Game Commission,

334 U.S. 410, 419 n. 7 (1948). 1223See 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.’’ 1224Kimm v. Rosenberg, 363 U.S. 405 (1960). 1225 Abel v. United States, 362 U.S. 217, 229 (1960). 1226Marcello v. Bonds, 349 U.S. 302 (1955). 1227 Carlson v. Landon, 342 U.S. 524, 540 (1952). 1228Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). 1229 8 U.S.C. § 1252(b)(2). 1230 8 U.S.C. § 1252(b)(1). 1231 8 U.S.C. § 1252(b)(3).

direction. 1219 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. 1220 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. 1221 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. 1222

Deportation

Unlike the exclusion proceedings, 1223 deportation proceedings

afford the alien a number of constitutional rights: a right against

self-incrimination, 1224 protection against unreasonable searches

and seizures, 1225 guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment, 1226 a right to bail, 1227

a right to procedural due process, 1228 a right to counsel, 1229 a right

to notice of charges and hearing, 1230 as well as a right to cross-examine. 1231

Notwithstanding these guarantees, the Supreme Court has

upheld a number of statutory deportation measures as not uncon-
ART. I—LEGISLATIVE DEPARTMENT 281

Sec. 8—Powers of Congress Cl. 4—Bankruptcy

1232 Carlson v. Landon, 342 U.S. 524 (1952). 1233 54 Stat. 670. For existing statutory provisions as to deportation, see 8

U.S.C. § 1251 et seq. 1234 Carlson v. Landon, 342 U.S. 524 (1952). 1235 8 U.S.C. § 1252(e). 1236 United States v. Spector, 343 U.S. 169 (1952). 1237 Adams v. Storey, 1 Fed. Cas. 141, 142 (No. 66) (C.C.D.N.Y. 1817). 1238 2 Stat. 19 (1800). 1239 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1113. 1240 186 U.S. 181 (1902).

stitutional. 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. 1232

Nor was it unconstitutional to deport under the Alien Registration

Act of 1940 1233 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 treminate its hospitality ad libitum. 1234 And a statutory

provision 1235 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.’’ 1236

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.’’ 1237 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. 1238 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. 1239

This interpretation has been ratified by the Supreme Court. In

Hanover National Bank v. Moyses, 1240 it held valid the Bankruptcy

Act of 1898, which provided that persons other than traders might
282 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 4—Bankruptcy

1241 Continental Bank v. Rock Island Ry., 294 U.S. 648, 670 (1935). 1242 United States v. Bekins, 304 U.S. 27 (1938), distinguishing Ashton v. Cameron County Dist., 298 U.S. 513 (1936). 1243Perry v. Commerce Loan Co., 383 U.S. 392 (1966). 1244 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). 1245 Continental Bank v. Rock Island Ry., 294 U.S. 648 (1935). 1246Wright v. Vinton Branch, 300 U.S. 440 (1937); Adair v. Bank of America

Assn., 303 U.S. 350 (1938). 1247Wright v. Union Central Ins. Co., 304 U.S. 502 (1938).

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, 1241 including even municipal corporations 1242 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. 1243

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, 1244 as were later acts, which provided for the reorganization

of corporations that are insolvent or unable to meet their debts as

they mature, 1245 and for the composition and extension of debts in

proceedings for the relief of individual farmer debtors. 1246

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. 1247 Moreover, the Court expanded the bankruptcy court’s
ART. I—LEGISLATIVE DEPARTMENT 283

Sec. 8—Powers of Congress Cl. 4—Bankruptcy

1248Katchen v. Landy, 382 U.S. 323 (1966). 1249 Bank of Marin v. England, 385 U.S. 99, 103 (1966). 1250 382 U.S. 266 (1965). Cf. United States v. Vermont, 337 U.S. 351 (1964). 1251 Act of July 5, 1966, 80 Stat. 269, 11 U.S.C. § 501, repealed. 1252 382 U.S., 271–272. 1253 Reading Co. v. Brown, 391 U.S. 471 (1968). 1254 Joint Industrial Board of the Election Industries v. United States, 391 U.S.

224 (1968). 1255 Nicholas v. United States, 384 U.S. 678 (1966). 1256 294 U.S. 648 (1935). 1257 Id., 671. 1258 11 U.S.C. § 344. 1259Louisville Bank v. Radford, 295 U.S. 555, 589, 602 (1935).

power over the property of the estate by affording the trustee affirmative relief on counterclaim against a creditor filing a claim

against the estate. 1248

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. 1249 United States v. Speers, 1250 codified by an

amendment to the Bankruptcy Act, 1251 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. 1252 The

Supreme Court has held, in other cases dealing with the priority

of various creditors’ claims, that claims arising from the tort of the

receiver is an ‘‘actual and necessary’’ cost of administration, 1253

that benefits under a nonparticipating annuity plan are not wages

and are therefore not given priority, 1254 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. 1255 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., 1256 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.’’ 1257

Constitutional Limitations on the Bankruptcy Power

In the exercise of its bankruptcy powers, Congress must not

transgress the Fifth and Tenth Amendments. The Bankruptcy Act

provides that oral testimony cannot be used in violation of the

bankrupt’s right against self-incrimination. 1258 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; 1259 this principle,

however, is subject to the Supreme Court’s finding that a bank-
284 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 4—Bankruptcy

1260Katchen v. Landy, 382 U.S. 323, 327–340 (1966). 1261 Chicago Title and Trust Co. v. Wilcox Bldg. Corp., 302 U.S. 120 (1937). 1262 In re Klein, 1 How. (42 U.S.) 277 (1843); Hanover National Bank v. Moyses,

186 U.S. 181 (1902). 1263 Ashton v. Cameron County Dist., 298 U.S. 513 (1936). See also United

States v. Bekii 304 U.S. 27 (1938). 1264 United Slates v. Bekins, 304 U.S. 27 (1938). 1265Stellwagon v. Clum, 245 U.S. 605 (1918); Hanover National Bank v.

Moyses, 186 U.S. 181, 190 (1902). 1266 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50

(1982). And see Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) (Seventh

Amendment right to jury trial in bankruptcy cases).

ruptcy 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. 1260

Since Congress may not supersede the power of a State to determine how a corporation shall be formed, supervised, and dissolved, a corporation, which has been dissolved by a decree of a

state court, may not file a petition for reorganization under the

Bankruptcy Act. 1261 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. 1262 Although it may not subject the fiscal affairs of a political subdivision

of a State to the control of a federal bankruptcy court, 1263 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. 1264 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; 1265 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. 1266

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
ART. I—LEGISLATIVE DEPARTMENT 285

Sec. 8—Powers of Congress Cl. 4—Bankruptcy

1267 Hanover National Bank v. Moyses, 186 U.S. 181, 184 (1902). 1268Sturges v. Crowninshield, 4 Wheat. (17 U.S.) 122, 199 (1819); Ogden v.

Saunders, 12 Wheat. (25 U.S.) 213, 368 (1827). 1269Tua v. Carriere, 117 U.S. 201 (1886); Butler v. Goreley, 146 U.S. 303, 314

(1892). 1270Sturges v. Crowninshield, 4 Wheat. (17 U.S.) 122 (1819). 1271Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 368 (1827); Denny v. Bennett,

128 U.S. 489, 498 (1888); Brown v. Smart, 145 U.S. 454 (1892). 1272 In re Watts and Sachs, 190 U.S. 1, 27 (1903); International Shoe Co. v.

Pinkus, 278 U.S. 261, 264 (1929). 1273 International Shoe Co. v. Pinkus, 278 U.S. 261, 265 (1929). 1274Kalb v. Feurerstein, 308 U.S. 433 (1940). 1275Ohio 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 Dept. 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).

two years later; a third was enacted in 1867 and repealed in

1878. 1267 Thus, during the first eighty-nine years under the Constitution, a national bankruptcy law was in existence only sixteen

years altogether. Consequently, the most important issue of interpretation that arose during that period concerned the effect of the

clause on state law.

The Supreme Court ruled at an early date that in the absence

of congressional action the States may enact insolvency laws, since

it is not the mere existence of the power but rather its exercise

that is incompatible with the exercise of the same power by the

States. 1268 Later cases settled further that the enactment of a national bankruptcy law does not invalidate state laws in conflict

therewith but serves only to relegate them to a state of suspended

animation with the result that upon repeal of the national statute

they again come into operation without re-enactment. 1269

A State is, of course, without power to enforce any law governing bankruptcies, which impairs the obligation of contracts, 1270 extends to persons or property outside its jurisdiction, 1271 or conflicts

with the national bankruptcy laws. 1272 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, 1273 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. 1274 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. 1275 A
286 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 5 and 6—Fiscal and Monetary Powers

1276Stellwagen v. Clum, 245 U.S. 605, 615 (1918). 1277 Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department of Public Safety,

369 U.S. 153 (1962); Perez v. Campbell, 402 U.S. 637 (1971). 1278 Reitz v. Mealey, 314 U.S. 33, 37 (1941); Kesler v. Department of Public

Safety, 369 U.S. 153, 169–174 (1962). 1279Perez v. Campbell, 402 U.S. 637, 644–648, 651–654 (1971). The dissenters,

Justice Blackmun for himself and Chief Justice Burger and Justices Harlan and

Stewart, argued, in line with the Reitz and Kesler majorities, that the provision at

issue was merely an attempt to assure driving competence and care on the part of

its citizens and had only tangential effect upon bankruptcy. 1280 New York v. Irving Trust Co., 288 U.S. 329 (1933).

state law governing fraudulent transfers was found to be compatible with the federal law. 1276

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. 1277 The state statutes were all similar enactments

of the Uniform Motor Vehicle Safety Responsibility Act, which authorizes the suspension of the license of any driver who fails to satisfy a judgment against himself growing out of a traffic accident;

a section of the law specifically provides that a discharge in bankruptcy will not relieve the debtor of the obligation to pay and the

consequence of license suspension for failure to pay. In the first two

decisions, the Court majorities decided that the object of the state

law was not to see that such judgments were paid but was rather

a device to protect the public against irresponsible driving. 1278 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. 1279

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. 1280

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.
ART. I—LEGISLATIVE DEPARTMENT 287

Sec. 8—Powers of Congress Cls. 5 and 6—Fiscal and Monetary Powers

1281McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819). 1282 Veazie Bank v. Fenno, 8 Wall. (75 U.S.) 533 (1869). 1283 Id., 548. 1284 National Bank v. United States, 101 U.S. 1 (1880). 1285 Nortz v. United States, 249 U.S. 317 (1935). 1286Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 457, 549 (1871); Legal

Tender Cases (Juilliard v. Greenman), 110 U.S. 421, 449 (1884). 1287Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 457 (1871). 1288 Norman v. Baltimore & O.R. Co., 294 U.S. 240 (1935). 1289Ling Su Fan v. United States, 218 U.S. 302 (1910). 1290 United States v. Marigold, 9 How. (50 U.S.), 560, 568 (1850).

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, 1281 and it may restrain the circulation of notes not issued under its own authority. 1282 To this end it may impose a prohibitive tax upon the circulation of the notes of state banks 1283 or of municipal corporations. 1284 It may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold. A

plaintiff who sought payment for the gold coin and certificates thus

surrendered in an amount measured by the higher market value of

gold was denied recovery on the ground that he had not proved

that he would suffer any actual loss by being compelled to accept

an equivalent amount of other currency. 1285 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,’’ 1286 the Supreme

Court sustained the power of Congress to make Treasury notes

legal tender in satisfaction of antecedent debts, 1287 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. 1288 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. 1289

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. 1290 At the same time, the Supreme Court

has rebuffed attempts to read into this provision a limitation upon
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1291Fox v. Ohio, 5 How. (46 U.S.) 410 (1847). 1292 United States v. Marigold, 9 How. (50 U.S.) 560, 568 (1850). 1293 Ibid. 1294 Baender v. Barnett, 255 U.S. 224 (1921). 1295Legal Tender Cases (Knox v. Lee), 122 Wall. (79 U.S.) 457, 536 (1871). 1296McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 407 (1819); Osborn v. United States Bank, 9 Wheat. (22 U.S.) 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). 1297Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 457, 540–547 (1871). 1298Perry v. United States, 294 U.S. 330, 353 (1935).

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. 1291 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,’’ 1292 it has

sustained federal statutes penalizing the importation or circulation

of counterfeit coin, 1293 or the willing and conscious possession of

dies in the likeness of those used for making coins of the United

States. 1294 In short, the above clause is entirely superfluous. Congress would have had the power it purports to confer under the

necessary and proper clause; and the same is the case with the

other enumerated crimes it is authorized to punish. The enumeration was unnecessary and is not exclusive. 1295

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, 1296 or making its treasury

notes legal tender in the payment of antecedent debts. 1297 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. 1298 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 re-
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1299 Id., 361. 1300Free v. Bland, 369 U.S. 663 (1962). 1301 United States v. Railroad Bridge Co., 27 Fed. Cas. 686 (No. 16,114)

(C.C.N.D. Ill. 1855). 1302Searight v. Stokes, 3 How. (44 U.S.) 151, 166 (1845). 1303 91 U.S. 367 (1876).

pudiated 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.’’ 1299 However, with a view to inducing purchase of savings bonds, the sale of which is essential to successful management

of the national debt, Congress is competent to authorize issuance

of regulations creating a right of survivorship in such bonds registered in co-ownership form, and such regulations preempt provisions of state law prohibiting married couples from utilizing the

survivorship privilege whenever bonds are paid out of community

property. 1300

Clause 7. The Congress shall have Power * * * To establish

Post Offices and post roads.

POSTAL POWER

‘‘Establish’’

The great question raised in the early days with reference to

the postal clause concerned the meaning to be given to the word

‘‘establish’’—did it confer upon Congress the power to construct

post offices and post roads, or only the power to designate from existing places and routes those that should serve as post offices and

post roads? As late as 1855, Justice McLean stated that this power

‘‘has generally been considered as exhausted in the designation of

roads on which the mails are to be transported,’’ and concluded

that neither under the commerce power nor the power to establish

post roads could Congress construct a bridge over a navigable

water. 1301 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. 1302 The debate on the question was terminated in 1876 by the decision in Kohl v. United States, 1303 sustaining a proceeding by the United States to appropriate a parcel of

land in Cincinnati as a site for a post office and courthouse.
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1304 Ex parte Jackson, 96 U.S. 727, 732 (1878). See United States Postal Service

v. Council of Greenburgh Civic Assns., 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. 1305Searight v. Stokes, 3 How. (44 U.S.) 151, 169 (1845). 1306 In re Debs, 158 U.S. 564, 599 (1895). 1307 Cong. Globe, 24th Cong., 1st Sess., 3, 10, 298 (1835). 1308 Bowman v. Chicago & Nw. Railway Co., 125 U.S. 465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890). 1309 96 U.S. 727 (1878).

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. 1304 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. 1305 Half a century later

it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any wide-spread disorder interfering with interstate commerce and the transmission of

the mails. 1306

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. 1307 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. 1308

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, 1309 the
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1310 Id., 732. 1311Public Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson

v. Read Magazine, 333 U.S. 178 (1948). 1312 194 U.S., 506. 1313Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913). 1314 Id., 316. 1315 United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407

(1921). See also Hannegan v. Esquire, 327 U.S. 146 (1946), denying the Post Office

the right to exclude Esquire Magazine from the mails on grounds of the poor taste

and vulgarity of its contents. 1316 381 U.S. 301 (1965). 1317 Id., 305, quoting Justice Holmes in United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 437 (1921) (dissenting opinion): ‘‘The United

States may give up the Post Office when it sees fit, but while it carries it on the

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.’’ 1310 The leading fraud order case, decided in 1904, held to

the same effect. 1311 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.’’ 1312

Later cases first qualified these sweeping assertions and then

overturned them, holding Government operation of the mails to be

subject to constitutional limitations. In upholding requirements

that publishers of newspapers and periodicals seeking second-class

mailing privileges file complete information regarding ownership,

indebtedness, and circulation and that all paid advertisements in

the publications be marked as such, the Court emphasized that

these provisions were reasonably designed to safeguard the secondclass privilege from exploitation by mere advertising publications. 1313 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 . . .’’ 1314 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. 1315

A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General, 1316 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. 1317 The statute violated the First Amendment
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Sec. 8—Powers of Congress Cl. 7—Postal Power

use of the mails is almost as much a part of free speech as the right to use our

tongues. . . .’’ And see Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting same language). But for a different perspective on the meaning and application of the

Holmes language, see United States Postal Service v. Council of Greenburgh Civic

Assns., 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., 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). 1318Lamont v. Postmaster General, 381 U.S. 301, 306–307 (1965). And see id.,

308 (concurring opinion). Note that this was the first congressional statute ever

voided as in conflict with the First Amendment. 1319 Rowan v. Post Office Department, 397 U.S. 728 (1970). 1320 Blount v. Rizzi, 400 U.S. 410 (1971). 1321 49 Stat. 803, 812, 813, 15 U.S.C. §§ 79d, 79e. 1322 Electric Bond Co. v. SEC, 303 U.S. 419 (1938). 1323 Id., 442.

because it inhibited the right of persons to receive any information

which they wished to receive. 1318

On the other hand, a statute authorizing persons to place their

names on a list in order to reject receipt of obscene or sexually suggestive materials is constitutional, because no sender has a right

to foist his material on any unwilling receiver. 1319 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. 1320

Exclusive Power as an Adjunct to Other Powers

In the cases just reviewed, it was attempted to close the mails

to communication which were deemed to be harmful. A much

broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935. 1321 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. While it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid, 1322 it declared that ‘‘Congress may not

exercise its control over the mails to enforce a requirement which

lies outside its constitutional province. . . .’’ 1323

State Regulations Affecting the Mails

In determining the extent to which state laws may impinge

upon persons or corporations whose services are utilized by Congress in executing its postal powers, the task of the Supreme Court
ART. I—LEGISLATIVE DEPARTMENT 293

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

1324Pensacola Tel. Co. v. Western Union Telegraph Co., 96 U.S. 1 (1878). 1325 Illinois Central Railroad v. Illinois, 163 U.S. 142 (1896). 1326Gladson v. Minnesota, 166 U.S. 427 (1897). 1327Price v. Pennsylvania R. Co., 113 U.S. 218 (1895); Martin v. Pittsburgh &

Lake Erie R.R., 203 U.S. 284 (1906). 1328 Railway Mail Assn. v. Corsi, 326 U.S. 88 (1945). 1329 United States v. Kirby, 7 Wall. (74 U.S.) 482 (1869). 1330 Johnson v. Maryland, 254 U.S. 51 (1920).

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. 1324

An Illinois statute, which, as construed by the state courts, required an interstate mail train to make a detour of seven miles in

order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this

clause. 1325 But a Minnesota statute requiring intrastate trains to

stop at county seats was found to be unobjectionable. 1326

Local laws classifying postal workers with railroad employees

for the purpose of determining a railroad’s liability for personal injuries, 1327 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, 1328 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, 1329 but it

cannot punish a person for operating a mail truck over its highways without procuring a driver’s license from state authorities. 1330

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.
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1331Pennock v. Dialogue, 2 Pet. (27 U.S.) 1, 17, 18 (1829). 1332Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 656, 658 (1834). 1333 Cf. Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). 1334Kendall v. Winsor, 21 How. (62 U.S.) 322, 328 (1859); A. & P. Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950). 1335Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 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., 345. First clearly articulated in

The Trade Mark Cases, 100 U.S. 82, 94 (1879), and Burrow-Giles Lithographic Co.

v. Saroney, 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. 1336 Evans v. Jordan, 9 Cr. (13 U.S.) 199 (1815); Bloomer v. McQuewan, 14 How.

(55 U.S.) 539, 548 (1852); Bloomer v. Millinger, 1 Wall. (68 U.S.) 340, 350 (1864);

Eunson v. Dodge, 18 Wall. (85 U.S.) 414, 416 (1873). 1337 Brown v. Duchesne, 19 How. (60 U.S.) 183, 195 (1857). It is, however, the

ultimate objective of many nations, including the United States, to develop a system

of patent issuance and enforcement which transcends national boundaries; it has

been recommended, therefore, that United States policy should be to harmonize its

patent system with that of foreign countries so long as such measures do not diminCOPYRIGHTS AND PATENTS

Scope of the Power

This clause is the foundation upon which the national patent

and copyright laws rest, although it uses neither of those terms. So

far as patents are concerned, modern legislation harks back to the

Statute of Monopolies of 1624, whereby Parliament endowed inventors with the sole right to their inventions for fourteen years. 1331

Copyright law, in turn, traces back to the English Statute of 1710,

which secured to authors of books the sole right of publishing them

for designated periods. 1332 Congress was not vested by this clause,

however, with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges. 1333 Its power is limited with regard both to subject matter and to the purpose and duration of the rights granted. Only the writings and discoveries of

authors and inventors may be protected, and then only to the end

of promoting science and the useful arts. 1334 The concept of originality is central to copyright, and it is a constitutional requirement

Congress may not exceed. 1335 While Congress may grant exclusive

rights only for a limited period, it may extend the term upon the

expiration of the period originally specified, and in so doing may

protect the rights of purchasers and assignees. 1336 The copyright

and patent laws do not have, of their own force, any extraterritorial

operation. 1337
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ish the quality of the United States patent standards. President’s Commission on

the Patent System, To Promote the Progress of Useful Arts, Report to the Senate

Judiciary Committee, S. Doc. No. 5, 90th Cong., 1st sess. (1967), recommendation

XXXV. Effectuation of this goal was begun with the United States agreement to the

Berne Convention (the Convention for the Protection of Literary and Artistic Works,

Sept. 9, 1886), and Congress’ conditional implementation of the Convention through

legislation. The Berne Convention Implementation Act of 1988, P. L. 100–568, 102

Stat. 2853, 17 U.S.C. § 101 and notes. 1338Seymour v. Osborne, 11 Wall. (78 U.S.) 516, 549 (1871). Cf. Collar Company

v. Van Dusen, 23 Wall. (90 U.S.) 530, 563 (1875); Reckendorfer v. Faber, 92 U.S.

347, 356 (1876). 1339Smith v. Nichols, 21 Wall. (89 U.S.) 112, 118 (1875). 1340 Rubber-Tip Pencil Company v. Howard, 20 Wall. (87 U.S.) 498, 507 (1874);

Clark Thread Co. v. Willimantic Linen Co., 140 U.S. 481, 489 (1891). 1341Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948). Cf. Dow Co. v.

Halliburton Co., 324 U.S. 320 (1945); Cuno Corp. v. Automatic Devices Corp., 314

U.S. 84, 89 (1941). 1342Sinclair Co. v. Interchemical Corp., 325 U.S. 327, 330 (1945); Marconi Wireless Co. v. United States, 320 U.S. 1 (1943). 1343Keystone Manufacturing Co. v. Adams, 151 U.S. 139 (1894); Diamond Rubber Co. v. Consol. Tire Co., 220 U.S. 428 (1911). 1344 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., 154–

155. He then quotes the following from an opinion of Justice Bradley’s given 70

years ago:

‘‘It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously

occur to any skilled mechanic or operator in the ordinary progress of manufacturers.

Such an indiscriminate creation of exclusive privileges tends rather to obstruct than

to stimulate invention. It creates a class of speculative schemers who make it their

business to watch the advancing wave of improvement, and gather its foam in the

Patentable Discoveries

The protection traditionally afforded by acts of Congress under

this clause has been limited to new and useful inventions, 1338 and

while a patentable invention is a mental achievement, 1339 for an

idea to be patentable it must have first taken physical form. 1340

Despite the fact that the Constitution uses the term ‘‘discovery’’

rather than ‘‘invention,’’ a patent may not be issued for the discovery of a hitherto unknown phenomenon of nature. ‘‘If there is to be

invention from such a discovery, it must come from the application

of the law of nature to a new and useful end.’’ 1341 As for the mental processes which have been traditionally required, the Court has

held in the past that an invention must display ‘‘more ingenuity

. . . than the work of a mechanic skilled in the art;’’ 1342 and while

combination patents have been at times sustained, 1343 the accumulation of old devices is patentable ‘‘only when the whole in some

way exceeds the sum of its parts.’’ 1344 Though ‘‘inventive genius’’
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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., 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., 156–158. 1345 ‘‘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). 1346 Act of February 21, 1793, c. 11, 1 Stat. 318. See Graham v. John Deere Co.,

383 U.S. 1, 3–4, 10 (1966). 1347 35 U.S.C. § 103. 1348 E.g., A. & P. Tea Co. v. Supermarket Equip. 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). 1349 11 How. (52 U.S.) 248 (1850). 1350 383 U.S. 1 (1966). 1351 Id., 6(first emphasis added, second emphasis by Court). For a thorough discussion, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146–152

(1989).

and slightly varying language have been appearing in judicial decisions for almost a century, 1345 ‘‘novelty’’ and ‘‘utility’’ has been the

primary statutory test since the Patent Act of 1793. 1346 With Congress’ enactment of the Patent Act of 1952, however, § 103 of the

Act required that an innovation be of a ‘‘nonobvious’’ nature, that

is, it must not be an improvement that would be obvious to a person having ordinary skill in the pertinent art. 1347 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, 1348 but the Court itself interpreted the provision as codifying its earlier holding in Hotchkiss v.

Greenwood, 1349 in Graham v. John Deere Co. 1350 The Court in this

case said: ‘‘Innovation, advancement, and things which add to the

sum of useful knowledge are inherent requisites in a patent system

which by constitutional command must ‘promote the Progress of

. . . useful Arts.’ This is the standard expressed in the Constitution

and it may not be ignored.’’ 1351 Congressional requirements on patentability, then, are conditions and tests that must fall within the

constitutional standard. Underlying the constitutional tests and
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1352 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., 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.’’ Ibid. 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.’’ 1353 A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950); Mahn v. Harwood, 112 U.S. 354, 358 (1884). 1354 Evans v. Eaton, 3 Wheat. (16 U.S.) 454, 512 (1818). 1355 United States v. Duell, 172 U.S. 576, 586–589 (1899). See also Butterworth

v. United States ex rel. Hoe, 112 U.S. 50 (1884). 1356Graham v. John Deere Co., 383 U.S. 1, 18 (1966). 1357 In Jennings v. Brenner, 255 F. Supp. 410, 412 (D.D.C. 1966), District Judge

Holtzoff suggested that a system of remand be adopted.

congressional conditions for patentability is the balancing of two interests—the interest of the public in being protected against monopolies and in having ready access to and use of new items versus

the interest of the country, as a whole, in encouraging invention by

rewarding creative persons for their innovations. By declaring a

constitutional standard of patentability, however, the Court, rather

than Congress, will be doing the ultimate weighing. As for the clarity of the patentability standard, the three-fold test of utility, novelty and advancement seems to have been made less clear by the

Supreme Court’s recent rejuvenation of ‘‘invention’’ as a standard

of patentability. 1352

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. 1353

Congress may authorize the issuance of a patent for an invention

by a special, as well as by general, law, provided the question as

to whether the patentees device is in truth an invention is left open

to investigation under the general law. 1354 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. 1355 The primary responsibility, however, for weeding out unpatentable devices rests in the Patent Office. 1356 The

present system of ‘‘de novo’’ hearings before the Court of Appeals

allows the applicant to present new evidence which the Patent Office has not heard, 1357 thus making somewhat amorphous the

central responsibility.
298 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

1358Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 660 (1834); Holmes v. Hurst, 174

U.S. 82 (1899). The doctrine of common-law copyright was long statutorily preserved

for unpublished works, but the 1976 revision of the federal copyright law abrogated

the distinction between published and unpublished works, substituting a single federal system for that existing since the first copyright law in 1790. 17 U.S.C. § 301. 1359Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 662 (1834); Evans v. Jordan, 9 Cr.

(13 U.S.) 199 (1815). A major limitation of copyright law is that ‘‘fair use’’ of a copyrighted work is not an infringement. Fair use can involve such things as citation

for the use of criticism and reproduction for classroom purposes, but it may not supersede the use of the original work. See Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) (an unauthorized 300 to 400 word excerpt, published

as a news ‘‘scoop’’ of the authorized prepublication excerpt of former President

Ford’s memoirs and substantially affecting the potential market for the authorized

version, was not a fair use within the meaning of § 107 of the Copyright Act. 17

U.S.C. § 107) 1360 464 U.S. 417, 431 (1984).

Nature and Scope of the Right Secured

The leading case bearing on the nature of the rights which

Congress is authorized to secure is that of Wheaton v. Peters. Wheaton charged Peters with having infringed his copyright on the

twelve volumes of ‘‘Wheaton’s Reports,’’ wherein are reported the

decisions of the United States Supreme Court for the years from

1816 to 1827 inclusive. Peters’ defense turned on the proposition

that inasmuch as Wheaton had not complied with all of the requirements of the act of Congress, his alleged copyright was void.

Wheaton, while denying this assertion of fact, further contended

that the statute was only intended to secure him in his pre-existent

rights at common law. These at least, he claimed, the Court should

protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of

the common law that protected an author in the sole right to continue to publish a work once published. It denied, in the second

place, that there is any principle of law, common or otherwise,

which pervades the Union except such as are embodied in the Constitution and the acts of Congress. Nor, in the third place, it held,

did the word ‘‘securing’’ in the Constitution recognize the alleged

common law principle Wheaton invoked. The exclusive right Congress is authorized to secure to authors and inventors owes its existence solely to the acts of Congress securing it, 1358 from which

it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress, in its unhampered consultation of the public interest, sees fit to impose. 1359

The Court’s ‘‘reluctance to expand [copyright] protection without explicit legislative guidance’’ controlled its decision in Sony

Corp. v. Universal City Studios, 1360 in which it held that the manufacture and sale of video tape (or cassette) recorders for home use

do not constitute ‘‘contributory’’ infringement of the copyright in
ART. I—LEGISLATIVE DEPARTMENT 299

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

1361Kalem 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). 1362 Baker v. Selden, 101 U.S. 99, 105 (1880). 1363Stevens v. Gladding, 17 How. (58 U.S.) 447 (1855). 1364 Ager v. Murray, 105 U.S. 126 (1882). 1365 James v. Campbell, 104 U.S. 356, 358 (1882). See also United States v.

Burns 12 Wall. (79 U.S.) 246, 252 (1871); Cammeyer v. Newton, 94 U.S. 225, 234

(1877); Hollister v. Benedict Manufacturing Co., 113 U.S. 59, 67 (1885); United

States v. Palmer, 128 U.S. 262, 271 (1888); Belknap v. Schild, 161 U.S. 10, 16

(1896). 1366McClurg v. Kingsland, 1 How. (42 U.S.) 202, 206 (1843). 1367 Bloomer v. McQuewan, 14 How. (55 U.S.) 539, 553 (1852).

television programs. Copyright protection, the Court reiterated, is

‘‘wholly statutory,’’ and courts should be ‘‘circumspect’’ in extending

protections to new technology. The Court refused to hold that contributory infringement could occur simply through the supplying of

the devices with which someone else could infringe, especially in

view of the fact that VCRs are capable of substantial noninfringing

‘‘fair use,’’ e.g., time shifting of television viewing.

In giving to authors the exclusive right to dramatize any of

their works, Congress did not exceed its powers under this clause.

Even as applied to pantomine dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which

they were clothed. 1361 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. 1362 Since copyright is a species of property distinct from the ownership of the equipment used in making copies

of the matter copyrighted, the sale of a copperplate under execution

did not pass any right to print and publish the map which the copperplate was designed to produce. 1363 A patent right may, however, be subjected, by bill in equity, to payment of a judgment debt

of the patentee. 1364

Power of Congress Over Patent Rights

Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the Government

without just compensation. 1365 Congress may, however, modify

rights under an existing patent, provided vested property rights are

not thereby impaired, 1366 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. 1367 Furthermore, the rights
300 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

1368See 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).

1369Patterson v. Kentucky, 97 U.S. 501 (1879).

1370 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).

1371Fox Film Corp. v. Doyal, 286 U.S. 123 (1932), overruling Long v. Rockwood,

277 U.S. 142 (1928).

the present statutes confer are subject to the antitrust laws,

though it can be hardly said that the cases in which the Court has

endeavored to draw the line between the rights claimable by patentees and the kind of monopolistic privileges which are forbidden

by those acts exhibit entire consistency in their holdings. 1368

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. 1369 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. 1370 Royalties received from patents or copyrights

are subject to a nondiscriminatory state income tax, a holding to

the contrary being overruled. 1371

State power to protect things not patented or copyrighted

under federal law has been buffeted under changing Court doctrinal views. In two major cases, the Court held that a State could

not utilize unfair competition laws to prevent or punish the copying

of products not entitled to a patent. Emphasizing the necessity for

a uniform national policy and adverting to the monopolistic effects

of the state protection, the Court inferred that because Congress

had not extended the patent laws to the material at issue, federal

policy was to promote free access when the materials were thus in
ART. I—LEGISLATIVE DEPARTMENT 301

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

1372Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964); Compco Corp. v.

Day-Brite Lighting, Inc., 376 U.S. 234 (1964). 1373 412 U.S. 546 (1973). Informing the decisions were different judicial attitudes with respect to the preclusion of the States from acting in fields covered by

the patent and copyright clauses, whether Congress had or had not acted. The latter

case recognized permissible state interests, id., 552–560, whereas the former intimated that congressional power was exclusive. Sears, Roebuck & Co. v. Stiffel Co.,

376 U.S. 225, 228–231 (1964). 1374 In the 1976 revision of the copyright law, Congress broadly preempted, with

narrow exceptions, all state laws bearing on material subject to copyright. 17 U.S.C.

§ 301. The legislative history makes clear Congress’ intention to overturn Goldstein

and ‘‘to preempt and abolish any rights under the common law or statutes of a state

that are equivalent to copyright and that extend to works coming within the scope

of the federal copyright law.’’ H. Rept. No. 94–1476, 94th Congress, 2d sess. (1976),

130. The statute preserves state tape piracy and similar laws as to sound recordings

fixed before February 15, 1972, until February 15, 2047. 1375Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). See also Aronson v.

Quick Point Pencil Co., 440 U.S. 257 (1979). 1376 489 U.S. 141 (1989). 1377 Id., 156.

the public domain. 1372 But, in Goldstein v. California, 1373 the

Court distinguished the two prior cases and held that the determination whether a state ‘‘tape piracy’’ statute conflicted with the

federal copyright statute depended upon the existence of a specific

congressional intent to forbid state protection of the ‘‘writing’’ there

involved. Its consideration of the statute and of its legislative history convinced the Court that Congress in protecting certain

‘‘writings’’ and in not protecting others bespoke no intention that

federally unprotected materials should enjoy no state protection,

only that Congress ‘‘has left the area unattended.’’ 1374 Similar

analysis was used to sustain the application of a state trade secret

law to protect a chemical process, that was patentable but not patented, from utilization by a commercial rival, which had obtained

the process from former employees of the company, all of whom

had signed agreements not to reveal the process. The Court determined that protection of the process by state law was not incompatible with the federal patent policy of encouraging invention and

public use of patented inventions, inasmuch as the trade secret law

serves other interests not similarly served by the patent law and

where it protects matter clearly patentable it is not likely to deter

applications for patents. 1375

Returning to the Sears and Compco emphasis, the Court

unanimously, in Bonito Boats v. ThunderCraft Boats, 1376

reasserted that ‘‘efficient operation of the federal patent system depends upon substantially free trade in publicly known, unpatented

design and utilitarian conceptions.’’ 1377 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
302 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 9 and 10—Piracies and Felonies

1378 Id., 166. As examples of state regulation that might be permissible, the

Court referred to unfair competition, trademark, trade dress, and trade secrets laws.

Perhaps by way of distinguishing Sears and Compco, both of which invalidated use

of unfair competition laws, the Court suggested that prevention of ‘‘consumer confusion’’ is a permissible state goal that can be served in some instances by application

of such laws. Id., 154. 1379 Id., 156(emphasis supplied). 1380 Id., 158. 1381 100 U.S. 82 (1879). 1382 Id., 94. 1383 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). 1384 Bleisten v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).

unpatented designs if those regulations are ‘‘necessary to promote

goals outside the contemplation of the federal patent scheme.’’ 1378

What States are forbidden to do is to ‘‘offer patent-like protection

to intellectual creations which would otherwise remain unprotected

as a matter of federal law.’’ 1379 A state law ‘‘aimed directly at preventing the exploitation of the [unpatented] design’’ is invalid as

impinging on an area of pervasive federal regulation. 1380

Trade-Marks and Advertisements

In the famous Trade-Mark Cases, 1381 decided in 1879, the Supreme Court held void acts of Congress, which, in apparent reliance upon this clause, extended the protection of the law to trademarks registered in the Patent Office. ‘‘The ordinary trade mark,’’

said Justice Miller for the Court, ‘‘has no necessary relation to invention or discovery;’’ nor is it to be classified ‘‘under the head of

writings of authors.’’ It does not ‘‘depend upon novelty, invention,

discovery, or any work of the brain.’’ 1382 Not many years later, the

Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyrighted, 1383 while still more recently a circus poster was held to be entitled to the same protection. In answer to the objection of the circuit court that a lithograph which ‘‘has no other use than that of a mere advertisement

. . . (would not be within) the meaning of the Constitution,’’ Justice

Holmes summoned forth the shades of Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support of the proposition

that it is not for the courts to attempt to judge the worth of pictorial illustrations outside the narrowest and most obvious limits. 1384

Clause 9. The Congress shall have Power * * * To constitute Tribunals inferior to the supreme Court; (see Article

III).
ART. I—LEGISLATIVE DEPARTMENT 303

Sec. 8—Powers of Congress Cls. 9 and 10—Piracies and Felonies

1385 1 J. KENT, COMMENTARIES ON AMERICAN LAW (New York: 1826), 1. 1386 19 JOURNALS OF THE CONTINENTAL CONGRESS, 315, 361 (1912); 20 id. 762;

21 id. 1136–1137, 1158. 1387 Article IX. 1388 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (New

Haven: Rev. ed. 1937), 168, 182. 1389 Id., 316.

Clause 10. The Congress shall have Power * * * To define

and punish Piracies and Felonies committed on the high Seas,

and Offences against the Law of Nations.

PIRACIES, FELONIES, AND OFFENSES AGAINST THE

LAW OF NATIONS

Origin of the Clause

‘‘When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and

custom had established among civilized nations of Europe, as their

public law. . . . The faithful observance of this law is essential to

national character. . . .’’ 1385 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. 1386 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. 1387 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.’’ 1388 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. 1389

Definition of Offenses

The fact that the Constitutional Convention considered it necessary to give Congress authority to define offenses against the law
304 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 9 and 10—Piracies and Felonies

1390 United States v. Smith, 5 Wheat. (18 U.S.) 153, 160, 162 (1820). See also

The Marianna Flora, 11 Wheat. (24 U.S.) 1, 40–41 (1826); United States v. Brig

Malek Abhel, 2 How. (43 U.S.) 210, 232 (1844). 1391 317 U.S. 1, 27 (1942). 1392 Id., 28. 1393 United States v. Arjona, 120 U.S. 479 487, 488 (1887). 1394 United States v. Flores, 3 F. Supp. 134 (E.D. Pa. 1932).

of nations does not mean that in every case Congress must undertake to codify that law or mark its precise boundaries before prescribing punishments for infractions thereof. An act punishing ‘‘the

crime of piracy, as defined by the law of nations’’ was held to be

an appropriate exercise of the constitutional authority to ‘‘define

and punish’’ the offense, since it adopted by reference the sufficiently precise definition of International Law. 1390 Similarly, in Ex

parte Quirin, 1391 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.’’ 1392 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. 1393

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 1394 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
ART. I—LEGISLATIVE DEPARTMENT 305

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1395 United States v. Flores, 289 U.S. 137, 149–150 (1933). 1396 United States v. Furlong, 5 Wheat. (18 U.S.) 184, 200 (1820). 1397THE FEDERALIST, No. 23 (J. Cooke ed. ed.: 1937), 146–151.

the jurisdiction in admiralty, previously divided between the Confederation and the States, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than

supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to

both the States and the National Government powers which were

common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define

and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of

every grade committed on them while in foreign territorial waters.’’ 1395 Within the meaning of this section, an offense is committed on the high seas even where the vessel on which it occurs is

lying at anchor on the road in the territorial waters of another

country. 1396

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, 1397 Hamilton elaborated
306 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1398Penhallow v. Doane, 3 Dall. (3 U.S.) 53 (1795). 1399 4 Wheat. (17 U.S.) 316 (1819). 1400 Id., 407. (Emphasis supplied.) 1401 Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866) (dissenting opinion); see

also Miller v. United States, 11 Wall. (78 U.S.) 268, 305 (1871); and United States

v. MacIntosh, 283 U.S. 605, 622 (1931). 1402 Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861). 1403 Hamilton v. Dillin, 21 Wall. (88 U.S.) 73, 86 (1875). 1404 Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149

(1919). 1405 Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398 (1934). 1406 Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 U.S. 135, 149

(1919). 1407 299 U.S. 304 (1936).

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. 1398 Chief

Justice Marshall appears to have taken a still different view,

namely that the power to wage war is implied from the power to

declare it. In McCulloch v. Maryland, 1399 he listed the power ‘‘to

declare and conduct a war’’ 1400 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.’’ 1401 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4,

1861, 1402 the Court referred to ‘‘the war power’’ as a single unified

power. 1403

An Inherent Power.—Thereafter, we find the phrase, ‘‘the

war power,’’ being used by both Chief Justice White 1404 and Chief

Justice Hughes, 1405 the former declaring the power to be ‘‘complete

and undivided.’’ 1406 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. Curtis-Wright Corp., 1407 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 Con-
ART. I—LEGISLATIVE DEPARTMENT 307

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1408 Id., 316, 318. On the controversy respecting Curtiss-Wright, see infra, Article II.

1409 334 U.S. 742 (1948).

1410 Id., 757–758.

1411 Id., 755 n. 3.

1412 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (New

Haven: rev. ed. 1937), 313.

1413Mr. 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., 318.

tinental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an

army, created a navy, and finally adopted the Declaration of Independence. . . . It results that the investment of the Federal Government with the powers of external sovereignty did not depend

upon the affirmative grants of the Constitution. The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never

been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality.’’ 1408

A Complexus of Granted Powers.—In Lichter v. United

States, 1409 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.’’ 1410 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. . . .’’ 1411

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.’’ 1412 Although there were solitary suggestions that the power

should better be vested in the President alone, 1413 in the Senate
308 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1414Mr. 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. Ibid. 1415 Hamilton’s plan provided that the President was ‘‘to make war or peace,

with the advice of the senate . . .’’ 1 id., 300. 1416 2 id., 318–319. In THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465, Hamilton notes: ‘‘[T]he President is to be commander-in-chief of the army and navy of the

United States. In this respect his authority would be nominally the same with that

of the king of Great Britain, but in substance much inferior to it. It would amount

to nothing more than the supreme command and direction of the military and naval

forces, as first General and admiral of the confederacy; while that of the British

king extends to the declaring of war and to the raising and regulating of fleets and

armies,—all which, by the Constitution under consideration, would appertain to the

legislature.’’ (Emphasis in original). And see id., No. 26, 164–171. Cf. C. BERDAHL,

WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES (Urbana, Ill.: 1921), ch. V. 1417THE 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 (New Haven: rev. ed. 1937), 318. 1418The Articles of Confederation vested powers with regard to foreign relations

in the Congress. 1419 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (New

Haven: rev. ed. 1937), 318–319. 1420 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., 318. 1421 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., 319. The contemporary and

alone, 1414 or in the President and the Senate, 1415 the sentiment of

the Convention, as best we can determine from the limited notes

of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by

the concurrence of the President and both Houses of Congress. 1416

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; 1417 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. 1418

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to

‘‘declare war.’’ 1419 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 1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President. 1421
ART. I—LEGISLATIVE DEPARTMENT 309

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

subsequent judicial interpretation was to the understanding set out in the text. Cf.

Talbot v. Seeman, 1 Cr. (5 U.S.), 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, 4 Wall. (71 U.S.) 2, 139 (1866). 1422MESSAGES AND PAPERS OF THE PRESIDENTS, J. Richardson ed. (Washington:

1896), 326, 327. 1423 7 WORKS OF ALEXANDER HAMILTON, J. Hamilton ed. (New York: 1851), 746–

747.1424 2 Stat. 129, 130 (1802) (emphasis supplied). 1425Of 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 Dall. (4 U.S.) 37 (1800). 1426The Prize Cases, 2 Bl. (67 U.S.) 635 (1863). 1427 12 Stat. 326 (1861).

An early controversy revolved about the issue of the President’s powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting

armed conflict. The Bey of Tripoli, in the course of attempting to

extort payment for not molesting United States shipping, declared

war upon the United States, and a debate began whether Congress

had to enact a formal declaration of war to create a legal status

of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in

the narrowest sense of the term. Attacked by a Tripolitan cruiser,

one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. 1422

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. 1423 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 . . .’’ 1424 But no formal declaration of war was passed, Congress apparently accepting Hamilton’s

view. 1425

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. 1426 Congress had subsequently

ratified Lincoln’s action, 1427 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
310 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1428The Prize Cases, 2 Bl. (67 U.S.) 635, 669 (1863). 1429 Id., 682. 1430The Protector, 12 Wall. (79 U.S.) 700, 702 (1872). 1431The controversy, not susceptible of definitive resolution in any event, was

stilled for the moment, when in 1973 Congress set a cut-off date for United States

military activities in Indochina, P.L. 93–52, 108, 87 Stat. 134, and subsequently,

over the President’s veto, Congress enacted the War Powers Resolution, providing

a framework for the assertion of congressional and presidential powers in the use

of military force. P.L. 93–148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541–1548. 1432 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 MassachuPresidential 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.’’ 1428 The

minority challenged this doctrine on the ground that while the

President could unquestionably adopt such measures as the laws

permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war

and thereby authorize the legal consequences ensuing from a state

of war. 1429

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.’’ 1430

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 Vietnamese 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. 1431 The

Supreme Court studiously refused to consider the issue in any of

the forms in which it was presented, 1432 and the lower courts gen-
ART. I—LEGISLATIVE DEPARTMENT 311

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

setts 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. 1433 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. den., 396 U.S. 1042 (1970);

Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 1966), aff’d 373 F.2d 664 (C.A.D.C.

1967), cert. den., 389 U.S. 945 (1968); Mora v. McNamara, 387 F.2d 862 (D.C.Cir.,

1967), cert. den., 389 U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y.

1970), and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and aff’d,

443 F.2d 1039 (2d Cir., 1971), cert. den., 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. den., 416 U.S. 936 (1974); Mitchell v. Laird, 488 F.2d 611 (D.C.Cir.,

1973).

During the 1980s, the courts were no more receptive to suits, many by Members

of Congress, seeking to obtain a declaration of the President’s powers. The political

question doctrine as well as certain discretionary authorities were relied on. See,

e.g., Crockett v. Reagan, 558 F.Supp. 893 (D.D.C. 1982) (military aid to El Salvador), affd. 720 F.2d 1355 (D.C.Cir. 1983), cert. den., 467 U.S. 1251 (1984); Conyers

v. Reagan, 578 F.Supp. 324 (D.D.C. 1984) (invasion of Grenada), dismd. as moot,

765 F.2d 1124 (D.C.Cir. 1985); Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987)

(reflagging and military escort operation in Persian Gulf), affd. No. 87–5426

(D.C.Cir. 1988); Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990) (U.S. Saudia Arabia/Persian Gulf deployment). 1434For further discussion, see under section on President’s commander-in-chief

powers. 1435W. BLACKSTONE, COMMENTARIES, St. G. Tucker ed. (Philadelphia: 1803),

263.

erally refused, on ‘‘political question’’ grounds, to adjudicate the

matter. 1433 In the absence of judicial elucidation, the Congress and

the President have been required to accommodate themselves in

the controversy to accept from each other less than each has been

willing to accept but more than either has been willing to

grant. 1434

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. 1435 Aware historically that these powers had been utilized to the detriment of the liberties and well-being of Englishmen

and aware that in the English Declaration of Rights of 1688 it was

insisted that standing armies could not be maintained without the
312 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1436 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1187. 1437 25 Ops. Atty. Gen. 105, 108 (1904). 1438 40 Ops. Atty. Gen. 555 (1948). 1439Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S.

3 (1918). 1440 Id., 245 U.S., 385. 1441 Id., 386–388. The measure was upheld by a state court. Kneedler v. Lane,

45 Pa. St. 238 (1863). 1442 Act of May 18, 1917, 40 Stat. 76.

consent of Parliament, the Framers vested these basic powers in

Congress. 1436

Time Limit on Appropriations for the Army

Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that ‘‘no appropriation of

money to that use shall be for a longer term than two years.’’ In

1904, the question arose whether this provision would be violated

if the Government contracted to pay a royalty for use of a patent

in constructing guns and other equipment where the payments are

likely to continue for more than two years. Solicitor-General Hoyt

ruled that such a contract would be lawful; that the appropriations

limited by the Constitution ‘‘are those only which are to raise and

support armies in the strict sense of the word ‘support,’ and that

the inhibition of that clause does not extend to appropriations for

the various means which an army may use in military operations,

or which are deemed necessary for the common defense. . . .’’ 1437

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.’’ 1438

Conscription

The constitutions adopted during the Revolutionary War by at

least nine of the States sanctioned compulsory military service. 1439

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. 1440 In 1863, a compulsory draft law was adopted and put

into operation without being challenged in the federal courts. 1441

Not so the Selective Service Act of 1917. 1442 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 Constitu-
ART. I—LEGISLATIVE DEPARTMENT 313

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1443Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918). 1444 Butler v. Perry, 240 U.S. 328, 333 (1916). 1445 245 U.S. 366 (1918). 1446 Id., 390. 1447 Universal Military Training and Service Act of 1948, 62 Stat. 604, as

amended, 50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of

July 1, 1973, P.L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), and registration

was discontinued in 1975. Pres. Proc. No. 4360, 3 C.F.R. 462, 50 U.S.C. App. § 453

note. Registration, but not conscription, was reactivated in the wake of the invasion

of Afghanistan. P.L. 96–282, 94 Stat. 552 (1980). 1448 391 U.S. 367 (1968). 1449 Id., 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948). 1450Schlesinger v. Ballard, 419 U.S. 498, 510 (1975). 1451 Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id., 64–65. And see Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841

tion, 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. 1443

Before the United States entered the first World War, the

Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it

in the following words: ‘‘It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was

not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the

jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.’’ 1444 Accordingly, in the Selective

Draft Law Cases, 1445 it dismissed the objection under that amendment as a contention that was ‘‘refuted by its mere statement.’’ 1446

Although the Supreme Court has so far formally declined to

pass on the question of the ‘‘peacetime’’ draft, 1447 its opinions leave

no doubt of the constitutional validity of the act. In United States

v. O’Brien, 1448 upholding a statute prohibiting the destruction of

selective service registrants’ certificate of registration, the Court,

speaking through Chief Justice Warren, thought ‘‘[t]he power of

Congress to classify and conscript manpower for military service is

‘beyond question.’’’ 1449 In noting Congress’ ‘‘broad constitutional

power’’ to raise and regulate armies and navies, 1450 the Court has

specifically observed that the conscription act was passed ‘‘pursuant to’’ the grant of authority to Congress in clauses 12–14. 1451
314 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

(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). 1452Parker v. Levy, 417 U.S. 733, 743–752 (1974). See also Orloff v. Willoughby,

345 U.S. 83, 93–94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746–748 (1975);

Greer v. Spock, 424 U.S. 828, 837–838 (1976); Middendorf v. Henry, 425 U.S. 25,

45–46 (1976); Brown v. Glines, 444 U.S. 348, 353–358 (1980); Rostker v. Goldberg,

453 U.S. 57, 64–68 (1981). 1453 Rostker v. Goldberg, 453 U.S. 57, 67 (1981). 1454 Id., 66. ‘‘[P]erhaps in no other area has the Court accorded Congress greater

deference.’’ Id., 64–65. See also Gilligan v. Morgan, 413 U.S. 1, 10 (1973). 1455Parker 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). 1456 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).

Care of the Armed Forces

Scope of the congressional and executive authority to prescribe

the rules for the governance of the military is broad and subject to

great deference by the judiciary. The Court recognizes ‘‘that the

military is, by necessity, a specialized society separate from civilian

society,’’ that ‘‘[t]he military constitutes a specialized community

governed by a separate discipline from that of the civilian,’’ and

that ‘‘Congress is permitted to legislate both with greater breadth

and with greater flexibility when prescribing the rules by which

[military society] shall be governed than it is when prescribing

rules for [civilian society].’’ 1452 Denying that Congress or military

authorities are free to disregard the Constitution when acting in

this area, 1453 the Court nonetheless operates with ‘‘a healthy deference to legislative and executive judgments’’ with respect to military affairs, 1454 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.’’ 1455

In reliance upon this deference to congressional judgment with

respect to the roles of the sexes in combat and the necessities of

military mobilization, coupled with express congressional consideration of the precise questions, the Court sustained as constitutional

the legislative judgment to provide only for registration of males

for possible future conscription. 1456 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
ART. I—LEGISLATIVE DEPARTMENT 315

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1457Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407

U.S. 197 (1972). 1458 Brown v. Glines, 444 U.S. 348 (1980); Secretary of the Navy v. Huff, 444

U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. § 1034, which protects a serviceman’s right to communicate with a Member of Congress, but which

the Court interpreted narrowly. 1459Parker v. Levy, 417 U.S. 733 (1974). 1460 Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men charging racial discrimination by their superiors in duty assignments and performance evaluations

could not bring constitutional tort suits); United States v. Stanley, 483 U.S. 669

(1987) (officer who had been an unwitting, unconsenting subject of an Army experiment to test the effects of LSD on human subjects could not bring a constitutional

tort for damages). These considerations are also the basis of the Court’s construction

of the Federal Tort Claims Act so that it does not reach injuries arising out of or

in the course of military activity. Feres v. United States, 340 U.S. 135 (1950). In

United States v. Johnson, 481 U.S. 681 (1987), four Justices urged reconsideration

of Feres, but that has not occurred. 1461 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). 1462Wissner 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

the loyalty, discipline, or morale of troops on the base. 1457 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. 1458 And the statements of a military officer urging

disobedience to certain orders could be punished under provisions

that would have been of questionable validity in a civilian context. 1459 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. 1460

Congress has a plenary and exclusive power to determine the

age at which a soldier or seaman shall be received, the compensation he shall be allowed and the service to which he shall be assigned. This power may be exerted to supersede parents’ control of

minor sons who are needed for military service. Where the statute

requiring the consent of parents for enlistment of a minor son did

not permit such consent to be qualified, their attempt to impose a

condition that the son carry war risk insurance for the benefit of

his mother was not binding on the Government. 1461 Since the possession of government insurance payable to the person of his choice

is calculated to enhance the morale of the serviceman, Congress

may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of

creditors. 1462 Likewise, Congress may bar a State from taxing the
316 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

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). 1463Dameron 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). 1464McKinley v. United States, 249 U.S. 397 (1919). 1465The 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). 1466 Compare Solorio v. United States, 483 U.S. 435, 441–447 (1987) (majority

opinion), with id., 456–461 (dissenting opinion), and O’Callahan v. Parker, 395 U.S.

258, 268–272 (1969) (majority opinion), with id., 276–280 (Justice Harlan dissenting). See Duke & Vogel, ‘‘The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction,’’ 13 Vand. L. Rev. 435 (1960). 1467 395 U.S. 258 (1969). 1468 Id., 273–274. See also Relford v. Commandant, 401 U.S. 355 (1971); Gosa

v. Mayden, 413 U.S. 665 (1973). 1469 483 U.S. 435 (1987).

tangible, personal property of a soldier, assigned for duty therein,

but domiciled elsewhere. 1463 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. 1464

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. 1465 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 is extensive disagreement about

the practice of court-martial trial of servicemen for nonmilitary offenses in the past, 1466 the matter never really 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, 1467 the Court held that court-martial

jurisdiction was lacking to try servicemen charged with a crime

that was not ‘‘service connected.’’ The Court attempted to assay no

definition of ‘‘service connection,’’ but among the factors it noted

were that the crime in question was committed against a civilian

in peacetime in the United States off-base while the serviceman

was lawfully off duty. 1468 O’Callahan was overruled in Solorio v.

United States, 1469 the Court holding that ‘‘the requirements of the
ART. I—LEGISLATIVE DEPARTMENT 317

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1470 Id., 450–451. 1471 Id., 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. 1472 Ex parte Milligan, 4 Wall. (71 U.S.) 2, 123, 138–139 (1866); Ex parte

Quirin, 317 U.S. 1, 40 (1942). The matter was raised but left unresolved in

Middendorf v. Henry, 425 U.S. 25 (1976). 1473See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206

U.S. 333 (1907). 1474 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). 1475The UCMJ guarantees counsel, protection from self-incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few. 1476 Cf. O’Callahan v. Parker, 395 U.S. 258, 263–264 (1969). 1477 10 U.S.C. § 867.

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.’’ 1470 Chief Justice Rehnquist’s

opinion for the Court insisted that O’Callahan had been based on

erroneous readings of English and American history, and that ‘‘the

service connection approach . . . has proved confusing and difficult

for military courts to apply.’’ 1471

With regard to trials before court-martials, it is not clear what

provisions of the Bill of Rights and other constitutional guarantees

do apply. The Fifth Amendment expressly excepts ‘‘[c]ases arising

in the land and naval forces’’ from its grand jury provision, and

there is an implication that these cases are also excepted from the

Sixth Amendment. 1472 The double jeopardy provision of the Fifth

Amendment appears to be applicable. 1473 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. 1474 The Uniform Code of Military Justice, supplemented

by the Manual for Courts-Martial, affirmatively grants due process

rights roughly comparable to civilian procedures, so that many

such issues are unlikely to arise absolutely necessitating constitutional analysis. 1475 However, the Code leaves intact much of the

criticized traditional structure of courts-martial, including the pervasive possibilities of command influence, 1476 and the Court of

Military Appeals is limited on the scope of its review, 1477 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 soci-
318 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1478Parker 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.’’ 1479 Id., 756. 1480 Id., 757–761. 1481Kurtz v. Moffitt, 115 U.S. 487 (1885); Dynes v. Hoover, 20 How. (61 U.S.)

65 (1858). Judges of Article I courts do not have the independence conferred by security of tenure and of compensation. 1482Dynes v. Hoover, 20 How. (61 U.S.) 65 (1858). 1483Military Justice Act of 1983, P.L. 98–209, 97 Stat. 1393, 28 U.S.C. § 1259. 1484 Cf. Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866); Ex parte Yerger, 8 Wall.

(75 U.S.) 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). 1485 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).

ety. 1478 This difference has resulted in a military Code regulating

aspects of the conduct of members of the military that in the civilian sphere would go unregulated, but on the other hand the penalties imposed range from the severe to well below the threshold

of that possible in civilian life. Because of these factors, the Court,

while agreeing that constitutional limitations applied to military

justice, was of the view that the standards of constitutional guarantees were significantly different in the military than in civilian

life. Thus, the vagueness challenge to the Articles was held to be

governed by the standard applied to criminal statutes regulating

economic affairs, the most lenient of vagueness standards. 1479 Neither did application of the Articles to conduct essentially composed

of speech necessitate a voiding of the conviction, inasmuch as the

speech was unprotected, and, even while it might reach protected

speech, the officer here was unable to raise that issue. 1480

Military courts are not Article III courts but agencies established pursuant to Article I. 1481 It was established in the last century that the civil courts have no power to interfere with courtsmartial and that court-martial decisions are not subject to civil

court review. 1482 Until August 1, 1984, the Supreme Court had no

jurisdiction to review by writ of certiorari the proceedings of a military commission, but Congress has now conferred appellate jurisdiction of decisions of the Court of Military Appeals. 1483 Prior to

this time, civil court review of court-martial decisions was possible

through habeas corpus jurisdiction, 1484 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. 1485 In Burns v. Wil-
ART. I—LEGISLATIVE DEPARTMENT 319

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1486 346 U.S. 137 (1953). 1487 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). 1488 E.g., Calley v. Callaway, 519 F. 2d 184, 194–203 (5th Cir., 1975) (en banc),

cert. den., 425 U.S. 911 (1976). 1489 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). See also Lee v.

Madigan, 358 U.S. 228 (1959). 1490Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956 1491 Reid v. Covert, 354 U.S. 1 (1957) (voiding court-martial convictions of two

women for murdering their soldier husbands stationed in Japan). Chief Justice Warren and Justices Black, Douglas, and Brennan were of the opinion Congress’ power

under clause 14 could not reach civilians. Justices Frankfurter and Harlan concurred, limited to capital cases. Justices Clark and Burton dissented. 1492Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (voiding

court-martial conviction for noncapital crime of wife of soldier husband overseas).

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. 1493Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel.

Guagliardo, 361 U.S. 281 (1960).

son, 1486 however, at least seven Justices appeared to reject the traditional view and adopt the position that civil courts on habeas corpus could review claims of denials of due process rights to which

the military had not given full and fair consideration. Since Burns,

the Court has thrown little light on the range of issues cognizable

by a federal court in such litigation 1487 and the lower federal

courts have divided several possible ways. 1488

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. 1489 After first leaning the

other way, 1490 the Court on rehearing found lacking court-martial

jurisdiction, at least in peacetime, to try civilian dependents of

service personnel for capital crimes committed outside the United

States. 1491 Subsequently, the Court extended its ruling to civilian

dependents overseas charged with noncapital crimes 1492 and to civilian employees of the military charged with either capital or

noncapital crimes. 1493

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 em-
320 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1494 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1180. 1495 297 U.S. 288 (1936). 1496 39 Stat. 166 (1916). 1497 297 U.S., 327–328. 1498 60 Stat. 755 (1946), 42 U.S.C. § 1801 et seq. 1499 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.’’ 1500 72 Stat. 1580 (1958), as amended, codified to various sections of Titles 20

and 42. 1501 Universal Military Training and Service Act of 1948, 62 Stat. 604, as

amended, 50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of

July 1, 1973, P. L. 92–129, 85 Stat. 353, 50 U. S. C. App. 467(c), although registration for possible conscription is in effect. P. L. 96–282, 94 Stat. 552 (1980). 1502 National Aeronautics and Space Act of 1958, 72 Stat. 426, as amended,

codified in various sections of Titles 5, 18, and 50.

phasized that ‘‘[i]t is important also to consider, that the surest

means of avoiding war is to be prepared for it in peace. . . . How

could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? . . . It will be in vain to oppose

constitutional barriers to the impulse of self-preservation.’’ 1494 Authoritative judicial recognition of the power is found in Ashwander

v. Tennessee Valley Authority, 1495 in which the power of the Federal Government to construct and operate a dam and power plant,

pursuant to the National Defense Act of June 3, 1916, 1496 was sustained. The Court noted that the assurance of an abundant supply

of electrical energy and of nitrates, which would be produced at the

site, ‘‘constitute national defense assets’’ and the project was justifiable under the war powers. 1497

Perhaps the most significant example of legislation adopted

pursuant to the war powers when no actual ‘‘shooting war’’ was in

progress, with the object of strengthening national defense, was the

Atomic Energy Act of 1946, establishing a body to oversee and further the research into and development of atomic energy for both

military and civil purposes. 1498 Congress has also authorized a

vast amount of highway construction, pursuant to its conception of

their ‘‘primary importance to the national defense,’’ 1499 and the

first extensive program of federal financial assistance in the field

of education was the National Defense Education Act. 1500 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, 1501 authorization of extensive space exploration, 1502 authorization for wage and price con-
ART. I—LEGISLATIVE DEPARTMENT 321

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1503Title 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. 1504 Renogtiation Act of 1951, 65 Stat. 7, as amended, 50 U.S.C. App. § 1211 et

seq. 1505 E.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961); Peters v. Hobby, 349 U.S. 331 (1955). 1506Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Laub, 385 U.S. 475

(1967). 1507 United States v. Robel, 389 U.S. 258 (1967); United States v. Brown, 381

U.S. 437 (1965). 1508Stewart v. Kahn, 11 Wall. (78 U.S.) 493, 507 (1871) (sustaining a congressional deduction from a statute of limitations the period during which the Civil War

prevented the bringing of an action). See also Mayfield v. Richards, 115 U.S. 137

(1885). 1509 251 U.S. 146 (1919). See also Ruppert v. Caffey, 251 U.S. 264 (1920). 1510 Act of November 21, 1918, 40 Stat. 1046. 1511 251 U.S., 163. 1512 Block v. Hirsh, 256 U.S. 135 (1921). 1513 Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924). 1514Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See also Fleming Mohawk Wrecking Co., 331 U.S. 111 (1947).

trols, 1503 and continued extension of the Renegotiation Act to recapture excess profits on defense contracts. 1504 Additionally, the

period saw extensive regulation of matter affecting individual

rights, such as loyalty-security programs, 1505 passport controls, 1506

and limitations on members of the Communist Party and associated organizations, 1507 all of which are dealt with in other sections.

A particular province of such legislation is that designed to effect a transition from war to peace. The war power ‘‘is not limited

to victories in the field. . . . It carries with it inherently the power

to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.’’ 1508

This principle was given a much broader application after the First

World War in Hamilton v. Kentucky Distilleries Co., 1509 where the

War Time Prohibition Act 1510 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. 1511 But in 1924,

it held that a rent control law for the District of Columbia, which

had been previously upheld, 1512 had ceased to operate because the

emergency which justified it had come to an end. 1513

A similar issue was presented after World War II in which 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. 1514 However,
322 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1515 Id., 333 U.S., 143–144. 1516Ludecke v. Watkins, 335 U.S. 160 (1948). 1517 Id., 170. 1518Lichter v. United States, 334 U.S. 742, 779 (1948). 1519For 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 (Pittsburgh: 1961). 1520 In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), the objection

was dismissed without discussion. The issue was decided by reference to peacetime

precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).

the Court cautioned that ‘‘[w]e recognize the force of the argument

that the effects of war under modern conditions may be felt in the

economy for years and years, and that if the war power can be used

in days of peace to treat all the wounds which war inflicts on our

society, it may not only swallow up all other powers of Congress

but largely obliterate the Ninth and Tenth Amendments as well.

There are no such implications in today’s decision.’’ 1515

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. 1516 ‘‘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.’’ 1517

Delegation of Legislative Power in Wartime

The Court has insisted that in times of war as in times of

peace ‘‘the respective branches of the Government keep within the

power assigned to each,’’ 1518 thus raising the issue of permissible

delegation, inasmuch as during a war Congress has been prone to

delegate many more powers to the President than at other

times. 1519 But the number of cases actually discussing the matter

is few. 1520 Two theories have been advanced at times when the delegation doctrine carried more of a force than it has in recent years.

First, it is suggested that inasmuch as the war power is inherent

in the Federal Government, and one shared by the legislative and

executive branches, Congress does not really delegate legislative

power when it authorizes the President to exercise the war power

in a prescribed manner, a view which entirely overlooks the fact

that the Constitution expressly vests the war power as a legislative

power in Congress. Second, it is suggested that Congress’ power to

delegate in wartime is limited as in other situations but that the
ART. I—LEGISLATIVE DEPARTMENT 323

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1521 21 Wall. (88 U.S.) 73 (1875).

1522 Id., 96–97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).

1523 320 U.S. 81 (1943).

1524 Id., 91–92, 104.

1525 Id., 104.

1526 334 U.S. 742 (1948).

1527 Id., 778–779, 782.

1528 Id., 778–783.

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, 1521 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. . . .’’ 1522

Both theories found expression in different passages of Chief

Justice Stone’s opinion in Hirabayashi v. United States, 1523 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, 1524 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 carry-out of the matter, is permissible

delegation. 1525

A similar ambiguity is found in Lichter v. United States, 1526

upholding the Renegotiation Act, but taken as a whole the Court

there espoused the second theory. ‘‘The power [of delegation] is especially significant in connection with constitutional war powers

under which the exercise of broad discretion as to method to be employed may be essential to an effective use of its war powers by

Congress. The degree to which Congress must specify its policies

and standards in order that the administrative authority granted

may not be an unconstitutional delegation of its own legislative

power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides

equally in war and in peace, they must be read with the realistic

purposes of the entire instrument fully in mind.’’ 1527 The Court

then examined the exigencies of war and concluded that the delegation was valid. 1528
324 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1529 4 Wall. (71 U.S.) 2 (1866). 1530 Id., 127. 1531 Id., 132, 138. 1532 Id., 121, 139–142. 1533 327 U.S. 304 (1946). 1534 New Orleans v. The Steamship Co., 20 Wall. (87 U.S.) 387 (1874); Santiago

v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 343 U.S. 341 (1952). 1535 100 U.S. 158, 170 (1880).

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, 1529

in which the trial by a military commission of a civilian charged

with disloyalty in a part of the country remote from the theater of

military operations was held invalid. Although unanimous in the

result, the Court divided five-to-four on the ground of decision. The

point of disagreement was over which department of the Government had authority to say with finality what regions lie within the

theater of military operations. The majority claimed this function

for the courts and asserted that an area in which the civil courts

were open and functioning does not; 1530 the minority argued that

the question was for Congress’ determination. 1531 The entire Court

rejected the Government’s contention that the President’s determination was conclusive in the absence of restraining legislation. 1532

Similarly, in Duncan v. Kahanamoku, 1533 the Court declared

that the authority granted by Congress to the territorial governor

of Hawaii to declare marital law under certain circumstances,

which he exercised in the aftermath of the attack on Pearl Harbor,

did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military

tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor’s order.

Enemy Country.—It has seemed reasonably clear that the

Constitution does not follow the advancing troops into conquered

territory. Persons in such territory have been held entirely beyond

the reach of constitutional limitations and subject to the laws of

war as interpreted and applied by the Congress and the President. 1534 ‘‘What is the law which governs an army invading an enemy’s country?’’ the Court asked in Dow v. Johnson. 1535 ‘‘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 su-
ART. I—LEGISLATIVE DEPARTMENT 325

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1536De 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).

1537 354 U.S. 1 (1957).

1538 Id., 6, 7.

1539For 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).

1540 8 Cr. (12 U.S.) 110 (1814). See also Conrad v. Waples, 96 U.S. 279 (1878).

premacy for the protection of the officers and soldiers of the army,

when in service in the field in the enemy’s country, is as essential

to the efficiency of the army as the supremacy of the civil law at

home, and, in time of peace, is essential to the preservation of liberty.’’

These conclusions follow not only from the usual necessities of

war but as well from the Court’s doctrine that the Constitution is

not automatically applicable in all territories acquired by the United States, the question turning upon whether Congress has made

the area ‘‘incorporated’’ or ‘‘unincorporated’’ territory, 1536 but in

Reid v. Covert, 1537 Justice Black in a plurality opinion of the Court

asserted that wherever the United States acts it must do so only

‘‘in accordance with all the limitation 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.’’ 1538 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. 1539

Enemy Property.—In Brown v. United States, 1540 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 Amendment. 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 the reach of his power, whether within his territory or outside it, impairs his ability to resist the
326 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1541Miller v. United States, 11 Wall. (78 U.S.) 268 (1871); Steehr v. Wallace,

255 U.S. 239 (1921); Central Trust Co. v. Garvan, 254 U.S. 554 (1921); United

States v. Chemical Foundation, 272 U.S. 1 (1926); Silesian-American Corp. v. Clark,

332 U.S. 469 (1947); Cities Service Co. v. McGrath, 342 U.S. 330 (1952);

Handelsbureau La Mola v. Kennedy, 370 U.S. 940 (1962); cf. Honda v. Clark, 386

U.S. 484 (1967). 1542The Siren, 13 Wall. (80 U.S.) 389 (1871). 1543The Hampton, 5 Wall. (72 U.S.) 372, 376 (1867). 1544The Paquete Habana, 175 U.S. 677, 700, 711 (1900). 1545 Ex parte Milligan, 4 Wall. (71 U.S.) 2, 120–121 (1866).

confiscating government while at the same time it furnishes to that

government means for carrying on the war. 1541

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. 1542 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. 1543 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. 1544

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.’’ 1545
ART. I—LEGISLATIVE DEPARTMENT 327

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1546 ‘‘During the late wicked Rebellion, the temper of the times did not allow

that calmness in deliberation and discussion so necessary to a correct conclusion of

a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which were happily terminated.

Now that the public safety is assured, this question, as well as all others, can be

discussed and decided without passion or the admixture of any element not required

to form a legal judgment.’’ Id., 109 (emphasis by Court). 1547Schneck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249

U.S. 211 (1919); Surgarman 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). 1548 40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918). 1549Gilbert v. Minnesota, 254 U.S. 325 (1920). 1550Schenck v. United States, 249 U.S. 47, 52 (1919). 1551 Hirabayashi v. United States, 320 U.S. 81 (1943). 1552Korematsu v. United States, 323 U.S. 214 (1944).

Ex parte Milligan, from which these words are quoted, is justly

deemed one of the great cases undergirding civil liberty in this

country in times of war or other great crisis, holding that except

in areas in which armed hostilities have made enforcement of civil

law impossible constitutional rights may not be suspended and civilians subjected to the vagaries of military justice. Yet, the words

were uttered after the cessation of hostilities, and the Justices

themselves recognized that with the end of the shooting there arose

the greater likelihood that constitutional rights could be and would

be observed and that the Court would require the observance. 1546

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, 1547 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917. 1548 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. 1549 Justice Holmes matter-of-factly stated the essence of the pattern that we have mentioned. ‘‘When a nation is at war many things that might be said

in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court

could regard them as protected by any constitutional right.’’ 1550 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, 1551 even by a regulation excluding

them from defined areas, 1552 but that a citizen of Japanese ances-
328 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1553 Ex parte Endo, 323 U.S. 283 (1944). 1554 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). 1555 E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive

Activities Control Board, 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437

(1965). 1556 United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of

State, 378 U.S. 500 (1964). And see Schneider v. Smith, 390 U.S. 17 (1968). 1557 § 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50 U.S.C.

§ 784(a)(1)(D). 1558 Id., 389 U.S., 264–266. 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., 282. 1559 403 U.S. 713 (1971). 1560The result in the case was reached by a six-to-three majority. The three dissenters, Chief Justice Burger, id., 748, Justice Harlan, id., 752, and Justice

Blackmun, id., 759, would have granted an injunction in the case; Justices Stewart

and White, id., 727, 730, would not in that case but could conceive of cases in which

they would. 1561 1 Stat. 577 (1798).

try whose loyalty was conceded could not be detained in a relocation camp. 1553

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 1554 and then in a series of cases was practically vitiated. 1555 Against a contention that Congress’ war powers had been

utilized to achieve the result, the Court struck down for the second

time in history a congressional statute as an infringement of the

First Amendment. 1556 It voided a law making it illegal for any

member of a ‘‘communist-action organization’’ to work in a defense

facility. 1557 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. 1558

On the other hand, in New York Times Co. v. United

States, 1559 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. 1560

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. 1561

Though critical of the measure, many persons conceded its con-
ART. I—LEGISLATIVE DEPARTMENT 329

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1562 6 Writing of James Madison, G. Hunt ed. (New York: 1904), 360–361. 1563 40 Stat. 531 (1918), 50 U.S.C. § 21. 1564 335 U.S. 160 (1948). 1565 Ex parte Quirin, 317 U.S. 1 (1942). 1566Mitchell v. Harmony, 13 How. (54 U.S.) 115, 134 (1852). 1567 13 Wall. (80 U.S.) 623, 627 (1871). 1568 120 U.S. 227 (1887). 1569 Id., 239. 1570 H.R. Rept. No. 262, 43d Cong., 1st Sess. (1874), 39–40.

stitutionality on the theory that Congress’ power to declare war

carried with it the power to treat the citizens of a foreign power

against which war has been declared as enemies entitled to summary justice. 1562 A similar statute was enacted during World War

I 1563 and was held valid in Ludecke v. Watkins. 1564

During World War II, the Court unanimously upheld the

power of the President to order to trial before a military tribunal

German saboteurs captured within this Country. 1565 Enemy combatants, said Chief Justice Stone, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of

war but are unlawful combatants punishable by military tribunals.

Eminent Domain.—An often-cited dictum uttered shortly

after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of

the enemy, or for that taken for public use. 1566 In United States

v. Russell, 1567 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, 1568 also a Civil War case, the Court held that the

United States was not responsible for the injury or destruction of

private property by military operations, but added that it did not

have in mind claims for property of loyal citizens taken for the use

of the national forces. ‘‘In such cases,’’ the Court said, ‘‘it has been

the practice of the government to make compensation for the property taken. . . . although the seizure and appropriation of private

property under such circumstances by the military authorities may

not be within the terms of the constitutional clauses.’’ 1569

Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of

the Civil War, had voiced the opinion that the Fifth Amendment

embodies the distinction between a taking of property in the course

of military operations or other urgent military necessity, and other

takings for war purposes, and required compensation of owners in

the latter class of cases. 1570 In determining what constitutes just

compensation for property requisitioned for war purposes during
330 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—The War Power

1571 United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United

States v. Toronto Nav. Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United

States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States

v. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372

(1946); United States v. General Motors Corp., 323 U.S. 373 (1945). 1572 United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas

and Black dissented. 1573 Block v. Hirsh, 256 U.S. 135 (1921). 1574 But quaere in the light of Nebbia v. New York, 291 U.S. 502 (1934), Olsen

v. Nebraska ex rel. Western Reference and Bond Association, 313 U.S. 236 (1941),

and their progeny. 1575 Block v. Hirsh, 256 U.S. 135, 156 (1921). 1576 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). 1577 Bowles v. Willingham, 321 U.S. 503, 519 (1944). 1578 Id., 521. The Court stressed, however, that Congress had provided for judicial review after the regulations and orders were made effective.

World War II, the Court has assumed that the Fifth Amendment

is applicable to such takings. 1571 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. 1572

Rent and Price Controls.—Even at a time when the Court

was utilizing substantive due process to void economic regulations,

it generally sustained such regulations in wartime. Thus, shortly

following the end of World War I, it sustained, by a narrow margin,

a rent control law for the District of Columbia, which not only limited permissible rent increases but also permitted existing tenants

to continue in occupancy provided they paid rent and observed

other stipulated conditions. 1573 Justice Holmes for the majority

conceded in effect that in the absence of a war emergency the legislation might transcend constitutional limitations 1574 but noted that

‘‘a public exigency will justify the legislature in restricting property

rights in land to a certain extent without compensation.’’ 1575

During World War II and thereafter, economic controls were

uniformly sustained. 1576 An apartment house owner who complained that he was not allowed a ‘‘fair return’’ on the property was

dismissed with the observation that ‘‘a nation which can demand

the lives of its men and women in the waging of . . . war is under

no constitutional necessity of providing a system of price control

. . . which will assure each landlord a ‘fair return’ on his property.’’ 1577 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. 1578
ART. I—LEGISLATIVE DEPARTMENT 331

Sec. 8—Powers of Congress Cls. 15 and 16—Power over the Militia

1579 Act of October 22, 1919, 2, 41 Stat. 297. 1580 United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921). 1581Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed, Houston v. Moore,

5 Wheat. (18 U.S.) 1 (1820). 1582Texas v. White, 7 Wall. (74 U.S.) 700 (1869); Tyler v. Defrees, 11 Wall. (78

U.S.) 331 (1871). 1583 1 Stat. 424 (1795), 10 U.S.C. § 332. 1584Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32 (1827).

But in another World War I case, the Court struck down a

statute which penalized the making of ‘‘any unjust or unreasonable

rate or charge in handling . . . any necessaries’’ 1579 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. 1580

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

Militi according to the discipline prescribed by Congress.

THE MILITIA CLAUSE

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. 1581 The Federal Government may call out the

militia in case of civil war; its authority to suppress rebellion is

found in the power to suppress insurrection and to carry on

war. 1582 The act of February 28, 1795, 1583 which delegated to the

President the power to call out the militia, was held constitutional. 1584 A militiaman who refused to obey such a call was not

‘‘employed in the service of the United States so as to be subject
332 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cls. 15 and 16—Power over the Militia

1585 Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820); Martin v. Mott, 12 Wheat.

(25 U.S.) 19 (1827). 1586 Houston v. Moore, 5 Wheat. (18 U.S.) 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). 1587 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). 1588Military and civilian personnel of the National Guard are state, rather than

federal, employees and the Federal Government is thus not liable under the Tort

Claims Act for their negligence. Maryland v. United States, 381 U.S. 41 (1965).

to the article of war,’’ but was liable to be tried for disobedience of

the act of 1795. 1585

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 . . .’’ 1586 Under the National Defense Act of 1916, 1587 the militia, which hitherto had been an almost purely state institution, was brought under the control of the

National Government. The term ‘‘militia of the United States’’ was

defined to comprehend ‘‘all able-bodied male citizens of the United

States and all other able-bodied males who have . . . declared their

intention to become citizens of the United States,’’ between the

ages of eighteen and forty-five. The act reorganized the National

Guard, determined its size in proportion to the population of the

several States, required that all enlistments be for ‘‘three years in

service and three years in reserve,’’ limited the appointment of officers to those who ‘‘shall have successfully passed such tests as to

. . . physical, moral and professional fitness as the President shall

prescribe,’’ and authorized the President in certain emergencies to

‘‘draft into the military service of the United States to serve therein

for the period of the war unless sooner discharged, and all members of the National Guard and National Guard Reserve,’’ who

thereupon should ‘‘stand discharged from the militia.’’ 1588

The militia clauses do not constrain Congress in raising and

supporting a national army. The Court has approved the system of

‘‘dual enlistment,’’ under which persons enlisted in state militia

(National Guard) units simultaneously enlist in the National
ART. I—LEGISLATIVE DEPARTMENT 333

Sec. 8—Powers of Congress Cl. 17—Seat of Government

1589Perpich v. Department of Defense, 496 U.S. 434 (1990). 1590 J. FISKE, THE CRITICAL PERIOD OF AMERICAN HISTORY, 1783–1789 (Boston:

1888), 112–113; W. TINDALL, THE ORIGIN AND GOVERNMENT OF THE DISTRICT OF COLUMBIA (Washington: 1903), 31–36.

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. 1589

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. 1590

Thus, Madison noted that ‘‘[t]he indispensable necessity of complete authority at the seat of government, carries its own evidence

with it. . . . Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State

comprehending the seat of government, for protection in the exercise of their duty, might bring on the national council an imputa-
334 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 17—Seat of Government

1591THE FEDERALIST, No. 43 (J. Cooke ed. 1961), 288–289. See also 3 J. STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Boston: 1833), 1213,

1214.1592W. TINDALL, THE ORIGIN AND GOVERNMENT OF THE DISTRICT OF COLUMBIA

(Washington: 1903), 5–30. 1593Maryland Laws 1798, ch. 2, p. 46; 13 Laws of Virginia 43 (Hening 1789). 1594 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). 1595 Act of February 27, 1801, 2, 2 Stat. 103. The declaration of the continuing

effect of state law meant that law in the District was frozen as of the date of cession, unless Congress should change it, which it seldom did. For some of the problems, see Tayloe v. Thompson, 5 Pet. (30 U.S.) 358 (1831); Ex parte Watkins, 7 Pet.

(32 U.S.) 568 (1833); Stelle v. Carroll, 12 Pet. (37 U.S.) 201 (1838); Van Ness v.

United States Bank, 13 Pet. (38 U.S.) 17 (1839); United States v. Eliason, 16 Pet.

(41 U.S.) 291 (1842). 1596 Act of March 3, 1801, 1, 2 Stat. 115. 1597The 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 (Boston: 1833), 1215, 1216. 1598THE FEDERALIST, No. 43 (J. Cooke ed. 1961), 289. 1599Such a contention was cited and rebutted in 3 J. STORY, COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES (Boston: 1833), 1218.

tion of awe or influence, equally dishonorable to the government

and dissatisfactory to the other members of the confederacy.’’ 1591

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. 1592 Maryland and

Virginia both authorized the cession of territory 1593 and Congress

accepted. 1594 Congress divided the District into two counties,

Washington and Alexandria, and provided that the local laws of the

two States should continue in effect. 1595 It also established a circuit court and provided for the appointment of judicial and law enforcement officials. 1596

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. 1597

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. . . .’’ 1598 Although there was some dispute about the

constitutional propriety of permitting local residents a measure of

‘‘home rule,’’ to use the recent term, 1599 almost from the first there
ART. I—LEGISLATIVE DEPARTMENT 335

Sec. 8—Powers of Congress Cl. 17—Seat of Government

1600 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 (Washington: 1958). 1601 Act of June 11, 1878, 20 Stat. 103. 1602 Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, reprinted as appendix to District of Columbia Code, Title I. 1603District of Columbia Self-Government and Governmental Reorganization

Act, P.L. 93–198, 87 Stat. 774. 1604Twenty-third Amendment. 1605P.L. 91–405, 84 Stat. 848, D.C. Code, § 1–291. 1606 H.J. Res. 554, 95th Congress, passed the House on March 2, 1978, and the

Senate on August 22, 1978, but only 16 States had ratified before the expiration

after seven years of the proposal. 1607Loughborough v. Blake, 5 Wheat. (18 U.S.) 317 (1820); Heald v. District of

Columbia, 259 U.S. 114 (1922). 1608District 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. 1609 Id., 109–110. See also Thompson v. Lessee of Carroll, 22 How. (63 U.S.) 422

(1860); Stoutenburgh v. Hennick, 129 U.S. 141 (1889). 1610 2 Cr. (6 U.S.) 445 (1805); see also Sere v. Pitot, 6 Cf. (10 U.S.) 332 (1810);

New Orleans v. Winter, 1 Wheat. (14 U.S.) 91 (1816). The District was held to be

a State within the terms of a treaty. Geofroy v. Riggs, 133 U.S. 258 (1890).

were local elections provided for. In 1802, the District was divided

into five divisions, in some of which the governing officials were

elected; an elected mayor was provided in 1820. District residents

elected some of those who governed them until this form of government was swept away in the aftermath of financial scandals in

1874 1600 and replaced with presidentially appointed Commission in

1878. 1601 The Commission lasted until 1967 when it was replaced

by an appointed Mayor-Commissioner and an appointed city council. 1602 In recent years, Congress provided for a limited form of

self-government in the District, with the major offices filled by election. 1603 District residents vote for President and Vice President 1604 and elect a nonvoting delegate to Congress. 1605 An effort

by constitutional amendment to confer voting representation in the

House and Senate failed of ratification. 1606

Constitutionally, it appears that Congress is neither required

to provide for a locally elected government 1607 nor precluded from

delegating its powers over the District to an elective local government. 1608 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. 1609

Chief Justice Marshall for the Court held in Hepburn v.

Ellzey 1610 that the District of Columbia was not a State within the

meaning of the diversity jurisdiction clause of Article III. This
336 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 17—Seat of Government

1611 Barney v. City of Baltimore, 6 Wall. (73 U.S.) 280 (1868); Hooe v. Jamieson,

166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 (1897). 1612 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). 1613 Id., 588–600 (Justices Jackson, Black and Burton). 1614 Id., 604 (Justices Rutledge and Murphy). The dissents were by Chief Justice

Vinson, id., 626, joined by Justice Douglas, and by Justice Frankfurter, id., 646,

joined by Justice Reed. 1615 Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S.

1 (1899). 1616 United States v. Moreland, 258 U.S. 433 (1922). 1617Wright 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). 1618Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 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). 1619 In the District of Columbia Court Reform and Criminal Procedure Act of

1970, P.L. 91–358, 111, 84 Stat. 475, D.C. Code, § 11–101, Congress specifically declared it was acting pursuant to Article I in creating the Superior Court and the

view, adhered to for nearly a century and a half, 1611 was overturned by the Court in 1949 upholding the constitutionality of a

1940 statute authorizing federal courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia

and the citizens of a State. 1612 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. 1613

Two others thought that Hepburn v. Ellzey had been erroneously

decided and would have overruled it. 1614 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 1615 and of presentment by a grand jury. 1616 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. 1617

Congress possesses over the District of Columbia the blended

powers of a local and national legislature. 1618 This fact means that

in some respects ordinary constitutional restrictions do not operate;

thus, for example, in creating local courts of local jurisdiction in the

District, Congress acts pursuant to its legislative powers under

clause 17 and need not create courts that comply that Article III

court requirements. 1619 And when legislating for the District Con-
ART. I—LEGISLATIVE DEPARTMENT 337

Sec. 8—Powers of Congress Cl. 17—Federal Property

District of Columbia Court of Appeals and pursuant to Article III in continuing the

United States District Court and the United States Court of Appeals for the District

of Columbia. The Article I courts were sustained in Palmore v. United States, 411

U.S. 389 (1973). See also Swain v. Pressley, 430 U.S. 372 (1977). The latter, federal

courts, while Article III courts, traditionally have had some non-Article III functions

imposed on them, under the ‘‘hybrid’’ theory announced in O’Donoghue v. United

States, 289 U.S. 516 (1933). E.g., Hobson v. Hansen, 265 F. Supp. 902 (D.C.D.C.

1967), app. dismd., 393 U.S. 801 (1968) (power then vested in District Court to appoint school board members). See also Keller v. Potomac Electric Co., 261 U.S. 428

(1923); Embry v. Palmer, 107 U.S. 3 (1883). 1620 Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 428 (1821). 1621 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). 1622 Battle v. United States, 209 U.S. 36 (1908). 1623 Arlington Hotel v. Fant, 278 U.S. 439 (1929). 1624 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). 1625 Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938). 1626 Id., 528. 1627 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). 1628Surplus Trading Co. v. Cook, 281 U.S. 647 (1930). 1629Western Union Telegraph Co. v. Chiles, 214 U.S. 274 (1909); Arlington

Hotel v. Fant, 278 U.S. 439 (1929); Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285 (1943). The Assimilative Crimes Act of 1948, 18 U.S.C. § 13,

making applicable to a federal enclave a subsequently enacted criminal law of the

State in which the enclave is situated entails no invalid delegation of legislative

power to the State. United States v. Sharpnack, 355 U.S. 286, 294, 296–297 (1958).

gress remains the legislature of the Union, so that it may give its

enactments nationwide operation to the extent necessary to make

them locally effective. 1620

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. 1621 It includes post offices, 1622 a hospital and a hotel located

in a national park, 1623 and locks and dams for the improvement

of navigation. 1624 But it does not cover lands acquired for forests,

parks, ranges, wild life sanctuaries or flood control. 1625 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. 1626

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. 1627 Private property

located thereon is not subject to taxation by the State, 1628 nor can

state statutes enacted subsequent to the transfer have any operation therein. 1629 But the local laws in force at the date of cession

that are protective of private rights continue in force until abro-
338 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 17—Federal Property

1630 Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 545 (1885); Stewart

& Co. v. Sadrakula, 309 U.S. 94 (1940). 1631 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). 1632Palmer v. Barrett, 162 U.S. 399 (1896). 1633 United States v. Unzeuta, 281 U.S. 138 (1930). 1634 Benson v. United States, 146 U.S. 325, 331 (1892). 1635Palmer v. Barrett, 162 U.S. 399 (1896). 1636S.R.A., Inc. v. Minnesota, 327 U.S. 558, 564 (1946).

gated by Congress. 1630 Moreover, as long as there is no interference with the exclusive jurisdiction of the United States, an area

subject thereto may be annexed by a municipality. 1631

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. 1632 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. 1633 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. 1634 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. 1635

The question arose whether the United States retains jurisdiction over a place, which was ceded to it unconditionally, after it has

abandoned the use of the property for governmental purposes and

entered into a contract for the sale thereof to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do

so. The majority assumed that ‘‘the Government’s unrestricted

transfer of property to nonfederal hands is a relinquishment of the

exclusive legislative power.’’ 1636 In separate concurring opinions,
ART. I—LEGISLATIVE DEPARTMENT 339

Sec. 8—Powers of Congress Cl. 18—Incidental Powers

1637 Id., 570, 571. 1638Fort Leavenworth R.R. Co. 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). 1639 United States v. Cornell, 25 Fed. Cas. 646, 649 (No. 14,867) (C.C.D.R.I.

1819). 1640 James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937). 1641Mason Co. v. Tax Comm. 302 U.S. 186 (1937). See also Atkinson v. Tax

Comm., 303 U.S. 20 (1938).

Chief Justice Stone and Justice Frankfurter reserved judgment on

the question of territorial jurisdiction. 1637

Reservation of Jurisdiction by States

For more than a century the Supreme Court kept alive, by repeated dicta, 1638 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.’’ 1639 But when the

issue was squarely presented in 1937, the Court ruled that where

the United States purchases property within a State with the consent of the latter, it is valid for the State to convey, and for the

United States to accept, ‘‘concurrent jurisdiction’’ over such land,

the State reserving to itself the right to execute process ‘‘and such

other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States.’’ 1640 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. 1641

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.

COEFFICIENT OR ELASTIC CLAUSE

Scope of Incidental Powers

That this clause is an enlargement, not a constriction, of the

powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those
340 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 18—Incidental Powers

1642 4 Wheat. (17 U.S.) 316 (1819). 1643 Id., 420. This decision had been clearly foreshadowed fourteen years earlier

by Marshall’s opinion in United States v. Fisher, 2 Cr. (6 U.S.) 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.’’ 1644Supra, pp. 73–89. 1645 Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252

U.S. 416 (1920). 1646Supra, pp. 165–167, 203–209. 1647Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S.

272, 281 (1856). 1648Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Fox, 94

U.S. 315, 320 (1877).

powers, was established by Marshall’s classic opinion in McCulloch

v. Maryland. 1642 ‘‘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.’’ 1643 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. 1644

Operation of Coefficient Clause

Practically every power of the National Government has been

expanded in some degree by the coefficient clause. Under its authority Congress has adopted measures requisite to discharge the

treaty obligations of the nation; 1645 it has organized the federal judicial system and has enacted a large body of law defining and

punishing crimes. Effective control of the national economy has

been made possible by the authority to regulate the internal commerce of a State to the extent necessary to protect and promote

interstate commerce. 1646 The right of Congress to utilize all known

and appropriate means for collecting the revenue, including the distraint of property for federal taxes, 1647 and its power to acquire

property needed for the operation of the Government by the exercise of the power of eminent domain, 1648 have greatly extended the

range of national power. But the widest application of the necessary and proper clause has occurred in the field of monetary and

fiscal controls. Inasmuch as the various specific powers granted by

Article I, § 8, do not add up to a general legislative power over such

matters, the Court has relied heavily upon this clause in sustaining
ART. I—LEGISLATIVE DEPARTMENT 341

Sec. 8—Powers of Congress Cl. 18—Incidental Powers

1649Supra., pp. 144–159. 1650 United States v. Fox, 95 U.S. 670, 672 (1978); United States v. Hall, 98 U.S.

343, 357 (1879); United States v. Worrall, 2 Dall. (2 U.S.) 384, 394 (1798);

McCulloch v. Maryland, 4 Wheat. (17 U.S.) 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 prescribe criminal penalties for infractions thereof. 1651 Ex parte Carll, 106 U.S. 521 (1883). 1652 United States v. Marigold, 9 How. (50 U.S.) 560, 567 (1850). 1653Logan v. United States, 144 U.S. 263 (1892). 1654 United States v. Barnow, 239 U.S. 74 (1915). 1655 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). 1656 Ex parte Curtis, 106 U.S. 371 (1882). 1657 18 U.S.C. § 2385. 1658See 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. 1659McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 407 (1819).

the comprehensive control which Congress has asserted over this

subject. 1649

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. 1650 Illustrative of the offenses which have been punished

under this power are the alteration of registered bonds, 1651 the

bringing of counterfeit bonds into the country, 1652 conspiracy to injure prisoners in custody of a United States marshal, 1653 impersonation of a federal officer with intent to defraud, 1654 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, 1655 the receipt by Government officials of contributions

from Government employees for political purposes, 1656 advocating

the overthrow of the Government by force. 1657 Part I of Title 18

of the United States Code comprises more than 500 sections defining penal offenses against the United States. 1658

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. 1659
342 ART. I—LEGISLATIVE DEPARTMENT

Sec. 8—Powers of Congress Cl. 18—Incidental Powers

1660Osborn v. United States Bank, 9 Wheat. (22 U.S.) 738, 862 (1824). See also

Pittman v. Home Owners’ Corp., 308 U.S. 21 (1939). 1661First National Bank v. Follows ex rel. Union Trust Co., 244 U.S. 416 (1917);

Missouri ex rel. Burnes National Bank v. Duncan, 265 U.S. 17 (1924). 1662Smith v. Kansas City Title Co., 255 U.S. 180 (1921). 1663Legal Tender Cases (Julliard v. Greenman), 110 U.S. 421, 449 (1884). 1664 Veazie Bank v. Fenno, 8 Wall. (75 U.S.) 533 (1869). 1665Legal Tender Cases (Julliard v. Greenman), 110 U.S. 421 (1884). See also

Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 457 (1871). 1666 Norman v. B. & O. R. Co., 294 U.S. 240, 303 (1935). 1667Pacific Railroad Removal Cases, 115 U.S. 1 (1885); California v. Pacific

Railroad Company, 127 U.S. 1, 39 (1888). 1668Luxton v. North River Bridge Co., 153 U.S. 525 (1894).

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. 1660 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. 1661 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. 1662

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 . . . ,’ ’’ 1663 have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of state banks, 1664 the issuance of treasury notes impressed with the quality of legal tender in payment of

private debts 1665 and the abrogation of clauses in private contracts, which called for payment in gold coin, 1666 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, 1667 or a corporation to construct an interstate bridge, 1668 as instrumentalities
ART. I—LEGISLATIVE DEPARTMENT 343

Sec. 8—Powers of Congress Cl. 18—Incidental Powers

1669 Clallam County v. United States, 263 U.S. 341 (1923). 1670Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922). 1671 Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 721 (1838). 1672Tennessee v. Davis, 100 U.S. 257, 263 (1880). 1673 Railway Company v. Whitton, 13 Wall. (80 U.S.) 270, 287 (1872). 1674 Embry v. Palmer, 107 U.S. 3 (1883). 1675 Bank of the United States v. Halstead, 10 Wheat. (23 U.S.) 51, 53 (1825). 1676 Express Company v. Kountze Brothers, 8 Wall. (75 U.S.) 342, 350 (1869). 1677 Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). But see Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 1678 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).

for promoting commerce among the States, and to create corporations to manufacture aircraft 1669 or merchant vessels 1670 as incidental to the war power.

Courts and Judicial Proceedings

Inasmuch as the Constitution ‘‘delineated only the great outlines of the judicial power . . . , leaving the details to Congress,

. . . [t]he distribution and appropriate exercise of the judicial power

must . . . be made by laws passed by Congress. . . .’’ 1671 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, 1672 and may authorize the removal before trial of civil cases arising under the laws of

the United States. 1673 It may prescribe the effect to be given to judicial proceedings of the federal courts 1674 and may make all laws

necessary for carrying into execution the judgments of federal

courts. 1675 When a territory is admitted as a State, Congress may

designate the court to which the records of the territorial courts

shall be transferred and may prescribe the mode for enforcement

and review of judgments rendered by those courts. 1676 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.’’ 1677

Special Acts Concerning Claims

This 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, 1678 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.
344 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 1—Importation of Slaves

1679Paramino Co. v. Marshall, 309 U.S. 370 (1940). 1680Pope v. United States, 323 U.S. 1 (1944). 1681Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934). 1682Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson & Co., 264 U.S. 219 (1924).

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 Longshoreman’s and

Harbor Workers’ Compensation Act, 1679 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. 1680

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. 1681 This power cannot be delegated to the States; hence,

acts of Congress that purported to make state workmen’s compensation laws applicable to maritime cases were held unconstitutional. 1682

SECTION 9. Clause 1. The Migration or Importation of such

Persons as any of the States now existing shall think proper to

admit, shall not be prohibited by the Congress prior to the Year

one thousand eight hundred and eight, but a Tax or duty may

be imposed on such Importation, not exceeding ten dollars for

each Person.

POWERS DENIED TO CONGRESS

General Purpose of Section 9

This section of the Constitution (containing eight clauses restricting or prohibiting legislation affecting the importation of

slaves, the suspension of the writ of habeas corpus, the enactment

of bills of attainder or ex post facto laws, the levying of taxes on

exports, the granting of preference to ports of one State over another, the granting of titles of nobility, et cetera) is devoted to restraints upon the power of Congress and of the National Govern-
ART. I—LEGISLATIVE DEPARTMENT 345

Sec. 9—Denied to Congress Cl. 2—Habeas Corpus

1683 Barron v. Baltimore, 7 Pet. (32 U.S.) 243 (1833); Morgan v. Louisiana, 118

U.S. 455, 467 (1886). 1684Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 400 (1886). 1685 19 How. (60 U.S.) 393, 411 (1857). 1686 R. WALKER, THE AMERICAN RECEPTION OF THE WRIT OF LIBERTY (Norman,

Okla.: 1961). 1687 Infra, discussion under Article III. 1688Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917). 1689 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 (New Haven: 1937),

213 (Luther Martin); 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 (Washington: 2d ed. 1836), 464

(Edmund Randolph). At the Convention, Gouverneur Morris proposed the language

of the present clause: the first section of the clause, down to ‘‘unless’’ was adopted

unanimously, but the second part, qualifying the prohibition on suspension was

adopted over the opposition of three States. 2 M. FARRAND, 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.

ment, 1683 and in no respect affects the States in the regulation of

their domestic affairs. 1684

The above clause, which sanctioned the importation of slaves

by the States for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to

be returned to their masters, Art. IV, § 1, cl. 3, was held by Chief

Justice Taney in Scott v. Sandford, 1685 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.

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 1686 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. 1687

Only the Federal Government and not the States, it has been

held obliquely, is limited by the clause. 1688 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. 1689 The clause itself does
346 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 3—Bills of Attainder

1690 Cf. Clauses 7, 8. 1691 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (New

Haven: rev. ed. 1937), 341. 1692 Id., 438. 1693 Ibid. 1694 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1336. 1695 Ex parte Bollman, 4 Cr. (8 U.S.) 75, 101 (1807). 1696 Cf. J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (Urbana: rev.

ed. 1951), 118–139. 1697 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). 1698 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). 1699The 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. 1700 4 Wall. (71 U.S.) 2, 130–131 (1866).

not specify, and while most of the clauses of 9 are directed at Congress not all of them are. 1690 At the Convention, the first proposal

of a suspending authority expressly vested ‘‘in the legislature’’ the

suspending power, 1691 but the author of this proposal did not retain this language when the matter was taken up, 1692 the present

language then being adopted. 1693 Nevertheless, Congress’ power to

suspend was assumed in early commentary 1694 and stated in dictum by the Court. 1695 President Lincoln suspended the privilege on

his own motion in the early Civil War period, 1696 but this met with

such opposition 1697 that he sought and received congressional authorization. 1698 Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress. 1699

When suspension operates, what is suspended? In Ex parte

Milligan, 1700 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.

Clause 3. No Bill of Attainder or ex post facto Law shall

be passed.
ART. I—LEGISLATIVE DEPARTMENT 347

Sec. 9—Denied to Congress Cl. 3—Bills of Attainder

1701 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1338. 1702 Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 323 (1867); cf. United States

v. Brown, 381 U.S. 437, 441–442, (1965). 1703 United States v. Brown, 381 U.S. 437, 442–446 (1965). Four dissenting Justices, however, denied that any separation of powers concept underlay the clause.

Id., 472–473. 1704 United States v. Lovett, 328 U.S. 303, 315 (1946). 1705For a rejection of the Court’s approach and a plea to adhere to the traditional concept, see id., 318 (Justice Frankfurter concurring). 1706 4 Wall. (71 U.S.) 333 (1867).

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.’’ 1701 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. 1702

The prohibition embodied in this clause is not to be strictly and

narrowly construed in the context of traditional forms but is to be

interpreted in accordance with the designs of the framers so as to

preclude trial by legislature, a violation of the separation of powers

concept. 1703 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. . . .’’ 1704 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. 1705 In Ex parte Garland, 1706 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 per-
348 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 3—Bills of Attainder

1707 Cummings v. Missouri, 4 Wall. (71 U.S.) 277 (1867). 1708 United States v. Lovett, 328 U.S. 303 (1946). 1709 381 U.S. 437 (1965). 1710The Court of Appeals had voided the statute as an infringement of First

Amendment expression and association rights, but the Court majority did not choose

to utilize this ground. 334 F. 2d 488 (9th Cir., 1964). However, in United States v.

Robel, 389 U.S. 258 (1967), a very similar statute making it unlawful for any member of a ‘‘Communist-action organization’’ to be employed in a defense facility was

struck down on First Amendment grounds and the bill of attainder argument was

ignored. 1711 United States v. Brown, 381 U.S. 437, 462 (1965) (Justices White, Clark,

Harlan, and Stewart dissenting). 1712 American Communications Assn. v. Douds, 339 U.S. 382 (1950).

sons before they could practice certain professions, 1707 were struck

down as legislative acts inflicting punishment on a specific group

the members of which had taken part in the rebellion and therefore

could not truthfully take the oath. The clause then lay unused until

1946 when the Court utilized it to strike down a rider to an appropriations bill forbidding the use of money appropriated therein to

pay the salaries of three named persons whom the House of Representatives wished discharged because they were deemed to be

‘‘subversive.’’ 1708

Then, in United States v. Brown, 1709 a sharply divided Court

held void as a bill of attainder a statute making it a crime for a

member of the Communist Party to serve as an officer or as an employee of a labor union. Congress could, Chief Justice Warren wrote

for the majority, under its commerce power, protect the economy

from harm by enacting a prohibition generally applicable to any

person who commits certain acts or possesses certain characteristics making him likely in Congress’ view to initiate political strikes

or other harmful deeds and leaving it to the courts to determine

whether a particular person committed the specified acts or possessed the specified characteristics; it was impermissible, however,

for Congress to designate a class of persons—members of the Communist Party—as being forbidden to hold union office. 1710 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. 1711 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, 1712 and although Chief Justice Warren distinguished the previous case from
ART. I—LEGISLATIVE DEPARTMENT 349

Sec. 9—Denied to Congress Cl. 3—Bills of Attainder

1713 Id., 413, 414, cited in United States v. Brown, 381 U.S. 437, 457–458 (1965). 1714 Id., 458–461. 1715 329 U.S. 441 (1947). 1716 12 U.S.C. § 78. 1717The Presidential Recordings and Materials Preservation Act, P.L. 93–526,

88 Stat. 1695 (1974), note following 44 U.S.C. § 2107. For an application of this statute, see Nixon v. Warner Communications, 435 U.S. 589 (1978). 1718 Nixon v. Administrator of General Services, 433 U.S. 425, 468–484 (1977).

Justice Stevens’ concurrence is more specifically directed to the facts behind the

statute than is the opinion of the Court, id., 484, and Justice White, author of the

dissent in Brown, merely noted he found the act nonpunitive. Id., 487. Chief Justice

Burger and Justice Rehnquist dissented. Id., 504, 536–545, 545. 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., 470 n. 31, 471 n. 34, while the dissent

quoted and relied on the opinion of the Court in Brown. Id., 538, 542.

Brown on the basis that the Court in the previous decision had

found the statute to be preventive rather than punitive, 1713 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, 1714 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. 1715 The statute there forbade any partner or

employee of a firm primarily engaged in underwriting securities

from being a director of a national bank. 1716 Chief Justice Warren

distinguished the prior decision and the statute on three grounds

from the statute then under consideration. First, the union statute

inflicted its deprivation upon the members of a suspect political

group in typical bill-of-attainder fashion, unlike the statute in

Agnew. Second, in the Agnew statute, Congress did not express a

judgment upon certain men or members of a particular group; it

rather concluded that any man placed in the two positions would

suffer a temptation any man might yield to. Third, Congress established in the Agnew statute an objective standard of conduct expressed in shorthand, which precluded persons from holding the

two positions.

Apparently withdrawing from the Brown analysis in upholding

a statute providing for governmental custody of documents and recordings accumulated during the tenure of former President

Nixon, 1717 the Court set out a rather different formula for deciding

bill of attainder cases. 1718 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
350 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 3—Ex Post Facto Laws

1719 Id., 472. Justice Stevens carried the thought further, although in the process he severely limited the precedential value of the decision. Id., 484. 1720 Id., 473–484. 1721South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). 1722 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1339. 1723 3 Dall. (3 U.S.) 386, 393 (1798). 1724 Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).

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. 1719 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. 1720 That is, the Court, looking ‘‘to its

terms, to the intent expressed by Members of Congress who voted

its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect,’’ concluded that the statute

served to further legitimate policies of preserving the availability

of evidence for criminal trials and the functioning of the adversary

legal system and in promoting the preservation of records of historical value, all in a way that did not and was not intended to punish

the former President.

The clause protects individual persons and groups who are vulnerable to nonjudicial determinations of guilt and does not apply

to a State; neither does a State have standing to invoke the clause

for its citizens against the Federal Government. 1721

Ex Post Facto Laws

Definition.—At the time the Constitution was adopted, 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.’’ 1722 But in the early

case of Calder v. Bull, 1723 the Supreme Court decided that the

phrase, as used in the Constitution, applied only to penal and

criminal statutes. But although it is inapplicable to retroactive legislation of any other kind, 1724 the constitutional prohibition may
ART. I—LEGISLATIVE DEPARTMENT 351

Sec. 9—Denied to Congress Cl. 3—Ex Post Facto Laws

1725 Burgess v. Salmon, 97 U.S. 381 (1878). 1726 Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798); Ex parte Garland, 4 Wall.

(71 U.S.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878). 1727 United States v. Powers, 307 U.S. 214 (1939). 1728 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). 1729 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867). 1730Murphy v. Ramsey, 114 U.S. 15 (1885). 1731Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585

(1913); Marcello v. Bonds, 349 U.S. 302 (1955). Justices Black and Douglas, reiterating in Lehman v. United States ex rel. Carson, 353 U.S. 685, 690–691 (1957), their

dissent from the premise that the ex post facto clause is directed solely to penal legislation, disapproved a holding that an immigration law, enacted in 1952, 8 U.S.C.

§ 1251, which authorized deportation of an alien who, in 1945, had acquired a status

of nondeportability under pre-existing law is valid. In their opinion, to banish, in

1957, an alien who had lived in the United States for almost 40 years, for an offense

committed in 1936, and for which he already had served a term in prison, was to

subject him to new punishment retrospectively imposed.

not be evaded by giving a civil form to a measure that is essentially

criminal. 1725 Every law, which makes criminal an act that was innocent when done, or which inflicts a greater punishment than the

law annexed to the crime when committed, is an ex post facto law

within the prohibition of the Constitution. 1726 A prosecution under

a temporary statute, which was extended before the date originally

set for its expiration, does not offend this provision even though it

is instituted subsequent to the extension of the statute’s duration

for a violation committed prior thereto. 1727 Since this provision has

no application to crimes committed outside the jurisdiction of the

United States against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is ex post

facto or not. 1728

What Constitutes Punishment.—An act of Congress that

prescribed as a qualification for practice before the federal courts

an oath that the attorney had not participated in the Rebellion was

found unconstitutional since it operated as a punishment for past

acts. 1729 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. 1730 A deportation law authorizing the Secretary of Labor to expel aliens for

criminal acts committed before its passage is not ex post facto since

deportation is not a punishment. 1731 For this reason, a statutory

provision 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
352 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 4—Direct Taxes

1732Flemming v. Nestor, 363 U.S. 603 (1960). 1733 Johannessen v. United States, 225 U.S. 227 (1912). 1734 Cook v. United States, 138 U.S. 157, 183 (1891). 1735 Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798). 1736 Hopt v. Utah, 110 U.S. 574, 589 (1884). 1737 157 U.S. 429, 573 (1895). 1738 J. MADISON, THE DEBATES IN THE FEDERAL CONVENTION of 1787 (G. Hunt

& J. Scott eds.) (Greenwood Press ed. 1970), 435. 1739 3 Dall. (3 U.S.) 171 (1796).

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. 1732 Likewise an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held

not to impose a punishment, but it was simply to deprive the alien

of his illgotten privileges. 1733

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. 1734 A law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid, 1735 but a statute which simply enlarges the class of persons who may be competent to testify in criminal cases is not ex post facto as applied to

a prosecution for a crime committed prior to its passage. 1736

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 this section 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.’’ 1737 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.’’ 1738 The first case to come before the Court on

this issue was Hylton v. United States, 1739 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
ART. I—LEGISLATIVE DEPARTMENT 353

Sec. 9—Denied to Congress Cl. 4—Direct Taxes

1740THE WORKS OF ALEXANDER HAMILTON, J. Hamilton ed. (New York: 1851),

845. ‘‘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.’’ 1741 4 ANNALS OF CONGRESS 730 (1794); 2 LETTERS AND OTHER WRITINGS OF

JAMES MADISON (Philadelphia: 1865), 14. 1742 3 Dall. (3 U.S.) 171, 177 (1796). 1743Pacific Insurance Company v. Soule, 7 Wall. (74 U.S.) 433 (1869). 1744 Veazie Bank v. Fenno, 8 Wall. (75 U.S.) 533 (1869). 1745Scholey v. Rew, 23 Wall. (90 U.S.) 331 (1875). 1746Springer v. United States, 102 U.S. 586 (1881). 1747 Id., 602.

to be let out for hire, or for the conveying of passengers. In a fictitious statement of facts, it was stipulated that the carriages involved in the case were kept exclusively for the personal use of the

owner and not for hire. The principal argument for the constitutionality of the measure was made by Hamilton, who treated it as

an ‘‘excise tax,’’ 1740 while Madison both on the floor of Congress

and in correspondence attacked it as ‘‘direct’’ and so void, inasmuch

as it was levied without apportionment. 1741 The Court, taking the

position that the direct tax clause constituted in practical operation

an exception to the general taxing powers of Congress, held that

no tax ought to be classified as ‘‘direct’’ which could not be conveniently apportioned, and on this basis sustained the tax on carriages

as one on their ‘‘use’’ and therefore an ‘‘excise.’’ Moreover, each of

the judges advanced the opinion that the direct tax clause should

be restricted to capitation taxes and taxes on land, or that at most,

it might cover a general tax on the aggregate or mass of things

that generally pervade all the States, especially if an assessment

should intervene, while Justice Paterson, who had been a member

of the Federal Convention, testified to his recollection that the

principal purpose of the provision had been to allay the fear of the

Southern States lest their Negroes and land should be subjected to

a specific tax. 1742

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; 1743 a tax on the circulating notes of state banks, 1744 an inheritance tax on real estate, 1745 and finally a general tax on incomes. 1746 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. 1747

Then, almost one hundred years after the Hylton case, the famous
354 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 4—Direct Taxes

1748 157 U.S. 429 (1895); 158 U.S. 601 (1895). 1749 28 Stat. 509, 553 (1894). 1750Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Knowlton v. Moore, 178

U.S. 41, 80 (1900). 1751 Nicol v. Ames, 173 U.S. 509 (1899). 1752Knowlton v. Moore, 178 U.S. 41 (1900). 1753Patton v. Brady, 184 U.S. 608 (1902). 1754 192 U.S. 363 (1904). 1755 Id., 370. 1756 192 U.S. 397 (1904). 1757 220 U.S. 107 (1911). 1758 240 U.S. 103 (1916).

case of Pollock v. Farmers’ Loan & Trust Co. 1748 arose under the

Income Tax Act of 1894. 1749 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,’’ 1750 it sustained as ‘‘excises’’ a tax on

sales on business exchanges, 1751 a succession tax which was construed to fall on the recipients of the property transmitted rather

than on the estate of the decedent, 1752 and a tax on manufactured

tobacco in the hands of a dealer, after an excise tax had been paid

by the manufacturer. 1753 Again, in Thomas v. United States, 1754

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.’’ 1755 On the same day, it ruled, in Spreckels Sugar Refining Co. v. McClain, 1756 that an exaction, denominated a special excise tax, imposed on the business of refining sugar and measured

by the gross receipts thereof, was in truth an excise and hence

properly levied by the rule of uniformity. The lesson of Flint v.

Stone Tracy Co. 1757 was the same. In the Flint case, what was in

form an income tax was sustained as a tax on the privilege of doing

business as a corporation, the value of the privilege being measured by the income, including income from investments. Similarly,,

in Stanton v. Baltic Mining Co., 1758 a tax on the annual production

of mines was held to be ‘‘independently of the effect of the oper-
ART. I—LEGISLATIVE DEPARTMENT 355

Sec. 9—Denied to Congress Cl. 4—Direct Taxes

1759 Id., 114. 1760 232 U.S. 261 (1914). 1761 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). 1762Phillips v. Dime Trust & S.D. Co., 284 U.S. 160 (1931). 1763Tyler v. United States, 281 U.S. 497 (1930). 1764Fernandez v. Wiener, 326 U.S. 340 (1945). 1765 Chase Nat. Bank v. United States, 278 U.S. 327 (1929); United States v.

Manufacturers Nat. Bank, 363 U.S. 194, 198–201 (1960). 1766 Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also Helvering v.

Bullard, 303 U.S. 297 (1938). 1767 Bromley v. McCaughn, 280 U.S. 124, 140 (1929).

ation of the Sixteenth Amendment . . . not a tax upon property as

such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations.’’ 1759

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. 1760 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.’’ 1761 This proposition being established, the Court had

no difficulty in deciding that the inclusion in the computation of

the estate tax of property held as joint tenants, 1762 or as tenants

by the entirety, 1763 or the entire value of community property

owned by husband and wife, 1764 or the proceeds of insurance upon

the life of the decedent, 1765 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.’’ 1766 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.’’ 1767

Miscellaneous.—The power of Congress to levy direct taxes is

not confined to the States represented in that body. Such a tax may

be levied in proportion to population in the District of Colum-
356 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 5—Export Duties

1768Loughborough v. Blake, 5 Wheat. (18 U.S.) 317 (1820). 1769De Treville v. Smalls, 98 U.S. 517, 527 (1879). 1770Turpin v. Burgess, 117 U.S. 504, 507 (1886). Cf. Almy v. California, 24 How.

(65 U.S.) 169, 174 (1861). 1771Dooley v. United States, 183 U.S. 151, 154 (1901). 1772 Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin v. Burgess, 117 U.S. 504,

507 (1886). 1773Spalding & Bros. v. Edwards, 262 U.S. 66 (1923). 1774Thompson v. United States, 142 U.S. 471 (1892). 1775Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper Co. v. Bowers, 266

U.S. 373 (1924). 1776Fairbank v. United States, 181 U.S. 283 (1901). 1777 United States v. Hvoslef, 237 U.S. 1 (1915). 1778Thames & Mersey Inc. Co. v. United States, 237 U.S. 19 (1915).

bia. 1768 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. 1769

Clause 5. No Tax or Duty shall be laid on Articles exported

from any State.

Taxes on Exports

This prohibition applies only to the imposition of duties on

goods by reason of exportation. 1770 The word ‘‘export’’ signifies

goods exported to a foreign country, not to an unincorporated territory of the United States. 1771 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. 1772 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. 1773 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. 1774 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. 1775

Stamp Taxes.—A stamp tax imposed on foreign bills of lading, 1776 charter parties, 1777 or marine insurance policies, 1778 was

in effect a tax or duty upon exports, and so void; but an act requiring the stamping of all packages of tobacco intended for export in
ART. I—LEGISLATIVE DEPARTMENT 357

Sec. 9—Denied to Congress Cl. 6—Preference to Ports

1779Pace v. Burgess, 92 U.S. 372 (1876); Turpin v. Burgess, 117 U.S. 504, 505

(1886). 1780Louisiana Pub. Serv. Comm. v. Texas & N.O.R. Co., 284 U.S. 125, 131

(1931); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 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. 1781Louisiana PSC v. Texas & N.O.R. Co., 284 U.S. 125, 132 (1931). 1782Passenger Cases (Smith v. Turner), 7 How. (48 U.S.) 282, 414 (1849) (opinion of Justice Wayne); cf. Cooley v. Port Wardens, 12 How. (53 U.S.) 299, 314 (1851). 1783Morgan 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). 1784 1 Stat. 53, 54, § 4 (1789). 1785Thompson v. Darden, 198 U.S. 310 (1905).

order to prevent fraud was held not to be forbidden as a tax on exports. 1779

Clause 6. No Preference shall be given by any Regulation

of Commerce or Revenue to the Ports of one State over those

of another: nor shall Vessels bound to, or from, one State, be

obliged to enter, clear, or pay duties in another.

The ‘‘No Preference’’ Clause

The limitations imposed by this section were designed to prevent preferences as between ports because of their location in different States. They do not forbid such discriminations as between

individual ports. Acting under the commerce clause, Congress may

do many things that benefit particular ports and which incidentally

result to the disadvantage of other ports in the same or neighboring States. It may establish ports of entry, erect and operate lighthouses, improve rivers and harbors, and provide structures for the

convenient and economical handling of traffic. 1780 A rate order of

the Interstate Commerce Commission which allowed an additional

charge to be made for ferrying traffic across the Mississippi to

cities on the east bank of the river was sustained over the objection

that it gave an unconstitutional preference to ports in Texas. 1781

Although there were a few early intimations that this clause was

applicable to the States as well as to Congress, 1782 the Supreme

Court declared emphatically in 1886 that state legislation was unaffected by it. 1783 After more than a century, the Court confirmed,

over the objection that this clause was offended, the power which

the First Congress had exercised 1784 in sanctioning the continued

supervision and regulation of pilots by the States. 1785
358 ART. I—LEGISLATIVE DEPARTMENT

Sec. 9—Denied to Congress Cl. 7—Payment of Claims

1786 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v.

United States, 95 U.S. 149, 154 (1877). 1787 United States v. Price, 116 U.S. 43 (1885); United States v. Realty Company, 163 U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 389, 393 (1899). 1788 Hart v. United States, 118 U.S. 62, 67 (1886). 1789 32 Stat. 388 (1902). 1790 Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937). 1791 Reeside v. Walker, 11 How. (52 U.S.) 272 (1851).

Clause 7. No Money shall be drawn from the Treasury but

in Consequence of Appropriations made by Law; and a regular

Statement and Account of the Receipts and Expenditures of all

public Money shall be published from time to time.

Appropriations

This clause is a limitation upon the power of the Executive Department and does not restrict Congress in appropriating moneys

in the Treasury. 1786 That body may recognize and pay a claim of

an equitable, moral, or honorary nature. When it directs a specific

sum to be paid to a certain person, neither the Secretary of the

Treasury nor any court has discretion to determine whether the

person is entitled to receive it. 1787 In making appropriations to pay

claims arising out of the Civil War, Congress could, the Court held,

lawfully provide that certain persons, i.e., those who had aided the

Rebellion, should not be paid out of the funds made available by

the general appropriation, but that such persons should seek relief

from Congress. 1788 The Court has also recognized that Congress

has a wide discretion with regard to the extent to which it shall

prescribe details of expenditures for which it appropriates funds

and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed

by designated government agencies. Citing as an example that act

of June 17, 1902, 1789 where all moneys received from the sale and

disposal of public lands in a large number of States and territories

were set aside as a special fund to be expended under the direction

of the Secretary of the Interior upon such projects as he determined to be practicable and advisable for the reclamation of arid

and semi-arid lands within those States and territories, the Court

declared: ‘‘The constitutionality of this delegation of authority has

never been seriously questioned.’’ 1790

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. 1791 Nor may a gov-
ART. I—LEGISLATIVE DEPARTMENT 359

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Alliances, etc.

1792OPM v. Richmond, 496 U.S. 414 (1990). 1793 United States v. Klein, 13 Wall. (80 U.S.) 128 (1872). 1794Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. United States,

155 U.S. 417, 427 (1894). 1795 Hart v. United States, 118 U.S. 62, 67 (1886). 1796 13 Ops. Atty. Gen. 538 (1871).

ernment employee, by erroneous advice to a claimant, bind the

United States through equitable estoppel principles to pay a claim

for which an appropriation has not been made. 1792

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, 1793 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. 1794 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. 1795

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 1871 the Attorney General of the United States ruled that:

‘‘A minister of the United States abroad is not prohibited by the

Constitution from rendering a friendly service to a foreign power,

even that of negotiating a treaty for it, provided he does not become an officer of that power . . . but the acceptance of a formal

commission, as minister plenipotentiary, creates an official relation

between the individual thus commissioned and the government

which in this way accredits him as its representative,’’ which is

prohibited by this clause of the Constitution. 1796

SECTION 10. 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 sil-
360 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Bills of Credit

1797Williams v. Bruffy, 96 U.S. 176, 183 (1878). 1798 14 Pet. (39 U.S.) 540 (1840). 1799 United States v. California, 332 U.S. 19 (1947). 1800 313 U.S. 69 (1941). 1801 Id., 78–79.

ver 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.

POWERS DENIED TO THE STATES

Treaties, Alliances, or Confederations

At the time of the Civil War, this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as

having any legal existence. 1797 Today, its practical significance lies

in the limitations which it implies upon the power of the States to

deal with matters having a bearing upon international relations. In

the early case of Holmes v. Jennison, 1798 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. Recently, the kindred idea that the responsibility for the conduct of foreign relations

rests exclusively with the Federal Government prompted the Court

to hold that, since the oil under the three mile marginal belt along

the California coast might well become the subject of international

dispute and since the ocean, including this three mile belt, is of

vital consequence to the nation in its desire to engage in commerce

and to live in peace with the world, the Federal Government has

paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area. 1799 In

Skiriotes v. Florida, 1800 the Court, on the other hand, ruled that

this clause did not disable Florida from regulating the manner in

which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice

Hughes declared; ‘‘When its action does not conflict with federal

legislation, the sovereign authority of the State over the conduct of

its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.’’ 1801

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 ordi-
ART. I—LEGISLATIVE DEPARTMENT 361

Sec. 10—Powers Denied to the States Cl. 1—Bills of Attainder

1802 Craig v. Missouri, 4 Pet. (29 U.S.) 410, 425 (1830); Byrne v. Missouri, 8 Pet.

(33 U.S.) 40 (1834). 1803 Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 269 (1885);

Chaffin v. Taylor, 116 U.S. 567 (1886). 1804 Houston & Texas Central Rd. v. Texas, 177 U.S. 66 (1900). 1805 Briscoe v. Bank of Kentucky, 11 Pet. (36 U.S.) 257 (1837). 1806Darrington v. Bank of Alabama, 13 How. (54 U.S.) 12, 15 (1851); Curran

v. Arkansas, 15 How. (56 U.S.) 304, 317 (1854). 1807 Briscoe v. Bank of Kentucky, 11 Pet. (36 U.S.) 257 (1837). 1808Woodruff v. Trapnall, 10 How. (51 U.S.) 190, 205 (1851). 1809Legal Tender Cases (Juilliard v. Greenman), 110 U.S. 421, 446 (1884). 1810Gwin v. Breedlove, 2 How. (43 U.S.) 29, 38 (1844). See also Griffin v.

Thompson, 2 How. (43 U.S.) 244 (1844). 1811Farmers & Merchants Bank v. Fed. Reserve Bank, 262 U.S. 649, 659

(1923).

nary purposes of society. It is immaterial whether the quality of

legal tender is imparted to such paper. Interest bearing certificates,

in denominations not exceeding ten dollars, which were issued by

loan offices established by the State of Missouri and made receivable in payment of taxes or other moneys due to the State, and in

payment of the fees and salaries of state officers, were held to be

bills of credit whose issuance was banned by this section. 1802 The

States are not forbidden, however, to issue coupons receivable for

taxes, 1803 nor to execute instruments binding themselves to pay

money at a future day for services rendered or money borrowed. 1804 Bills issued by state banks are not bills of credit; 1805 it

is immaterial that the State is the sole stockholder of the bank, 1806

that the officers of the bank were elected by the state legislature, 1807 or that the capital of the bank was raised by the sale of

state bonds. 1808

Legal Tender

Relying on this clause, which applies only to the States and not

to the Federal Government, 1809 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. 1810 Since, however, there is

nothing in the Constitution prohibiting a bank depositor from consenting when he draws a check that payment may be made by

draft, a state law providing that checks drawn on local banks

should, at the option of the bank, be payable in exchange drafts

was held valid. 1811

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
362 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Ex Post Facto Laws

1812 Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 323 (1867); Klinger v. Missouri, 13 Wall. (80 U.S.) 257 (1872); Pierce v. Carskadon, 16 Wall. (83 U.S.) 234,

239 (1873). 1813Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 722–723

(1951). Cf. Konigsberg v. State Bar of California, 366 U.S. 36, 47 n. 9 (1961). 1814De Veau v. Braisted, 363 U.S. 144, 160 (1960). Presumably, United States

v. Brown, 381 U.S. 437 (1965), does not qualify this decision. 1815 Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798); Watson v. Mercer, 8 Pet.

(33 U.S.) 88, 110 (1834); Baltimore and Susquehanna Railroad Co. v. Nesbit, 10

How. (51 U.S.) 395, 401 (1850); Carpenter v. Pennsylvania, 17 How. (58 U.S.) 456,

463 (1855); Loche v. New Orleans, 4 Wall. (71 U.S.) 172 (1867); Orr v. Gilman, 183

U.S. 278, 285 (1902); Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911). 1816 Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269

U.S. 167, 169–170 (1925)). Alternatively, the Court described the reach of the clause

as extending to laws that ‘‘alter the definition of crimes or increase the punishment

for criminal acts.’’ Id., 43. 1817Frank 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

that they had never given such aid, were held invalid as being bills

of attainder, as well as ex post facto laws. 1812

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. 1813 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.’’ 1814

Ex Post Facto Laws

Scope of the Provision.—This clause, like the cognate restriction imposed on the Federal Government by § 9, relates only to

penal and criminal legislation and not to civil laws that affect private rights adversely. 1815 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.’’ 1816 The bar is directed only against legislative action and does not touch erroneous

or inconsistent decisions by the courts. 1817 Even though a law is
ART. I—LEGISLATIVE DEPARTMENT 363

Sec. 10—Powers Denied to the States Cl. 1—Ex Post Facto Laws

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). 1818 Jachne v. New York, 128 U.S. 189, 190 (1888). 1819 Rooney v. North Dakota, 196 U.S. 319, 325 (1905). 1820 Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915). 1821Samuels v. McCurdy, 267 U.S. 188 (1925). 1822 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). 1823De Veau v. Braisted, 363 U.S. 144, 160 (1960). 1824 Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 316 (1867). 1825Pierce v. Carskadon, 16 Wall. (83 U.S.) 234 (1873). 1826Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of

Lindsey in Dobbert v. Florida, 432 U.S. 282, 298–301 (1977). 1827 Holden v. Minnesota, 137 U.S. 483, 491 (1890).

ex post facto and invalid as to crimes committed prior to its enactment, it is nonetheless valid as to subsequent offenses. 1818 If it

mitigates the rigor of the law in force at the time the crime was

committed, 1819 or if it merely penalizes the continuance of conduct

lawfully begun before its passage, the statute is not ex post facto.

Thus, measures penalizing the failure of a railroad to cut drains

through existing embankments 1820 or making illegal the continued

possession of intoxicating liquors which were lawfully acquired 1821

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 1822 or excluding convicted felons from waterfront union offices, unless pardoned or in receipt of a parole board’s good conduct certificate, 1823

may be enforced against a person convicted before the measures

were passed. But the test oath prescribed after the Civil War,

whereby office holders, teachers, or preachers were required to

swear that they had not participated in the Rebellion, was held invalid on the ground that it had no reasonable relation to fitness to

perform official or professional duties, but rather was a punishment for past offenses. 1824 A similar oath required of suitors in the

courts also was held void. 1825

Changes in Punishment.—Statutes that changed an indeterminate sentence law to require a judge to impose the maximum

sentence, whereas formerly he could impose a sentence between the

minimum and maximum, 1826 required criminals sentenced to

death to be kept thereafter in solitary confinement, 1827 or allowed

a warden to fix, within limits of one week, and keep secret the time
364 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Ex Post Facto Laws

1828Medley, Petitioner, 134 U.S. 160, 171 (1890). 1829Miller v. Florida, 482 U.S. 423 (1987). 1830Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. Massachusetts, 180 U.S.

311 (1901); Graham v. West Virginia, 224 U.S. 616 (1912). 1831Malloy v. South Carolina, 237 U.S. 180 (1915). 1832 Rooney v. North Dakota, 196 U.S. 319, 324 (1905). 1833 432 U.S. 282, 297–298 (1977). Justices Stevens, Brennan, and Marshall dissented. Id., 304. 1834Furman v. Georgia, 408 U.S. 238 (1972). The new law was sustained in

Proffitt v. Florida, 428 U.S. 242 (1976).

of execution, 1828 were held to be ex post facto as applied to offenses

committed prior to their enactment. Because it made more onerous

the punishment for crimes committed before its enactment, a law,

a law that altered sentencing guidelines to make it more likely the

sentencing authority would impose on a defendant a more severe

sentence than was previously likely and making it impossible for

the defendant to challenge the sentence was ex post facto as to one

who had committed the offense prior to the change. 1829 But laws

providing heavier penalties for new crimes thereafter committed by

habitual criminals, 1830 changing the punishment from hanging to

electrocution, fixing the place therefor in the penitentiary, and permitting the presence of a greater number of invited witnesses, 1831

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. 1832

In Dobbert v. Florida, 1833 the Court may have formulated a

new test for determining when a criminal statute vis-a-vis punishment is ex post facto. Defendant murdered two of his children; at

the time of the commission of the offenses, Florida law provided the

death penalty upon conviction for certain takings of life. Subsequent to the commission of the capital offenses, the Supreme Court

held laws similar to Florida’s unconstitutional to the extent that

death was a sentence under them, although convictions obtained

under the statutes were not to be overturned, 1834 and the Florida

Supreme Court voided its death penalty statutes on the authority

of the High Court decision. The Florida legislature then enacted a

new capital punishment law, which was sustained. Dobbert was

convicted and sentenced to death under the new law, which was

enacted after the commission of his offenses. The Court rejected the

ex post facto challenge to the sentence on the basis that whether

the old statute was constitutional or not, ‘‘it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The

statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree
ART. I—LEGISLATIVE DEPARTMENT 365

Sec. 10—Powers Denied to the States Cl. 1—Ex Post Facto Laws

1835 Id., 432 U.S., 297.

1836Gibson v. Mississippi, 162 U.S. 565, 590 (1896).

1837Gut v. Minnesota, 9 Wall. (76 U.S.) 35, 37 (1870). 1838Duncan v. Missouri, 152 U.S. 377 (1894). 1839Mallett v. North Carolina, 181 U.S. 589, 593 (1901). 1840Gibson v. Mississippi, 162 U.S. 565, 588 (1896). 1841 Beazell v. Ohio, 269 U.S. 167 (1925). 1842Thompson v. Missouri, 171 U.S. 380, 381 (1898). 1843 E.g., Duncan v. Missouri, 152 U.S. 377, 382–383 (1894); Malloy v. South

Carolina, 237 U.S. 180, 183 (1915); Beazell v. Ohio, 269 U.S. 167, 171 (1925). The

two cases decided on the basis of the distinction were Thompson v. Utah, 170 U.S.

343 (1898) (application to felony trial for offense committed before enactment of

change from 12-person jury to an eight-person jury void under clause), and Kring

v. Missouri, 107 U.S. 221 (1883) (as applied to a case arising before change, a law

abolishing a rule under which a guilty plea functioned as a acquittal of a more serious offense, so that defendant could be tried on the more serious charge, a violation

of the clause). 1844 Collins v. Youngblood, 497 U.S. 37, 44–52 (1990). In so doing, the Court

overruled Kring and Thompson v. Utah.

of culpability which the State ascribed to the act of murder.’’ 1835

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 in any event whether the fact situation will

occur often enough to make the principle applicable in very many

cases.

Changes in Procedure.—An accused person does not have a

right to be tried in all respects in accordance with the law in force

when the crime charged was committed. 1836 Laws shifting the

place of trial from one county to another, 1837 increasing the number of appellate judges and dividing the appellate court into divisions, 1838 granting a right of appeal to the State, 1839 changing the

method of selecting and summoning jurors, 1840 making separate

trials for persons jointly indicted a matter of discretion for the trial

court rather than a matter of right, 1841 and allowing a comparison

of handwriting experts 1842 have been sustained over the objection

that they were ex post facto. It was said or suggested in a number

of these cases, and two decisions were rendered precisely on the

basis, that the mode of procedure might be changed only so long

as the substantial rights of the accused were not curtailed. 1843 The

Court has now disavowed this position. 1844 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
366 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1845 Id., 44, 52. Youngblood upheld a Texas statute, as applied to a person committing an offense and tried before passage of the law, that authorized criminal

courts to reform an improper verdict assessing a punishment not authorized by law,

which had the effect of denying defendant a new trial to which he would have been

previously entitled. 1846Dodge v. Woolsey, 18 How. (59 U.S.) 331 (1856); Ohio & M. R. Co. v.

McClure, 10 Wall. (77 U.S.) 511 (1871); New Orleans Gas Co. v. Louisiana Light

Co., 115 U.S. 650 (1885); Bier v. McGehee, 148 U.S. 137, 140 (1893). 1847 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 v. City of Goldsboro, 232 U.S. 548

(1914); Cuyahoga Power Co. v. City of Akron, 240 U.S. 462 (1916). 1848 Ibid.; see also Grand Trunk Ry. v. Indiana R.R. Comm., 221 U.S. 400

(1911); Appleby v. Delaney, 271 U.S. 403 (1926). 1849 Central Land Company v. Laidley, 159 U.S. 103 (1895). See also N.O.

Water-Works Co. v. La. 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 G. & E. Ry. v.

South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. v. Flannagan, 263 U.S. 444

(1924). 1850 Jefferson Branch Bank v. Skelly, 1 Bl. (66 U.S.) 436, 443 (1862); Bridge Proprietors v. Hoboken Co., 1 Wall. (68 U.S.) 116, 145 (1863); Wright v. Nagle, 101 U.S.

791, 793 (1880); McGahey v. Virginia, 135 U.S. 662, 667 (1890); Scott v. McNeal,

154 U.S. 34, 35 (1894); Stearns v. Minnesota, 179 U.S. 223, 232–233 (1900);

Coombes v. Getz, 285 U.S. 434, 441 (1932); Atlantic Coast Line R. Co. v. Phillips,

332 U.S. 168, 170 (1947).

not implicated, regardless of the increase in the burden on a defendant. 1845

Obligation of Contracts

‘‘Law’’ Defined.—The term comprises statutes, constitutional

provisions, 1846 municipal ordinances, 1847 and administrative regulations having the force and operation of statutes. 1848 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. 1849 Nevertheless, there are important exceptions to this rule that are hereinafter set forth.

Status of Judicial Decision.—While the highest state court

usually has final authority in determining the construction as well

as the validity of contracts entered into under the laws of the

State, and the national courts will be bound by their decision of

such matters, nevertheless, for reasons that are fairly obvious, this

rule does not hold when the contract is one whose obligation is alleged to have been impaired by state law. 1850 Otherwise, the chal-
ART. I—LEGISLATIVE DEPARTMENT 367

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1851McCullough v. Virginia, 172 U.S. 102 (1898); Houston & Texas Central R.

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).

1852State Bank of Ohio v. Knoop, 16 How. (57 U.S.) 369 (1854), and Ohio Life

Insurance and Trust Co. v. Debolt, 16 How. (57 U.S.) 416 (1854) are the leading

cases. See also Jefferson Branch Bank v. Skelly, 1 Bl. (66 U.S.) 436 (1862); Louisiana v. Pilsbury, 105 U.S. 278 (1882); McGahey v. Virginia, 135 U.S. 662 (1890); Mobile & Ohio Railroad v. Tennessee, 153 U.S. 486 (1894); Bacon v. Texas, 163 U.S.

207 (1896); McCullough v. Virginia, 172 U.S. 102 (1898).

1853Gelpcke v. Dubuque, 1 Wall. (68 U.S.) 175, 206 (1865); Havemayer v. Iowa

County, 3 Wall. (70 U.S.) 294 (1866); Thomson v. Lee County, 3 Wall. (70 U.S.) 327

(1866); The City v. Lamson, 9 Wall. (76 U.S.) 477 (1870); Olcott v. The Supervisors,

16 Wall. (83 U.S.) 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).

lenged state authority could be vindicated through the simple device of a modification or outright nullification by the state court of

the contract rights in issue. Similarly, the highest state court usually has final authority in construing state statutes and determining their validity in relation to the state constitution. But this rule

too has had to bend to some extent to the Supreme Court’s interpretation of the obligation of contracts clause. 1851

Suppose the following situation: (1) a municipality, acting

under authority conferred by a state statute, has issued bonds in

aid of a railway company; (2) the validity of this statute has been

sustained by the highest state court; (3) later the state legislature

passes an act to repeal certain taxes to meet the bonds; (4) it is

sustained in doing so by a decision of the highest state court holding that the statute authorizing the bonds was unconstitutional ab

initio. In such a case the Supreme Court would take an appeal

from the state court and would reverse the latter’s decision of unconstitutionality because of its effect in rendering operative the act

to repeal the tax. 1852

Suppose further, however, that the state court has reversed itself on the question of the constitutionality of the bonds in a suit

by a creditor for payment without there having been an act of repeal. In this situation, the Supreme Court would still afford relief

if the case is one between citizens of different States, which reaches

it via a lower federal court. 1853 This is because in cases of this nature the Court formerly felt free to determine questions of fundamental justice for itself. Indeed, in such a case, the Court has

apparently in the past regarded itself as free to pass upon the constitutionality of the state law authorizing the bonds even though

there has been no prior decision by the highest state court sustaining them, the idea being that contracts entered into simply on the
368 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1854Great Southern Hotel Co. v. Jones, 193 U.S. 532, 548 (1904). 1855Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New York & Harlem

Railroad Co., 197 U.S. 544, 570 (1905).

faith of the presumed constitutionality of a state statute are entitled to this protection. 1854

In other words, in cases of which it has jurisdiction because of

diversity of citizenship, the Court has held that the obligation of

contracts is capable of impairment by subsequent judicial decisions

no less than by subsequent statutes and that it is able to prevent

such impairment. In cases, on the other hand, of which it obtains

jurisdiction only on the constitutional ground and by appeal from

a state court, it has always adhered in terms to the doctrine that

the word ‘‘laws’’ as used in Article I, § 10, does not comprehend judicial decisions. Yet even in these cases, it will intervene to protect

contracts entered into on the faith of existing decisions from an impairment that is the direct result of a reversal of such decisions,

but there must be in the offing, as it were, a statute of some kind—

one possibly many years older than the contract rights involved—

on which to pin its decision. 1855

In 1922, Congress, through an amendment to the Judicial

Code, endeavored to extend the reviewing power of the Supreme

Court to suits involving ’’. . . the validity of a contract wherein it

is claimed that a change in the rule of law or construction of statutes by the highest court of a State applicable to such contract

would be repugnant to the Constitution of the United States. . . .’’

This appeared to be an invitation to the Court to say frankly that

the obligation of a contract can be impaired as well by a subsequent decision as by a subsequent statute. 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 adherent decisions, Chief Justice

Taft said: ‘‘These cases were not writs of error to the Supreme

Court of a State. They were appeals or writs of error to federal

courts where recovery was sought upon municipal or county bonds

or some other form of contracts, the validity of which had been sustained by decisions of the Supreme Court of a State prior to their

execution, and had been denied by the same court after their issue

or making. In such cases the federal courts exercising jurisdiction

between citizens of different States held themselves free to decide

what the state law was, and to enforce it as laid down by the state

Supreme Court before the contracts were made rather than in later

decisions. They did not base this conclusion on Article I, § 10, of the

Federal Constitution, but on the state law as they determined it,
ART. I—LEGISLATIVE DEPARTMENT 369

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1856Tidal Oil Company v. Flanagan, 263 U.S. 444, 450, 451–452 (1924). 1857 304 U.S. 64 (1938). 1858Walker v. Whitehead, 16 Wall. (83 U.S.) 314 (1873); Wood v. Lovett, 313

U.S. 362, 370 (1941). 1859 4 Wheat. (17 U.S.) 122, 197 (1819); see also Curran v. Arkansas, 15 How.

(56 U.S.) 304 (1854). 1860 4 Wheat. (17 U.S.) 518 (1819). 1861 Id., 627. 1862 290 U.S. 398 (1934).

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).’’ 1856 While doubtless this was an available explanation in 1924, the decision in 1938 in Erie Railroad Co.

v. Tompkins, 1857 so cut down the power of the federal courts to decide diversity of citizenship cases according to their own notions of

‘‘general principles of common law’’ as to raise the question whether the Court will not be required eventually to put Gelpcke and its

companions and descendants squarely on the obligation of contracts

clause or else abandon them.

‘‘Obligation’’ Defined.—A contract is analyzable into two elements: the agreement, which comes from the parties, and the obligation, which comes from the law and makes the agreement binding on the parties. The concept of obligation is an importation from

the Civil Law and its appearance in the contracts clause is supposed to have been due to James Wilson, a graduate of Scottish

universities and a Civilian. Actually, the term as used in the contracts clause has been rendered more or less superfluous by the

doctrine that the law in force when a contract is made enters into

and comprises a part of the contract itself. 1858 Hence, the Court

sometimes recognizes the term in its decisions applying the clause,

sometimes ignores it. In Sturges v. Crowninshield, 1859 Marshall defined ‘‘obligation of contract’’ as ‘‘the law which binds the parties

to perform their agreement;’’ but a little later the same year he

sets forth the points presented for consideration in Dartmouth College v. Woodward, 1860 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?’’ 1861 The word ‘‘obligation’’ undoubtedly does carry the implication that the Constitution was intended to protect only executory contracts—i.e., contracts still

awaiting performance, but this implication was early rejected for a

certain class of contracts, with immensely important result for the

clause.

‘‘Impair’’ Defined.—‘‘The obligations of a contract,’’ says

Chief Justice Hughes for the Court in Home Building & Loan Assn.

v. Blaisdell, 1862 ‘‘are impaired by a law which renders them in-
370 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1863 Id., 431.

1864 Id., 435. And see City of El Paso v. Simmons, 379 U.S. 497 (1965).

1865 ‘‘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).

1866 Crane v. Hahlo, 258 U.S. 142, 145–146 (1922); Louisiana ex rel. Folsom v.

Mayor of New Orleans, 109 U.S. 285, 288 (1883); Morley v. Lake Shore Railway Co.,

146 U.S. 162, 169 (1892). That the obligation of contracts clause did not protect

vested rights merely as such was stated by the Court as early as Satterlee v.

Matthewson, 2 Pet. (27 U.S.) 380, 413 (1829); and again in Charles River Bridge

v. Warren Bridge, 11 Pet. (36 U.S.) 420, 539–540 (1837).

1867Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518, 629 (1819).

valid, or releases or extinguishes them . . ., and impairment . . .

has been predicated upon laws which without destroying contracts

derogate from substantial contractual rights.’’ 1863 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.’’ 1864 In short,

the law from which the obligation stems must be understood to include constitutional law and, moreover a ‘‘progressive’’ constitutional law. 1865

Vested Rights Not Included.—The term ‘‘contracts’’ is used

in the contracts clause in its popular sense of an agreement of

minds. The clause therefore does not protect vested rights that are

not referable to such an agreement between the State and an individual, such as the right of recovery under a judgment. The individual in question may have a case under the Fourteenth Amendment, but not one under Article I, § 10. 1866

Public Grants That Are Not ‘‘Contracts’’.—Not all grants

by a State constitute ‘‘contracts’’ within the sense of Article I, § 10.

In his Dartmouth College decision, Chief Justice Marshall conceded

that ‘‘if the act of incorporation be a grant of political power, if it

creates a civil institution, to be employed in the administration of

the government . . . the subject is one in which the legislature of

the State may act according to its own judgment,’’ unrestrained by

the Constitution 1867—thereby drawing a line between ‘‘public’’ and
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1868 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, the power of the State to regulate which is larger than in the case of a purely

private corporation. Inasmuch as most corporations receiving public franchises are

of this character, the final result of Munn was to enlarge the police power of the

State in the case of the most important beneficiaries of the Dartmouth College decision.1869Meriwether v. Garrett, 102 U.S. 472 (1880); Covington v. Kentucky, 173

U.S. 231 (1899); Hunter v. Pittsburgh, 207 U.S. 161 (1907). 1870 East Hartford v. Hartford Bridge Co., 10 How. (51 U.S.) 511 (1851); Hunter

v. Pittsburgh, 207 U.S. 161 (1907). 1871 City of Trenton v. New Jersey 262 U.S. 182, 191 (1923). 1872 Newton v. Commissioners, 100 U.S. 548 (1880). 1873Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905). 1874Faitoute Co. v. City of Asbury Park, 316 U.S. 502 (1942).

‘‘private’’ corporations that remained undisturbed for more than

half a century. 1868

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. 1869 The same principle applies, moreover, to the property rights which the municipality derives either directly or indirectly from the State. This was first held as to the grant of a franchise to a municipality to operate a ferry and has since then been

recognized as the universal rule. 1870 It was stated in a case decided in 1923 that the distinction between the municipality as an

agent of the State for governmental purposes and as an organization to care for local needs in a private or proprietary capacity,

while it limited the legal liability of municipalities for the negligent

acts or omissions of its officers or agents, did not, on the other

hand, furnish ground for the application of constitutional restraints

against the State in favor of its own municipalities. 1871 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. 1872 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. 1873 Nor was

the contracts clause violated by state legislation authorizing state

control over insolvent communities through a Municipal Finance

Commission. 1874

On the same ground of public agency, neither appointment nor

election to public office creates a contract in the sense of Article I,
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1875 Butler v. Pennsylvania, 10 How. (51 U.S.) 402 (1850); Fisk v. Jefferson Policy 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). 1876 Butler v. Pennsylvania, 10 How. (51 U.S.) 420 (1850). Cf. Marbury v. Madison, 1 Cr. (5 U.S.) 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). 1877Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Mississippi ex rel. Robertson v. Miller, 276 U.S. 174 (1928). 1878 Hall v. Wisconsin, 103 U.S. 5 (1880). Cf. Higginbotham v. City of Baton

Rouge, 306 U.S. 535 (1930). 1879Phelps v. Board of Education, 300 U.S. 319 (1937). 1880Dodge v. Board of Education, 302 U.S. 74 (1937). 1881 Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938).

§ 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. 1875 Indeed, there can

be no such thing in this country as property in office, although the

common law sustained a different view that sometimes found reflection in early cases. 1876 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. 1877

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. 1878 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. 1879 Similarly, it was held that an Illinois statute that reduced the annuity payable to retired teachers

under an earlier act did not violate the contracts clause, since it

had not been the intention of the earlier act to propose a contract

but only to put into effect a general policy. 1880 On the other hand,

the right of one, who had become a ‘permanent teacher’’ under the

Indiana Teachers Tenure Act of 1927, to continued employment

was held to be contractual and to have been impaired by the repeal

in 1933 of the earlier act. 1881

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
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1882 7 Cr. (11 U.S.) 164 (1812). 1883The Delaware Railroad Tax, 18 Wall. (85 U.S.) 206, 225 (1874); Pacific Railroad Company v. Maguire, 20 Wall. (87 U.S.) 36, 43 (1874); Humphrey v. Pegues,

16 Wall. (83 U.S.) 244, 249 (1873); Home of the Friendless v. Rouse, 8 Wall. (75

U.S.) 430, 438 (1869). 1884 16 How. (57 U.S.) 369 (1854). 1885 Id., 382–383. 1886Salt Company v. East Saginaw, 13 Wall. (80 U.S.) 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. Co. 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.

account of the doctrine of presumed consideration mentioned earlier, this has not always been easy to do. In pursuance of the precedent set in New Jersey v. Wilson, 1882 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. 1883 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, 1884 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.’’ 1885 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,’’

said the Court, ‘‘held out to all persons indiscriminately, to engage

in a particular trade or manufacture, whether such encouragement

be in the shape of bounties or drawbacks, or other advantage, are

always under the legislative control, and may be discontinued at

any time.’’ 1886 So far as exemption from taxation is concerned the

difference between these two cases is obviously slight, but the later
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1887See Rector of Christ Church, Phila. v. County of Philadelphia, 24 How. (65

U.S.) 300, 302 (1861); Seton Hall College v. South Orange, 242 U.S. 100 (1916). 1888 Compare the above cases with Home of the Friendless v. Rouse, 8 Wall. (75

U.S.) 430, 437 (1869); Illinois Central Railroad v. Decatur, 147 U.S. 190 (1893), with

Wisconsin & Michigan Ry. Co. v. Powers, 191 U.S. 379 (1903). 1889 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, (Boston: 1938), 95.

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 (New Haven: rev. ed. 1937), 548;

THE FEDERALIST, No. 44 (J. Cooke ed. 1961), 301–302.

one is unquestionable authority for the proposition that legislative

bounties are repealable at will.

Furthermore, exemptions from taxation have in certain cases

been treated as gratuities repealable at will, even when conferred

by specific legislative enactments. This would seem always to be

the case when the beneficiaries were already in existence when the

exemption was created and did nothing of a more positive nature

to qualify for it than to continue in existence. 1887 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. 1888

‘‘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. 1889 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 Wilson may

have been responsible for both alterations, inasmuch as two years

earlier he had denounced a current proposal to repeal the Bank of

North America’s Pennsylvania charter in the following words: ‘‘If

the act for incorporating the subscribers to the Bank of North

America shall be repealed in this manner, every precedent will be

established for repealing, in the same manner, every other legisla-
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1890 2 THE WORKS OF JAMES WILSON, R. McCloskey ed. (Cambridge: 1967), 834. 1891 2 Dall. (2 U.S.) 419 (1793). 1892Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 338 (1827). 1893 6 Cr. (10 U.S.) 87 (1810).

tive charter in Pennsylvania. A pretence, as specious as any that

can be alleged on this occasion, will never be wanting on any future

occasion. Those acts of the state, which have hitherto been considered as the sure anchors of privilege and of property, will become

the sport of every varying gust of politicks, and will float wildly

backwards and forwards on the irregular and impetuous tides of

party and faction.’’ 1890

Furthermore, in its first important constitutional case, that of

Chisholm v. Georgia, 1891 the Court ruled that its original jurisdiction extended to an action in assumpsit brought by a citizen of

South Carolina against the State of Georgia. This construction of

the federal judicial power was, to be sure, promptly repealed by the

Eleventh Amendment, but without affecting the implication that

the contracts protected by the Constitution included public contracts.

One important source of this diversity of opinion is to be found

in that ever welling spring of constitutional doctrine in early days,

the prevalence of natural law notions and the resulting vague significance of the term ‘‘law.’’ In Sturges v. Crowninshield, Marshall

defined the obligation of contracts as ‘‘the law which binds the parties to perform their undertaking.’’ Whence, however, comes this

law? If it comes from the State alone, which Marshall was later to

deny even as to private contracts, 1892 then it is hardly possible to

hold that the States’ own contracts are covered by the clause,

which manifestly does not create an obligation for contracts but

only protects such obligation as already exists. But, if, on the other

hand, the law furnishing the obligation of contracts comprises Natural Law and kindred principles, as well as law which springs from

state authority, then, inasmuch as the State itself is presumably

bound by such principles, the State’s own obligations, so far as harmonious with them, are covered by the clause.

Fletcher v. Peck, 1893 has the double claim to fame in that it

was the first case in which the Supreme Court held a state enactment to be in conflict with the Constitution, and also the first case

to hold that the contracts clause protected public grants. By an act

passed on January 7, 1795, the Georgia Legislature directed the

sale to four land companies of public lands comprising most of

what are now the States of Alabama and Mississippi. As soon became known, the passage of the measure had been secured by open

and wholesale bribery. So when a new legislature took over in the
376 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1894 B. WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION (Boston: 1938),

22. Professor Wright dates Hamilton’s pamphlet, 1796.

winter of 1795–1796, almost its first act was to revoke the sale

made the previous year.

Meantime, however, the land companies had disposed of several millions of acres of their holdings to speculators and prospective settlers, and following the rescinding act some of these took

counsel with Alexander Hamilton as to their rights. In an opinion

which was undoubtedly known to the Court when it decided Fletcher v. Peck, Hamilton characterized the repeal as contravening ‘‘the

first principles of natural justice and social policy,’’ especially so far

as it was made ‘‘to the prejudice . . . of third persons . . . innocent

of the alleged fraud or corruption; . . . moreover,’’ he added, ‘‘the

Constitution of the United States, article first, section tenth, declares that no State shall pass a law impairing the obligations of

contract. This must be equivalent to saying no State shall pass a

law revoking, invalidating, or altering a contract. Every grant from

one to another, whether the grantor be a State or an individual,

is virtually a contract that the grantee shall hold and enjoy the

thing granted against the grantor, and his representatives. It,

therefore, appears to me that taking the terms of the Constitution

in their large sense, and giving them effect according to the general

spirit and policy of the provisions, the revocation of the grant by

the act of the legislature of Georgia may justly be considered as

contrary to the Constitution of the United States, and, therefore

null. And that the courts of the United States, in cases within their

jurisdiction, will be likely to pronounce it so.’’ 1894 In the debate to

which the ‘‘Yazoo Land Frauds,’’ as they were contemporaneously

known, gave rise in Congress, Hamilton’s views were quoted frequently.

So far as it invoked the obligation of contracts clause, Marshall’s opinion in Fletcher v. Peck performed two creative acts. He

recognized that an obligatory contract was one still to be performed—in other words, was an executory contract, also that a

grant of land was an executed contract—a conveyance. But, he asserted, every grant is attended by ‘‘an implied contract’’ on the part

of the grantor not to claim again the thing granted. Thus, grants

are brought within the category of contracts having continuing obligation and so within Article I, § 10. But the question still remained

of the nature of this obligation. Marshall’s answer to this can only

be inferred from his statement at the end of his opinion. The State

of Georgia, he says, ‘‘was restrained’’ from the passing of the rescinding act ‘‘either by general principles which are common to our
ART. I—LEGISLATIVE DEPARTMENT 377

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1895 6 Cr. (10 U.S.) 87, 139 (1810). Justice Johnson, in his concurring opinion,

relied exclusively on general principles. ‘‘I do not hesitate to declare, that a State

does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even

on the Deity.’’ Id., 143. 1896 7 Cr. (11 U.S.) 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). 1897Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518 (1819). 1898 379 U.S. 497 (1965). See also Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 278–279 (1969).

free institutions, or by particular provisions of the Constitution of

the United States.’’ 1895

The protection thus thrown about land grants was presently

extended, in the case of New Jersey v. Wilson, 1896 to a grant of immunity from taxation that the State of New Jersey had accorded

certain Indian lands, and several years after that, in the Dartmouth College case, 1897 to the charter privileges of an eleemosynary corporation.

In City of El Paso v. Simmons, 1898 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
378 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1899 In 1806 Chief Justice Parsons of the Supreme Judicial Court of Massachusetts, without mentioning the contracts clause, declared that rights legally vested

in a corporation cannot be ‘‘controlled of destroyed by a subsequent statute, unless

a power [for that purpose] be reserved to the legislature in the act of incorporation,’’

Wales v. Stetson, 2 Mass. 142 (1806). See also Stoughton v. Baker, 4 Mass. 521

(1808) to like effect; cf. Locke v. Dane, 9 Mass. 360 (1812) in which it is said that

the purpose of the contracts clause was to provide against paper money and insolvent laws. Together these holdings add up to the conclusion that the reliance of the

Massachusetts court was on ‘‘fundamental principles,’’ rather than the contracts

clause. 1900 4 Wheat. (17 U.S.), 577–595 (Webster’s argument); id., 666 (Story’s opinion).

See also Story’s opinion for the Court in Terrett v. Taylor, 9 Cr. (13 U.S.) 43 (1815). 1901 4 Wheat. (17 U.S.) 518 (1819). 1902 Id., 627.

state courts did regard them at the outset. 1899 It is also the way

in which Blackstone regarded them in relation to the royal prerogative, although not in relation to the sovereignty of Parliament, and

the same point of view found expression in Story’s concurring opinion in Dartmouth College v. Woodward, as it did also in Webster’s

argument in that case. 1900

The third view is the one formulated by Chief Justice Marshall

in his controlling opinion in Dartmouth College v. Woodward. 1901

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. 1902 Taking this view, which he developed with great ingenuity and persuasiveness, Marshall was able

to appeal to the obligation of contracts clause directly, and without

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,
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1903 Id., 637; see also Home of the Friendless v. Rouse, 8 Wall. (75 U.S.) 430,

437 (1869). 1904 4 Pet. (29 U.S.) 514 (1830). 1905 11 Pet. (36 U.S.) 420 (1837). 1906Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518, 712 (1819) (Justice Story). 1907 Home of the Friendless v. Rouse, 8 Wall. (75 U.S.) 430, 438 (1869); Pennsylvania College Cases, 13 Wall. (80 U.S.) 190, 213 (1872); Miller v. New York, 15

Wall. (82 U.S.) 478 (1873); Murray v. Charleston, 96 U.S. 432 (1878); Greenwood

v. Freight Co., 105 U.S. 13 (1882); Chesapeake & Ohio Railway Co. v. Miller, 114

U.S. 176 (1885); Louisville Water Company v. Clark, 143 U.S. 1 (1892). 1908 New Jersey v. Yard, 95 U.S. 104, 111 (1877). 1909See Holyoke Company v. Lyman, 15 Wall. (82 U.S.) 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.

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. 1903 With this doctrine before it, the

Court in Providence Bank v. Billings, 1904 and again in Charles

River Bridge v. Warren Bridge, 1905 admitted, without discussion of

the point, the applicability of the Dartmouth College decision to

purely business concerns.

Reservation of Right to Alter or Repeal Corporate Charters.—It is next in order to consider four principles or doctrines

whereby the Court has itself broken down the force of the Dartmouth College decision in great measure in favor of state legislative

power. By the logic of the Dartmouth College decision itself, the

State may reserve in a corporate charter the right to ‘‘amend, alter,

and repeal’’ the same, and such reservation becomes a part of the

contract between the State and the incorporators, the obligation of

which is accordingly not impaired by the exercise of the right. 1906

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. 1907

There is, however, a difference between a reservation by a statute

and one by constitutional provision. While the former may be repealed as to a subsequent charter by the specific terms thereof, the

latter may not. 1908

Is the right reserved by a State to ‘‘amend’’ or ‘‘alter’’ a charter

without restriction? When it is accompanied, as it generally is, by

the right to ‘‘repeal,’’ one would suppose that the answer to this

question was self-evident. Nonetheless, there are a number of judicial dicta to the effect that this power is not without limit, that it

must be exercised reasonably and in good faith, and that the alterations made must be consistent with the scope and object of the

grant. 1909 Such utterances amount, apparently, to little more than
380 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1910See 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). 1911 Curran v. Arkansas, 15 How. (56 U.S.) 304 (1853); Shields v. Ohio, 95 U.S.

319 (1877); Greenwood v. Freight Co., 105 U.S. 13 (1882); Adirondack Railway Co.

v. New York, 176 U.S. 335 (1900); Stearns v. Minnesota, 179 U.S. 223 (1900); Chicago, M. & St. P. R. v. Wisconsin, 238 U.S. 491 (1915); Coombes v. Getz, 285 U.S.

434 (1932). 1912Pennsylvania College Cases, 13 Wall. (80 U.S.) 190, 218 (1872). See also

Calder v. Michigan, 218 U.S. 591 (1910). 1913Lake Shore & Michigan Southern Railway Co. 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. 1914 4 Pet. (29 U.S.) 514 (1830).

an anchor to windward, for while some of the state courts have applied tests of this nature to the disallowance of legislation, it does

not appear that the Supreme Court of the United States has ever

done so. 1910

Quite different is it with the distinction pointed out in the

cases between the franchises and privileges that a corporation derives from its charter and the rights of property and contract that

accrue to it in the course of its existence. Even the outright repeal

of the former does not wipe out the latter or cause them to escheat

to the State. The primary heirs of the defunct organization are its

creditors, but whatever of value remains after their valid claims

are met goes to the former shareholders. 1911 By the earlier weight

of authority, on the other hand, persons who contract with companies whose charters are subject to legislative amendment or repeal

do so at their own risk; any ‘‘such contracts made between individuals and the corporation do not vary or in any manner change or

modify the relation between the State and the corporation in respect to the right of the State to alter, modify, or amend such a

charter. . . .’’ 1912 But later holdings becloud this rule. 1913

Corporation Subject to the Law and Police Power.—But

suppose the State neglects to reserve the right to amend, alter, or

repeal—is it, then, without power to control its corporate creatures?

By no means. Private corporations, like other private persons, are

always presumed to be subject to the legislative power of the State,

from which it follows that immunities conferred by charter are to

be treated as exceptions to an otherwise controlling rule. This principle was recognized by Chief Justice Marshall in the case of Providence Bank v. Billings, 1914 in which he held that in the absence

of express stipulation or reasonable implication to the contrary in

its charter, the bank was subject to the taxing power of the State,

notwithstanding that the power to tax is the power to destroy.

And of course the same principle is equally applicable to the

exercise by the State of its police powers. Thus, in what was per-
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1915Thorpe v. Rutland & Burlington R. Company, 27 Vt. 140 (1854). 1916Thus 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. Railroad v. Bristol, 151 U.S. 556 (1894), to make highway crossings

reasonably safe and convenient for public use, Great Northern Ry. Co. v. Minnesota

ex rel. Clara City, 246 U.S. 434 (1918), to repair viaducts, Northern Pacific Railway

v. Duluth, 208 U.S. 583 (1908), and to fence its right of way, Minneapolis & St. L.

Ry. v. Emmons, 149 U.S. 364 (1893). Though a railroad company owns the right of

way along a street, the city may require it to lay tracks to conform to the established grade; to fill in tracks at street intersections; and to remove tracks from a

busy street intersection, when the attendant disadvantage and expense are small

and the safety of the public appreciably enhanced Denver & R.G.R. Co. 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. Hammersley, 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 & San Francisco Railway 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). 1917 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). 1918 11 Pet. (36 U.S.) 420 (1837).

haps the leading case before the Civil War, the Supreme Court of

Vermont held that the legislature of that State had the right, in

furtherance of the public safety, to require chartered companies operating railways to fence in their tracks and provide cattle guards.

In a matter of this nature, said the court, corporations are on a

level with individuals engaged in the same business, unless, from

their charter, they can prove the contrary. 1915 Since then the rule

has been applied many times in justification of state regulation of

railroads, 1916 and even of the application of a state prohibition law

to a company that had been chartered expressly to manufacture

beer. 1917

Strict Construction of Charters, Tax Exemptions.—Long,

however, before the cases last cited were decided, the principle that

they illustrate had come to be powerfully reinforced by two others,

the first of which is that all charter privileges and immunities are

to be strictly construed as against the claims of the State, or as it

is otherwise often phrased, ‘‘nothing passes by implication in a public grant.’’

The leading case was that of the Charles River Bridge v. Warren Bridge, 1918 which was decided shortly after Chief Justice Marshall’s death by a substantially new Court. The question at issue

was whether the charter of the complaining company, which authorized it to operate a toll bridge, stood in the way of the State’s
382 ART. I—LEGISLATIVE DEPARTMENT

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1919 Id., 548–553. 1920 201 U.S. 400 (1906).

permitting another company of later date to operate a free bridge

in the immediate vicinity. Inasmuch as the first company could

point to no clause in its charter specifically vested it with an exclusive right, the Court held the charter of the second company to be

valid on the principle just stated. Justice Story, presented a vigorous dissent, in which he argued cogently, but unavailingly, that the

monopoly claimed by the Charles River Bridge Company was fully

as reasonable an implication from the terms of its charter and the

circumstances surrounding its concession as perpetuity had been

from the terms of the Dartmouth College charter and the ensuing

transaction.

The Court was in fact making new law, because it was looking

at things from a new point of view. This was the period when judicial recognition of the Police Power began to take on a doctrinal

character. It was also the period when the railroad business was

just beginning. Chief Justice Taney’s opinion evinces the influence

of both these developments. The power of the State to provide for

its own internal happiness and prosperity was not, he asserted, to

be pared away by mere legal intendments, nor was its ability to

avail itself of the lights of modern science to be frustrated by obsolete interests such as those of the old turnpike companies, the charter privileges of which, he apprehended, might easily become a bar

to the development of transportation along new lines. 1919

The rule of strict construction has been reiterated by the Court

many times. In the Court’s opinion in Blair v. City of Chicago, 1920

decided nearly seventy years after the Charles River Bridge case,

it said: ‘‘Legislative grants of this character should be in such unequivocal form of expression that the legislative mind may be distinctly impressed with their character and import, in order that the

privilege may be intelligently granted or purposely withheld. It is

a matter of common knowledge that grants of this character are

usually prepared by those interested in them, and submitted to the

legislature with a view to obtain from such bodies the most liberal

grant of privileges which they are willing to give. This is one

among many reasons why they are to be strictly construed. . . .

The principle is this, that all rights which are asserted against the

State must be clearly defined, and not raised by inference or presumption; and if the charter is silent about a power, it does not

exist. If, on a fair reading of the instrument, reasonable doubts

arise as to the proper interpretation to be given to it, those doubts

are to be solved in favor of the State; and where it is susceptible
ART. I—LEGISLATIVE DEPARTMENT 383

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1921 Id., 471–472, citing The Binghamton Bridge, 3 Wall. (70 U.S.) 51, 75 (1866). 1922Memphis & L. R. Co. v. Commissioners, 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. Co. v. Palmes, 109 U.S. 244, 251 (1883); Norfolk &

Western Railroad v. Pendleton, 156 U.S. 667, 673 (1895); Pickard v. East Tennessee,

V. & G.R. Co., 130 U.S. 637, 641 (1889). 1923 Atlantic & Gulf R. Co. v. Georgia, 98 U.S. 359, 365 (1879). 1924Phoenix F. & M. Ins. Co. v. Tennessee, 161 U.S. 174 (1896). 1925 Rochester Railway Co. 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. 1926 Chicago, B. & K.C. R. v. Guffey, 120 U.S. 569 (1887). 1927Ford v. Delta and Pine Land Company, 164 U.S. 662 (1897). 1928 Vicksburg, S. & P. R. Co. v. Dennis, 116 U.S. 665 (1886). 1929Millsaps College v. City of Jackson, 275 U.S. 129 (1927).

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.’’’ 1921

An excellent illustration of the operation of the rule in relation

to tax exemptions was furnished by the derivative doctrine that an

immunity of this character must be deemed as intended solely for

the benefit of the corporation receiving it and hence, in the absence

of express permission by the State, may not be passed on to a successor. 1922 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. 1923 Again, a statute which

granted a corporation all ‘‘the rights and privileges’’ of an earlier

corporation was held not to confer the latter’s ‘‘immunity’’ from taxation. 1924 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. 1925

Furthermore, an exemption from taxation is to be strictly construed even in the hands of one clearly entitled to it. So the exemption conferred by its charter on a railway company was held not

to extend to branch roads constructed by it under a later statute. 1926 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. 1927 Also, the charter exemption of the capital stock of a railroad from taxation ‘‘for ten years after completion

of the said road’’ was held not to become operative until the completion of the road. 1928 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. 1929

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
384 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1930 Hale v. State Board, 302 U.S. 95 (1937). 1931 Railroad Commission 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. Comm., 307 U.S. 486 (1939). 1932Georgia Ry. Co. v. Town of Decatur, 262 U.S. 432 (1923). See also Southern

Iowa Elec. Co. v. City of Chariton, 255 U.S. 539 (1921). 1933 City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 15 (1898). 1934Skaneateles Water Co. v. Village of Skaneateles, 184 U.S. 354 (1902); Water

Co. v. City of Knoxville, 200 U.S. 22 (1906); Madera Water Works v. City of Madera,

228 U.S. 454 (1913). 1935 Rogers Park Water Company v. Fergus, 180 U.S. 624 (1901). 1936 Home Tel. & Tel. Co. v. City of Los Angeles, 211 U.S. 265 (1908); Wyandotte Gas Co. v. Kansas, 231 U.S. 622 (1914). 1937See 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 unequivonot to exempt interest on them from taxation as income of the owners. 1930

Strict Construction and the Police Power.—The police

power, too, has frequently benefitted from the doctrine of strict construction, although this recourse is today seldom, if ever, necessary

in this connection. Some of the more striking cases may be briefly

summarized. The provision in the charter of a railway company

permitting it to set reasonable charges still left the legislature free

to determine what charges were reasonable. 1931 On the other

hand, when a railway agreed to accept certain rates for a specified

period, it thereby foreclosed the question of the reasonableness of

such rates. 1932 The grant to a company of the right to supply a city

with water for twenty-five years was held not to prevent a similar

concession to another company by the same city. 1933 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. 1934 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. 1935 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. 1936 Indeed,

any claim by a private corporation that it received the rate-making

power from a municipality must survive a two-fold challenge: first,

as to the right of the municipality under its charter to make such

a grant, secondly, as to whether it has actually done so, and in

both respects an affirmative answer must be based on express

words and not on implication. 1937
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Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

cally expressed.’’ Justice Black for the Court in Keefe v. Clark, 322 U.S. 393, 396–

397 (1944). 1938 Brick Presbyterian Church v. New York, 5 Cow. (N.Y.) 538, 540 (1826). 1939West River Bridge Company v. Dix, 6 How. (47 U.S.) 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). 1940Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20 (1917).

Doctrine of Inalienability as Applied to Eminent Domain,

Taxing, and Police Powers.—The second of the doctrines mentioned above, whereby the principle of the subordination of all persons, corporate and individual alike, to the legislative power of the

State has been fortified, is the doctrine that certain of the State’s

powers are inalienable, and that any attempt by a State to alienate

them, upon any consideration whatsoever, is ipso facto void and

hence incapable to producing a ‘‘contract’’ within the meaning of

Article I, § 10. One of the earliest cases to assert this principle occurred in New York in 1826. The corporation of the City of New

York, having conveyed certain lands for the purposes of a church

and cemetery together with a covenant for quiet enjoyment, later

passed a by-law forbidding their use as a cemetery. In denying an

action against the city for breach of covenant, the state court said

the defendants ‘‘had no power as a party, [to the covenant] to make

a contract which should control or embarrass their legislative powers and duties.’’ 1938

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. 1939 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. 1940 Conversely, the State

may revoke an improvident grant of public property without recourse to the power of eminent domain, such a grant being inherently beyond the power of the State to make. So when the legislature of Illinois in 1869 devised to the Illinois Central Railroad

Company, its successors and assigns, the State’s right and title to

nearly a thousand acres of submerged land under Lake Michigan
386 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1941 Illinois Central R. Co. v. Illinois, 146 U.S. 387, 453, 455 (1892). 1942See especially Home of the Friendless v. Rouse, 8 Wall. (75 U.S.) 430 (1869),

and The Washington University v. Rouse, 8 Wall. (75 U.S.) 439 (1869). 1943Georgia R. Co. v. Redwine, 342 U.S. 299, 305–306 (1952). The Court distinguished In re Ayers, 123 U.S. 443 (1887) on the ground that the action there was

barred ‘‘as one in substance directed at the State merely to obtain specific performance of a contract with the State.’’ 342 U.S., 305. 1944 101 U.S. 814 (1880).

along the harbor front of Chicago, and four years later sought to

repeal the grant, the Court, a four-to-three decision, sustained an

action by the State to recover the lands in question. Said Justice

Field, speaking for the majority: ‘‘Such abdication is not consistent

with the exercise of that trust which requires the government of

the State to preserve such waters for the use of public. The trust

devolving upon the State for the public, and which can only be discharged by the management and control of property in which the

public has an interest, cannot be relinquished by a transfer of the

property. . . . Any grant of the kind is necessarily revocable, and

the exercise of the trust by which the property was held by the

State can be resumed at any time.’’ 1941

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. 1942 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.’’ 1943

The leading case involving the police power is Stone v. Mississippi. 1944 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
ART. I—LEGISLATIVE DEPARTMENT 387

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1945 Id., 820–821. 1946 Butcher’s Union Co. v. Crescent City Co., 111 U.S. 746 (1884). 1947 New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885). 1948 Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 558 (1914).

See also Chicago & Alton Railroad 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 Railroad

Company v. Defiance, 167 U.S. 88, 97 (1897); Home Tel. & Tel. v. City of Los Angeles, 211 U.S. 265 (1908).

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.’’ 1945

The Court shortly afterward applied the same reasoning in a

case in which was challenged the right of Louisiana to invade the

exclusive privilege of a corporation engaged in the slaughter of cattle in New Orleans by granting another company the right to engage in the same business. Although the State did not offer to compensate the older company for the lost monopoly, its action was

sustained on the ground that it had been taken in the interest of

the public health. 1946 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. 1947

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.’’ 1948

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
388 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1949Morley v. Lake Shore Railway Co., 146 U.S. 162 (1892); New Orleans v.

N.O. Water Works Co., 142 U.S. 79 (1891); Missouri & Ark L. & M. Co. v. Sebastion

County, 249 U.S. 170 (1919). But cf. Livingston’s Lessee v. Moore, 7 Pet. (32 U.S.)

469, 549 (1833); and Garrison v. New York, 21 Wall. (88 U.S.) 196, 203 (1875), suggesting that a different view was earlier entertained in the case of judgments in actions of debt. 1950Maynard v. Hill, 125 U.S. 190 (1888); Dartmouth College v. Woodward, 4

Wheat. (17 U.S.) 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). 1951 New Orleans v. New Orleans Water Works Co., 142 U.S. 79 (1891); Zane

v. Hamilton County, 189 U.S. 370, 381 (1903). 1952 4 Wheat. (17 U.S.) 122 (1819). 1953 12 Wheat. (25 U.S.) 213 (1827).

rights that involve the same subject matter but are of different provenience.

Private Contracts.—The term ‘‘private contract’’ is, naturally,

not all-inclusive. A judgment, though granted in favor of a creditor,

is not a contract in the sense of the Constitution, 1949 nor is marriage. 1950 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. 1951

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, 1952 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.

These obscurities were finally cleared up for most cases in

Ogden v. Saunders, 1953 in which the temporal relation of the statute and the contract involved was exactly reversed—the former

antedating the latter. Marshall contended, but unsuccessfully, that

the statute was void, inasmuch as it purported to release the debtor from that original, intrinsic obligation 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
ART. I—LEGISLATIVE DEPARTMENT 389

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1954 Id., 353–354.

Constitution were intimately acquainted with the writings of those

wise and learned men whose treatises on the laws of nature and

nations have guided public opinion on the subjects of obligation and

contracts,’’ and that they took their views on these subjects from

those sources. He also posed the question of what would happen to

the obligation of contracts clause if States might pass acts declaring that all contracts made subsequently thereto should be subject

to legislative control. 1954

For the first and only time, a majority of the Court abandoned

the Chief Justice’s leadership. Speaking by Justice Washington, it

held that the obligation of private contracts is derived from the municipal law—state statutes and judicial decisions—and that the inhibition of Article I, § 10, is confined to legislative acts made after

the contracts affected by them, subject to the following exception.

By a curiously complicated line of reasoning, it was also held in the

same case that when the creditor is a nonresident, then a State by

an insolvency law may not alter the former’s rights under a contract, albeit one of later date.

With the proposition established that the obligation of a private contract comes from the municipal law in existence when the

contract is made, a further question presents itself, namely, what

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. Origi-
390 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1955 United States ex rel. Von Hoffman v. Quincy, 4 Wall. (71 U.S.) 535, 552

(1867). 1956 1 How. (42 U.S.) 311 (1843). 1957 2 How. (43 U.S.) 608 (1844). 1958Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439 (1903); City & Lake

Railroad v. New Orleans, 157 U.S. 219 (1895). 1959 Antoni v. Greenhow, 107 U.S. 769 (1883).

nally, the predominating opinion was negative, since as we have

just seen, this law does not really come into operation until the

contract has been broken. Yet it is obvious that the sanction which

this law lends to contracts is extremely important—indeed, indispensable. In due course it became the accepted doctrine that that

part of the law which supplies one party to a contract with a remedy if the other party does not live up to his agreement, as authoritatively interpreted, entered into the ‘‘obligation of contracts’’ in the

constitutional sense of this term, and so might not be altered to the

material weakening of existing contracts. In the Court’s own words:

‘‘Nothing can be more material to the obligation than the means of

enforcement. Without the remedy the contract may, indeed, in the

sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their

fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable . . .’’ 1955

This rule was first definitely announced in 1843 in the case of

Bronson v. Kinzie. 1956 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

preexisting remedies to such an extent, violated the constitutional

prohibition and hence was void. The year following a like ruling

was made in the case of McCracken v. Hayward, 1957 as to a statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value.

But the rule illustrated by these cases does not signify that a

State may make no changes in its remedial or procedural law that

affect existing contracts. ‘‘Provided,’’ the Court has said, ‘‘a substantial or efficacious remedy remains or is given, by means of

which a party can enforce his rights under the contract, the Legislature may modify or change existing remedies or prescribe new

modes of procedure.’’ 1958 Thus, States are constantly remodelling

their judicial systems and modes of practice unembarrassed by the

obligation of contracts clause. 1959 The right of a State to abolish
ART. I—LEGISLATIVE DEPARTMENT 391

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1960The right was upheld in Mason v. Haile, 12 Wheat. (25 U.S.) 370 (1827),

and again in Penniman’s Case, 103 U.S. 714 (1881). 1961McGahey v. Virginia, 135 U.S. 662 (1890). 1962Louisiana v. New Orleans, 102 U.S. 203 (1880). 1963 United States ex rel. Von Hoffman v. Quincy, 4 Wall. (71 U.S.) 535, 554

(1867). 1964 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, 3 Pet. (28 U.S.) 280 (1830); Hawkins v. Barney’s Lessee, 5 Pet. (30

U.S.) 457 (1831); Crawford v. Branch Bank of Mobile 7 How. (48 U.S.) 279 (1849);

Curtis v. Whitney, 13 Wall. (80 U.S.) 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 Railroad 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. 269, 270, 298, 299 (1885);

Effinger v. Kenney, 115 U.S. 566 (1885); Fisk v. Jefferson Police Jury, 116 U.S. 131

(1885); Bradley v. Lightcap, 195 U.S. 1 (1904); Bank of Minden v. Clement, 256 U.S.

126 (1921). 1965 4 Wall. (71 U.S.) 535, 554–555 (1867).

imprisonment for debt was early asserted. 1960 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. 1961 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. 1962 In the words of the Court: ‘‘Every

case must be determined upon its own circumstances;’’ 1963 and it

later added: ‘‘In all such cases the question becomes . . . one of reasonableness, and of that the legislature is primarily the judge.’’ 1964

There is one class of cases resulting from the doctrine that the

law of remedy constitutes a part of the obligation of a contract to

which a special word is due. This comprises cases in which the contracts involved were municipal bonds. While a city is from one

point of view but an emanation from the government’s sovereignty

and an agent thereof, when it borrows money it is held to be acting

in a corporate or private capacity and so to be suable on its contracts. Furthermore, as was held in the leading case of United

States ex rel. Von Hoffman v. Quincy, 1965 ‘‘where a State has authorized a municipal corporation to contract and to exercise the
392 ART. I—LEGISLATIVE DEPARTMENT

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1966See also Nelson v. St. Martin’s Parish, 111 U.S. 716 (1884). 1967Mobile v. Watson, 116 U.S. 289 (1886); Graham v. Folsom, 200 U.S. 248

(1906). 1968 Heine v. Levee Commissioners, 19 Wall. (86 U.S.) 655 (1874). Cf., Virginia

v. West Virginia, 246 U.S. 565 (1918). 1969Faitoute 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., 511.

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. 1966 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. 1967 But where a municipal organization has ceased

practically to exist through the vacation of its offices, and the government’s function is exercised once more by the State directly, the

Court has thus far found itself powerless to frustrate a program of

repudiation. 1968 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. 1969

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
ART. I—LEGISLATIVE DEPARTMENT 393

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1970Myers 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). 1971Manigault v. Springs, 199 U.S. 473, 480 (1905). 1972 Jackson v. Lamphire, 3 Pet. (28 U.S.) 280 (1830). See also Phalen v. Virginia, 8 How. (49 U.S.) 163 (1850). 1973Stone v. Mississippi, 101 U.S. 814 (1880). 1974 Beer Co. v. Massachusetts, 97 U.S. 25 (1878). 1975 New York Central R. Co. 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.

its own powers. So, when it was contended in an early Pennsylvania case that an act prohibiting the issuance of notes by unincorporated banking associations was violative of the obligation of contracts clause because of its effect upon certain existing contracts of

members of such association, the state Supreme Court answered:

‘‘But it is said, that the members had formed a contract between

themselves, which would be dissolved by the stoppage of their business. And what then? Is that such a violation of contracts as is prohibited by the Constitution of the United States? Consider to what

such a construction would lead. Let us suppose, that in one of the

States there is no law against gaming, cock-fighting, horse-racing

or public masquerades, and that companies should be formed for

the purpose of carrying on these practices. . . .’’ Would the legislature then be powerless to prohibit them? The answer returned, of

course, was no. 1970

The prevailing doctrine was stated by the Supreme Court of

the United States in the following words: ‘‘It is the settled law of

this court that the interdiction of statutes impairing the obligation

of contracts does not prevent the State from exercising such powers

as are vested in it for the promotion of the common weal, or are

necessary for the general good of the public, though contracts 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.’’ 1971

So, in an early case, we find a state recording act upheld as

applying to deeds dated before the passage of the act. 1972 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; 1973 contracts for the sale of

beer, valid when entered into, were similarly nullified by a state

prohibition law; 1974 and contracts of employment were modified by

later laws regarding the liability of employers and workmen’s compensation. 1975 Likewise, a contract between plaintiff and defendant
394 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1976Manigault v. Springs, 199 U.S. 473 (1905). 1977Portland Ry. Co. v. Oregon R. Comm., 229 U.S. 397 (1913). 1978Midland Co. v. Kansas City Power Co., 300 U.S. 109 (1937). 1979 Hudson Water Co. v. McCarter, 209 U.S. 349 (1908). 1980Marcus Brown Co. v. Feldman, 256 U.S. 170, 198 (1921), followed in Levy

Leasing Co. v. Siegel, 258 U.S. 242 (1922). 1981 Chastleton Corp. v. Sinclair, 264 U.S. 543, 547–548 (1924). 1982 290 U.S. 398 (1934).

did not prevent the State from making the latter a concession

which rendered the contract worthless; 1976 nor did a contract as to

rates between two railway companies prevent the State from imposing different rates; 1977 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. 1978 Similarly, a contract for the conveyance of water beyond the limits of a State did

not prevent the State from prohibiting such conveyance. 1979

But the most striking exertions of the police power touching

private contracts, as well as other private interests within recent

years, have been evoked by war and economic depression. Thus, in

World War I, the State of New York enacted a statute, which, declaring that a public emergency existed, forbade the enforcement of

covenants for the surrender of the possession of premises on the expiration of leases, and wholly deprived for a period owners of dwellings, including apartment and tenement houses, within the City of

New York and contiguous counties, of possessory remedies for the

eviction from their premises of tenants in possession when the law

took effect, providing the latter were able and willing to pay a reasonable rent. In answer to objections leveled against this legislation

on the basis of the obligation of contracts clause, the Court said:

‘‘But contracts are made subject to this exercise of the power of the

State when otherwise justified, as we have held this to be.’’ 1980 In

a subsequent case, however, the Court added that, while the declaration by the legislature of a justifying emergency was entitled

to great respect, it was not conclusive; a law ‘‘depending upon the

existence of an emergency or other certain state of facts to uphold

it may cease to operate if the emergency ceases or the facts

change,’’ and whether they have changed was always open to judicial inquiry. 1981

Summing up the result of the cases above referred to, Chief

Justice Hughes, speaking for the Court in Home Building & Loan

Assn. v. Blaisdell, 1982 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 pres-
ART. I—LEGISLATIVE DEPARTMENT 395

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1983 Id., 442, 444. See also Veix v. Sixth Ward Assn. 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., 39. In Lincoln Federal Labor Union v. Northwestern Iron & Metal Co.,

335 U.S. 525, 531–532 (1949), the Court dismissed out-of-hand a suggestion that a

state law outlawing union security agreements was an invalid impairment of existing contracts, citing Blaisdell and Veix. 1984See especially Edwards v. Kearzey, 96 U.S. 595 (1878); Barnitz v. Beverly,

163 U.S. 118 (1896). 1985 290 U.S. 398 (1934).

sure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual

opportunity. Where, in earlier days, it was thought that only the

concerns of individuals or of classes were involved, and that those

of the State itself were touched only remotely, it has later been

found that the fundamental interests of the State are directly affected; and that the question is no longer merely that of one party

to a contract as against another, but of the use of reasonable

means to safeguard the economic structure upon which the good of

all depends. . . . The principle of this development is . . . that the

reservation of the reasonable exercise of the protective power of the

States is read into all contracts . . .’’ 1983

Evaluation of the Clause Today.—It should not be inferred

that the obligation of contracts clause is today totally moribund.

Even prior to the most recent decisions, it still furnished the basis

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, 1984 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 Assn.

v. Blaisdell, 1985 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
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1986W. B. Worthen Co. v. Thomas, 292 U.S. 426 (1934); W. B. Worthen Co. v.

Kavanaugh, 295 U.S. 56 (1935). 1987 Id., 62. 1988 East New York Bank v. Hahn, 326 U.S. 230, 235 (1945), quoting New York

Legislative Document (1942), No. 45, p. 25. 1989 Honeyman v. Jacobs, 306 U.S. 539 (1939). See also Gelfert v. National City

Bank, 313 U.S. 221 (1941).

State’s police power, authorized its courts to extend the period for

redemption from foreclosure sales for such additional time as they

might deem just and equitable, although in no event beyond May

1, 1935.

The act also left the mortgagor in possession during the period

of extension, subject to the requirement that he pay a reasonable

rental for the property as fixed by the court. Contemporaneously,

however, less carefully drawn statutes from Missouri and Arkansas, acts which were not as considerate of creditor’s rights, were set

aside as violative of the contracts clause. 1986 ‘‘A State is free to

regulate the procedure in its courts even with reference to contracts already made,’’ said Justice Cardozo for the Court, ‘‘and moderate extensions of the time for pleading or for trial will ordinarily

fall within the power so reserved. A different situation is presented

when extensions are so piled up as to make the remedy a shadow.

. . . What controls our judgment at such times is the underlying reality rather than the form or label. The changes of remedy now

challenged as invalid are to be viewed in combination, with the cumulative significance that each imparts to all. So viewed they are

seen to be an oppressive and unnecessary destruction of nearly all

the incidents that give attractiveness and value to collateral security.’’ 1987 On the other hand, in the most recent of this category of

cases, the Court gave its approval to an extension by the State of

New York of its moratorium legislation. While recognizing that

business conditions had improved, the Court was of the opinion

that there was reason to believe that ‘‘‘the sudden termination of

the legislation which has dammed up normal liquidation of these

mortgages for more than eight years might well result in an emergency more acute than that which the original legislation was intended to alleviate.’’’ 1988

And meantime the Court had sustained legislation of the State

of New York under which a mortgagee of real property was denied

a deficiency judgment in a foreclosure suit where the state court

found that the value of the property purchased by the mortgagee

at the foreclosure sale was equal to the debt secured by the mortgage. 1989 ‘‘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
ART. I—LEGISLATIVE DEPARTMENT 397

Sec. 10—Powers Denied to the States Cl. 1—Obligation of Contracts

1990 Id., 233–234. 1991 United States Trust Co. v. New Jersey, 431 U.S. 1, 16 (1977). ‘‘It is not a

dead letter.’’ Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 (1978). A

majority of the Court seems fully committed to using the clause. Only Justices Brennan, White, and Marshall dissented in both cases. Chief Justice Burger and Justices

Rehnquist and Stevens joined both opinions of the Court. Of the three remaining

Justices, who did not participate in one or the other case, Justice Blackmun wrote

the opinion in United States Trust while Justice Stewart wrote the opinion in

Spannaus and Justice Powell joined it. 1992 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. 1993 431 U.S., 21; 438 U.S., 244. 1994 431 U.S., 22–26; 438 U.S., 248. 1995 438 U.S., 245. 1996 431 U.S., 17–21 (the Court was unsure of the value of the interest impaired

but deemed it ‘‘an important security provision’’); 438 U.S. 244–247 (statute mandated company to recalculate, and in one lump sum, contributions previously adequate).

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.’’ 1990

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.’’ 1991 So saying, the Court struck down state legislation in two

instances, one law involving the government’s own contractual obligation and the other affecting private contracts. 1992 A finding that

a contract has been ‘‘impaired’’ in some way is merely the preliminary step in evaluating the validity of the state action. 1993 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.’’ 1994 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.’’ 1995 Having determined that a severe impairment had resulted in both cases, 1996 the Court moved on to assess the justifica-
398 ART. I—LEGISLATIVE DEPARTMENT

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1997 431 U.S., 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., 30 n. 28, and

it had alternate means to achieve its purposes; the need for mass transportation

was obvious when covenant was enacted and State could not claim that unforeseen

circumstances had arisen.) 1998 438 U.S., 244–251. 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). 1999 438 U.S., 242 (emphasis by Court).

tion for the state action. In United States Trust, the test utilized

by the Court was that an impairment would be upheld only if it

were ‘‘necessary’’ and ‘‘reasonable’’ to serve an important public

purpose. But the two terms were given somewhat restrictive meanings. Necessity is shown only when the State’s objectives could not

have been achieved through less dramatic modifications of the contract; reasonableness is a function of the extent to which alteration

of the contract was prompted by circumstances unforeseen at the

time of its formation. The repeal of the covenant in issue was found

to fail both prongs of the test. 1997 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. 1998

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.’’ 1999

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
ART. I—LEGISLATIVE DEPARTMENT 399

Sec. 10—Powers Denied to the States Cl. 2—Imposts or Duties

2000 Hooeven & Allison Co. v. Evatt, 324 U.S. 652, 673 (1945). Goods brought

from another State are not within the clause. Woodruff v. Parham, 8 Wall. (75 U.S.)

123 (1869). 2001 Cornell v. Coyne, 192 U.S. 418, 427 (1904). 2002 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). 2003 12 Wheat. (25 U.S.) 419, 441–442 (1827). 2004May v. New Orleans, 178 U.S. 496, 502 (1900). 2005 Id., 501; Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928); McGoldrick

v. Gulf Oil Corp., 309 U.S. 414 (1940). 2006Low v. Austin, 13 Wall. (80 U.S.) 29 (1872); May v. New Orleans, 178 U.S.

496 (1900).

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.’’ 2000 With respect

to exports, the exemption from taxation ‘‘attaches to the export and

not to the article before its exportation,’’ 2001 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. 2002

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.’’ 2003 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. 2004 Imports for manufacture cease

to be such when the intended processing takes place, 2005 or when

the original packages are broken. 2006 Where a manufacturer imports merchandise and stores it in his warehouse in the original
400 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 2—Imposts or Duties

2007 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). 2008 Id., 664. 2009 Canton R. Co. v. Rogan, 340 U.S. 511 (1951). 2010 Brown v. Maryland, 12 Wheat. (25 U.S.) 419, 447 (1827). 2011 Anglo-Chilean Corp. v. Alabama, 288 U.S. 218 (1933). 2012Low v. Austin, 13 Wall. (80 U.S.) 29, 33 (1872). 2013 Cook v. Pennsylvania, 97 U.S. 566, 573 (1878). 2014 Crew Levick Co. v. Pennsylvania, 245 U.S. 292 (1917). 2015 Cooley v. Port Wardens, 12 How. (53 U.S.) 299, 313 (1851). 2016Waring v. The Mayor, 8 Wall. (75 U.S.) 110, 122 (1869). See also Pervear

v. Massachusetts. 5 Wall. (72 U.S.) 475, 478 (1867); Schollenberger v. Pennsylvania,

171 U.S. 1, 24 (1898). 2017Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928). 2018 Nathan v. Louisiana, 8 How. (49 U.S.) 73, 81 (1850). 2019Mager v. Grima, 8 How. (49 U.S.) 490 (1850). 2020Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976), overruling Low v. Austin, 13 Wall. (80 U.S.) 29 (1872), expressly, and, necessarily, Hooven & Allison Co.

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. 2007 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. 2008 A state franchise tax measured by

properly apportioned gross receipts may be imposed upon a railroad company in respect of the company’s receipts for services in

handling imports and exports at its marine terminal. 2009

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. 2010 Likewise, a franchise tax

upon foreign corporations engaged in importing nitrate and selling

it in the original packages, 2011 a tax on sales by brokers 2012 and

auctioneers 2013 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, 2014 have been

held invalid. On the other hand, pilotage fees, 2015 a tax upon the

gross sales of a purchaser from the importer, 2016 a license tax upon

dealing in fish which, through processing, handling, and sale, have

lost their distinctive character as imports, 2017 an annual license

fee imposed on persons engaged in buying and selling foreign bills

of exchange, 2018 and a tax upon the right of an alien to receive

property as heir, legatee, or donee of a deceased person 2019 have

been held not to be duties on imports or exports.

Property Taxes.—Overruling a line of prior decisions which it

thought misinterpreted the language of Brown v. Maryland, the

Court now holds that the clause does not prevent a State from levying a nondiscriminatory, ad valorem property tax upon goods that

are no longer in import transit. 2020 Thus, a company’s inventory of
ART. I—LEGISLATIVE DEPARTMENT 401

Sec. 10—Powers Denied to the States Cl. 2—Imposts or Duties

v. Evatt, 324 U.S. 652 (1945), among others. The latter case was expressly overruled

in Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984), involving the same tax

and the same parties. In Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534

(1959), property taxes were sustained on the basis that the materials taxed had lost

their character as imports. On exports, see Selliger v. Kentucky, 213 U.S. 200 (1909)

(property tax levied on warehouse receipts for whiskey exported to Germany invalid). 2021Michelin Tire Corp. v. Wages, 423 U.S. 276, 290–294 (1976). Accord: R. J.

Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (1986) (tax on imported 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’ comprehensive regulation of customs duties;’’ case, however, dealt with goods

stored for export). 2022 Bowman v. Chicago & Northwestern Railway Co., 125 U.S. 465, 488 (1888). 2023 107 U.S. 38 (1883). 2024 Id., 55. 2025Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 361 (1898). 2026 Bowman v. Chicago & Northwestern Railway Co., 125 U.S. 465 (1888). The

Twenty-first Amendment has had no effect on this principle. Department of Revenue

v. James B. Beam Distilling Co., 377 U.S. 341 (1964).

imported tires maintained 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. 2021

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.’’ 2022 In Turner v.

Maryland, 2023 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. . . .’’ 2024 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. 2025 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. 2026
402 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties

2027 Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265 (1935); Cannon v. City

of New Orleans, 20 Wall. (87 U.S.) 577, 581 (1874); Transportation Co. v. Wheeling,

99 U.S. 273, 283 (1879).

2028Packet 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).

2029 Cooley v. Port Wardens, 12 How. (53 U.S.) 299, 314 (1851); Ex parte

McNiel, 13 Wall. (80 U.S.) 236 (1872); Inman Steamship Company v. Tinker, 94

U.S. 238, 243 (1877); Packet Co. v. St. Louis, 100 U.S. 423 (1880); City of Vicksburg

v. Tobin, 100 U.S. 430 (1880); Packet Co. v. Catlettsburg, 105 U.S. 559 (1882).

2030 Huse v. Glover, 119 U.S. 543, 549 (1886).

2031Steamship Co. v. Portwardens, 6 Wall. (73 U.S.) 31 (1867).

2032Peete v. Morgan, 19 Wall. (86 U.S.) 581 (1874).

2033Morgan v. Louisiana, 118 U.S. 455, 462 (1886).

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 prohibition against tonnage duties embraces all taxes and

duties, regardless of their name or form, whether measured by the

tonnage of the vessel or not, which are in effect charges for the

privilege of entering, trading in, or lying in a port. 2027 But it does

not extend to charges made by state authority, even if graduated

according to tonnage, 2028 for services rendered to the vessel, such

as pilotage, towage, charges for loading and unloading cargoes,

wharfage, or storage. 2029 For the purpose of determining wharfage

charges, it is immaterial whether the wharf was built by the State,

a municipal corporation, or an individual. Where the wharf was

owned by a city, the fact that the city realized a profit beyond the

amount expended did not render the toll objectionable. 2030 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. 2031 A State may not levy

a tonnage duty to defray the expenses of its quarantine system, 2032

but it may exact a fixed fee for examination of all vessels passing

quarantine. 2033 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
ART. I—LEGISLATIVE DEPARTMENT 403

Sec. 10—Powers Denied to the States Cl. 3—Interstate Compacts

2034Wiggins 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, 16

Wall. (83 U.S.) 479, 481 (1873). 2035 12 Wall. (79 U.S.) 204, 217 (1871). 2036Luther v. Borden, 7 How. (48 U.S.) 1, 45 (1849). 2037Presser v. Illinois, 116 U.S. 252 (1886). 2038Poole v. Fleeger, 11 Pet. (36 U.S.) 185, 209 (1837). 2039 Hinderlider v. La Plata Co., 304 U.S. 92, 104 (1938). 2040Frankfurter and Landis, The Compact Clause of the Constitution—A Study

in Interstate Adjustments, 34 Yale L.J. 685, 691 (1925). 2041 Article IX. 2042 Article VI.

not exempt it. 2034 In the State Tonnage Tax Cases, 2035 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, 2036 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. 2037

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. 2038 ‘‘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.’’ 2039 In American history, the compact technique can be

traced back to the numerous controversies that arose over the illdefined boundaries of the original colonies. These disputes were

usually resolved by negotiation, with the resulting agreement subject to approval by the Crown. 2040 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’’ 2041 and required the approval

of Congress for any ‘‘treaty confederation or alliance’’ to which a

State should be a party. 2042

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
404 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 3—Interstate Compacts

2043 14 Pet. (39 U.S.) 540 (1840). 2044 Id., 570, 571, 572. 2045 148 U.S. 503, 518 (1893). See also Stearns v. Minnesota, 179 U.S. 223, 244

(1900). 2046 United States Steel Corp. v. Multistate Tax Comm., 434 U.S. 452 (1978).

See also New Hampshire v. Maine, 426 U.S. 363 (1976). 2047Frankfurter and Landis, The Compact Clause of the Constitution—A Study

in Interstate Adjustments, 34 Yale L.J. 685 (1925); F. ZIMMERMAN and M. WENDELL,

Chief Justice Taney in Holmes v. Jennison. 2043 ‘‘As these words

(‘agreement or compact’) could not have been idly or superfluously

used by the framers of the Constitution, they cannot be construed

to mean the same thing with the word treaty. They evidently mean

something more, and were designed to make the prohibition more

comprehensive. . . . The word ‘agreement,’ does not necessarily import and direct any express stipulation; nor is it necessary that it

should be in writing.

‘‘If there is a verbal understanding, to which both parties have

assented, and upon which both are acting, it is an ‘agreement.’ And

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.’’ 2044 But in Virginia v. Tennessee, 2045 decided more than a half century later, the Court shifted position, holding that the unqualified prohibition of compacts

and agreements between States without the consent of Congress

did not apply to agreements concerning such minor matters as adjustments of boundaries, which have no tendency to increase the

political powers of the contracting States or to encroach upon the

just supremacy of the United States. Adhering to this later understanding of the clause, the Court found no enhancement of state

power quoad the Federal Government through entry into the

Multistate Tax Compact and thus sustained the agreement among

participating States without congressional consent. 2046

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. 2047 The execution of vast public undertak-
ART. I—LEGISLATIVE DEPARTMENT 405

Sec. 10—Powers Denied to the States Cl. 3—Interstate Compacts

INTERSTATE COMPACTS SINCE 1925 (Chicago: 1951); F. ZIMMERMAN and M. WENDELL, THE LAW AND USE OF INTERSTATE COMPACTS (Chicago: 1961). 2048 48 Stat. 909 (1934). 2049F. ZIMMERMAN and M. WENDELL, INTERSTATE COMPACTS SINCE 1925 (Chicago: 1951), 91. 2050 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. § 552; 33 U.S.C. §§ 11, 567–567b. 2051Green v. Biddle, 8 Wheat. (21 U.S.) 1, 85 (1823). 2052 Virginia v. Tennessee, 148 U.S. 503 (1893). 2053 Virginia v. West Virginia, 11 Wall. (78 U.S.) 39 (1871). 2054Wharton v. Wise, 153 U.S. 155, 173 (1894). 2055 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

ings, 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, 2048 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. 2049

Subsequently, Congress has authorized, on varying conditions,

compacts touching the production of tobacco, the conservation of

natural gas, the regulation of fishing in inland waters, the furtherance of flood and pollution control, and other matters. Moreover,

many States have set up permanent commissions for interstate cooperation, which have led to the formation of a Council of State

Governments, the creation of special commissions for the study of

the crime problem, the problem of highway safety, the trailer problem, problems created by social security legislation, et cetera, and

the framing of uniform state legislation for dealing with some of

these. 2050

Consent of Congress.—The Constitution makes no provision

with regard to the time when the consent of Congress shall be

given or the mode or form by which it shall be signified. 2051 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. 2052 The required consent is not necessarily an expressed consent; it may be inferred from circumstances. 2053 It is sufficiently

indicated, when not necessary to be made in advance, by the approval of proceedings taken under it. 2054 The consent of Congress

may be granted conditionally ‘‘upon terms appropriate to the subject and transgressing no constitutional limitations.’’ 2055 Congress
406 ART. I—LEGISLATIVE DEPARTMENT

Sec. 10—Powers Denied to the States Cl. 3—Interstate Compacts

consent to the subsequent adoption of implementing legislation by the participating

States. De Veau v. Braisted, 363 U.S. 144, 145 (1960). 2056Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 421,

433 (1856). 2057St. Louis & San Francisco Railway v. James, 161 U.S. 545, 562 (1896). 2058Poole v. Fleeger, 11 Pet. (36 U.S.) 185, 209 (1837); Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 725 (1838). 2059 Hinderlider v. La Plata Co., 304 U.S. 92, 104, 106 (1938). 2060Green v. Biddle, 8 Wheat. (21 U.S.) 1, 13 (1823); Virginia v. West Virginia,

246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 13

How. (54 U.S.) 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922). 2061Petty v. Tennessee-Missouri Comm., 359 U.S. 275 (1959). 2062Texas 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).

does not, by giving its consent to a compact, relinquish or restrict

its own powers, as for example, its power to regulate interstate

commerce. 2056

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

which created it, to accept authority from another State to extend

its railroad into such State and to receive a grant of powers to own

and control, by lease or purchase, railroads therein and to subject

itself to such rules and regulations as may be prescribed by the

second State. Such legislation on the part of two or more States is

not, in the absence of inhibitory legislation by Congress, regarded

as within the constitutional prohibition of agreements or compacts

between States. 2057

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. 2058 Private rights may be affected by agreements for the equitable apportionment of the water

of an interstate stream, without a judicial determination of existing

rights. 2059 Valid interstate compacts are within the protection of

the obligation of contracts clause, 2060 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. 2061

The Supreme Court in the exercise of its original jurisdiction may

enforce interstate compacts following principles of general contract

law. 2062 Congress also has authority to compel compliance with
ART. I—LEGISLATIVE DEPARTMENT 407

Sec. 10—Powers Denied to the States Cl. 3—Interstate Compacts

2063 Virginia v. West Virginia, 246 U.S. 565, 601 (1918).

2064Dyer v. Sims, 341 U.S. 22 (1951).

such compacts. 2063 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. 2064