Article I. Legislative Department |
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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
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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
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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
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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
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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
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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 Sec. 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
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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
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ARTICLE I
LEGISLATIVE DEPARTMENT
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\
\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).
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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 separation-of-powers
doctrine by the legislatures of the States were common
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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\
\2\Thus the Constitution of Virginia of 1776 provided: ``The
legislative, executive, and judiciary department shall be separate and
distinct, so that neither exercise the powers properly belonging to the
other; nor shall any person exercise the powers of more than one of
them, at the same time[.]'' Reprinted in 10 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.''
\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).
\4\The intellectual history through the state period and the
Convention proceedings is detailed in G. Wood, The Creation of the
American Republic, 1776-1787 (1969) (see index entries under
``separation of powers'').
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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\
\5\The Federalist Nos. 47-51 (J. Cooke ed. 1961), 323-353
(Madison).
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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
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counteract ambition. The interest of the man must be connected with the
constitutional rights of the place.''\8\
\6\Id., No. 47, 325-326(emphasis in original).
\7\Id., Nos. 47-49, 325-343.
\8\Id., No. 51, 349.
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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-of-powers
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.
\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).
\11\See Mistretta v. United States, 488 U.S. 361, 415-416 (1989)
(Justice Scalia dissenting).
\12\The principal example is Myers v. United States, 272 U.S. 52
(1926), written by Chief Justice Taft, himself a former President. The
breadth of the holding was modified in considerable degree in Humphrey's
Executor v. United States, 295 U.S. 602 (1935), and the premise of the
decision itself was recast and largely softened in Morrison v. Olson,
487 U.S. 654 (1988).
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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 deficit-reduction 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\
\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).
\17\Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta
v. United States, 488 U.S. 361 (1989).
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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\
\18\The tenor of a later case, Metropolitan Washington Airports
Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252
(1991), was decidedly formalistic, but it involved a factual situation
and a doctrinal predicate easily rationalized by the principles of
Morrison and Mistretta, aggrandizement of its powers by Congress.
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), reasserted the
fundamentality of Marathon, again in a bankruptcy courts context,
although the issue was the right to a jury trial under the Seventh
Amendment rather than strictly speaking a separation-of-powers question.
Freytag v. CIR, 501 U.S. 868 (1991), pursued a straightforward
appointments-clause analysis, informed by a separation-of-powers
analysis but not governed by it. Finally, in Public Citizen v. U. S.
Department of Justice, 491 U.S. 440, 467 (1989) (concurring), Justice
Kennedy would have followed the formalist approach, but he explicitly
grounded it on the distinction between an express constitutional vesting
of power as against implicit vestings. Separately, the Court has for
some time viewed the standing requirement for access to judicial review
as reflecting a separation-of-powers component--confining the courts to
their proper sphere--Allen v. Wright, 468 U.S. 737, 752 (1984), but that
view seemed largely superfluous to the conceptualization of standing
rules. However, in Lujan v. Defenders of Wildlife, 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.
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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\
\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.
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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
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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\
\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).
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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 non-Article III
bankruptcy court.\24\ Sustaining the agency's power, the Court
emphasized ``the principle that `practical attention to substance rather
than doctrinaire reliance on formal categories should inform application
of Article III.'''\25\ It held that in evaluating such a separation of
powers challenge, the Court had to consider the extent to which the
``essential attributes of judicial power'' were reserved to Article III
courts and conversely the extent to which the non-Article III entity
exercised the jurisdiction and powers normally vested only in Article
III courts, the origin and importance of the rights to be adjudicated,
and the concerns that drove Congress to depart from the requirements of
Article III.\26\ Bowsher, the Court said, was not contrary, because
``[u]nlike Bowsher, this case raises no question of the aggrandizement
of congressional power at the expense of a coordinate branch.''\27\ The
test was a balancing
[[Page 69]]
one, whether Congress had impermissibly undermined the role of another
branch without appreciable expansion of its own power.
\24\While 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.
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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.
\28\To 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).
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[[Page 70]]
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.
\30\Mistretta 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.
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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
[[Page 71]]
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\
\32\The 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, Sec. 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).
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Events since 1787, of course, have altered both the separation-
of-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\
\34\4 Wheat. (17 U.S.) 316, 405 (1819).
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[[Page 72]]
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\
\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.
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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\
\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.
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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
[[Page 73]]
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.
\44\Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 616, 618-619
(1842).
\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).
\48\Fong Yue Ting v. United States, 149 U.S. 698 (1893).
\49\Hines v. Davidowitz, 312 U.S. 52 (1941).
\50\299 U.S. 304 (1936).
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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
[[Page 74]]
have so settled a place in constitutional jurisprudence that notice must
be given at some length.\52\
\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).
\52\For 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.
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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 law-making
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?
\53\Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v.
Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).
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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\
\54\Carter v. Carter Coal Co., 298 U.S. 238, 310-312 (1936).
Since the separation-of-powers doctrine is inapplicable to the States as
a requirement of federal constitutional law, Dreyer v. Illinois, 187
U.S. 71, 83-84 (1902), it is the due process clause to which federal
courts must look for authority to review 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).
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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.''
\55\J. Locke, Second Treatise on Government (London: 1691), Ch.
11, 141.
\56\276 U.S. 394, 405-406 (1928).
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[[Page 75]]
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\
\57\Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398
(1940).
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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\
\58\Wayman 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.
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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.
\61\Id., 41.
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[[Page 76]]
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\
\62\The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813).
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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.
\63\10 Wheat. (23 U.S.) 1 (1825).
\64\Act of May 8, 1792, Sec. 2, 1 Stat. 275, 276.
\65\The power to promulgate rules of civil procedure was
conferred by the Act of June 19, 1934, 48 Stat. 1064, now 28 U.S.C.
Sec. 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.
Sec. 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. Sec. Sec. 3501-02 (admissibility of
confessions in federal courts).
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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\
\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).
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Legislative Powers
Contingent Legislation.--An entirely different problem arises
when, instead of directing another department of govern
[[Page 77]]
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\
\70\7 Cr. (11 U.S.) 382 (1813).
\71\Id., 388.
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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
[[Page 78]]
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\
\72\143 U.S. 649 (1892).
\73\Id., 691.
\74\Id., 692, 693.
\75\J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394
(1928).
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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\
\76\Mistretta 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).
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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
[[Page 79]]
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\
\80\See 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).
\81\The 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).
\83\State 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).
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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
[[Page 80]]
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\
\85\New York Central Securities Co. v. United States, 287 U.S.
12, 25 (1932).
\86\Federal 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).
\89\FCC v. RCA Communications, 346 U.S. 86 (1953).
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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\
\90\FPC 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).
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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\
\93\488 U.S. 361 (1989).
\94\Id., 378.
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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\
\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 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).
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[[Page 81]]
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
[[Page 82]]
dure and of evidence it directed that such rules supersede previously
enacted statutes with which they conflicted.\103\
\97\Lichter v. United States, 334 U.S. 742, 778-779 (1948).
\98\Skinner 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).
\103\See 18 U.S.C. Sec. Sec. 3771, 3772 (criminal procedure); 28
U.S.C. Sec. 2072 (civil procedure); id., Sec. 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. Sec. 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).
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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.
\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.
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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
[[Page 83]]
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\
\107\293 U.S. 388 (1935).
\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. Sec. 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, Sec. 1.
\111\295 U.S., 541-542.
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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\
\112\Fahey 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).
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[[Page 84]]
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\
\115\Tagg Bros. & Moorhead v. United States, 280 U.S. 420
(1930).
\116\New York Central Securities Corp. v. United States, 287
U.S. 12 (1932).
\117\Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co.,
289 U.S. 266 (1933).
\118\FTC v. Gratz, 253 U.S. 421 (1920).
\119\319 U.S. 190 (1943).
\120\Id., 216.
\121\Similarly, the promulgation by the FCC of rules creating a
``fairness doctrine'' and a ``right to reply'' rule has been sustained,
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), as well as a rule
requiring the carrying of anti-smoking commercials. Banzhaf v. FCC, 405
F.2d 1082 (D.C.Cir. 1968), cert. den. sub nom., Tobacco Institute v.
FCC, 396 U.S. 842 (1969).
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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 Co-
operatives,\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.
\122\307 U.S. 533 (1939).
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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
[[Page 85]]
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\
\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 (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.
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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\
\128\334 U.S. 742 (1948).
\129\Sec. 403(a)(4) of the Act, as added by Tit. 8 of the Act of
October 21, 1942, 56 Stat. 798, 982.
\130\Sec. 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.
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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
[[Page 86]]
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\
\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. Sec. Sec. 551-
559. In NLRB v. Wyman-Gordon 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).
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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.
\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).
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Delegations to the States.--From the beginning, Congress enacted
hundreds of statutes that contained provisions authorizing
[[Page 87]]
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\
\138\See Warren, Federal Criminal Laws and the State Courts, 38
Harv. L. Rev. 545 (1925); Holcomb, The States as Agents of the Nation, 3
Selected Essays on Constitutional Law (1938), 1187.
\139\Prigg 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.
Sec. 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. Sec. 6992f (States may impose civil and possibly criminal
penalties against violators of the law).
\142\See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President
Reagan). The only judicial challenge to such a practice resulted in a
rebuff to the presidential argument. Seattle Master Builders Assn. v.
Pacific Northwest Electric Power & Conservation Planning Council, 786
F.2d 1359 (9th Cir. 1986), cert. den., 479 U.S. 1059 (1987).
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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\
\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).
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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
[[Page 88]]
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\
\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 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).
\147\St. 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).
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The issue has remained muddled since Carter Coal, the Court
having had no opportunity to attempt to reconcile the two lines of
cases.\151\
\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.
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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
[[Page 89]]
standard practice, indeed, of the majority has been to interpret
narrowly the delegation so as to avoid constitutional problems.\154\
\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.
\153\Kent v. Dulles, 357 U.S. 116, 129 (1958).
\154\Kent 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).
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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\
\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. Sec. 3301 (app.), sustained in
Vergara v. Hampton, 581 F. 2d 1281 (C. A. 7, 1978).
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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\
\156\United States v. Grimaud, 220 U.S. 506 (1911). See also
Touby v. United States, 500 U.S. 160 (1991).
\157\L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944).
\158\United States v. Eaton, 144 U.S. 677 (1892).
\159\L.P. Steuart & Bro. v. Bowles, 322 U.S. 398 (1944).
\160\M. Kraus & Bros. v. United States, 327 U.S. 614 (1946).
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Investigatory Power
[[Page 90]]
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\
\161\Landis, 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.
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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\
\163\McGrain v. Daugherty, 273 U.S. 135, 174-175 (1927).
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And in a 1957 opinion generally hostile to the exercise of the
investigatory power in the post-War years, Chief Justice Warren
[[Page 91]]
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\
\164\Watkins 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).
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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\
\166\Kilbourn v. Thompson, 103 U.S. 168, 189 (1881).
\167\McGrain v. Daugherty, 273 U.S. 135, 170 (1927). The
internal quotations are from Kilbourn v. Thompson, 103 U.S. 168, 190,
193 (1881).
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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.
[[Page 92]]
Investigations of Conduct of Executive Department
For many years the investigating function of Congress was
limited to inquiries into the administration of the Executive Department
or of instrumentalities of the Government. Until the administration of
Andrew Jackson, this power was not seriously challenged.\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
[[Page 93]]
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\
\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).
\174\The Court held that inasmuch as the entire proceedings
arising out of the bankruptcy were pending in court, as the authorizing
resolution contained no suggestion of contemplated legislation, as in
fact no valid legislation could be enacted on the subject, and as the
only relief which the United States could seek was judicial relief in
the bankruptcy proceeding, the House had exceeded its powers in
authorizing the inquiry. But see Hutcheson v. United States, 369 U.S.
599 (1962).
\175\273 U.S. 135, 177, 178 (1927).
\176\We 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.
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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.
\177\In re Chapman, 166 U.S. 661 (1897).
\178\279 U.S. 597 (1929).
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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\
\179\4 Cong. Deb. 862, 868, 888, 889 (1827).
\180\Kilbourn v. Thompson, 103 U.S. 168 (1881).
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[[Page 94]]
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\
\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.
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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
[[Page 95]]
subjects of congressional interest also contributed to the changed
scene. This new phase of legislative inquiry involved a broad-scale
intrusion into the lives and affairs of private citizens.''\187\Inasmuch
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.
\185\Id., 294.
\186\The 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.
\187\Watkins v. United States, 354 U.S. 178, 195 (1957).
\188\See 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).
\190\Watkins v. United States, 354 U.S. 178 (1957); Flaxer v.
United States, 358 U.S. 147 (1958); Wilkinson v. United States, 365 U.S.
399 (1961).
\191\McPhaul v. United States, 364 U.S. 372 (1960).
\192\Hutcheson v. United States, 369 U.S. 599 (1962).
\193\Shelton v. United States, 404 F. 2d 1292 (D.C.Cir. 1968),
cert. den., 393 U.S. 1024 (1969).
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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
[[Page 96]]
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\
\194\Watkins v. United States, 354 U.S. 178, 200 (1957). The
Chief Justice, however, noted: ``We are not concerned with the power of
the Congress to inquire into and publicize corruption, maladministration
or inefficiency in agencies of the Government. That was the only kind of
activity described by Woodrow Wilson in Congressional Government when he
wrote: `The informing function of Congress should be preferred even to
its legislative function.' Id., at 303. From the earliest times in its
history, the Congress has assiduously performed an `informing function'
of this nature.'' Id., 200 n. 33.
In his book, Wilson continued, following the sentence quoted by
the Chief Justice: ``The argument is not only that discussed and
interrogated administration is the only pure and efficient
administration, but, more than that, that the only really self-governing
people is that people which discusses and interrogates its
administration. . . . It would be hard to conceive of there being too
much talk about the practical concerns . . . of government.''
Congressional Government (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).
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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
[[Page 97]]
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\
\198\United States v. Rumely, 345 U.S. 41, 44 (1953).
\199\354 U.S. 178, 201 (1957).
\200\The Committee has since been abolished.
\201\Watkins v. United States, 354 U.S. 178, 202 (1957).
\202\360 U.S. 109 (1959).
\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.
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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\
\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).
\207\The Court intimated that if the authorizing resolution did
confer such power upon the committee, the validity of the resolution
would be subject to doubt on First Amendment principles. Justices Black
and Douglas would have construed the resolution as granting the
authority and would have voided it under the First Amendment. Id., 48
(concurring opinion).
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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.
\208\384 U.S. 702 (1966).
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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
[[Page 98]]
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\
\209\354 U.S. 178 (1957).
\210\Id., 208-209.
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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\
\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.
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By and large, the subsequent cases demonstrated that Watkins did
not represent a determination by the Justices to restrain broadly the
course of congressional investigations, though several contempt
citations were reversed on narrow holdings. But with regard to
pertinency, the implications of Watkins were held in check and, without
amending its rules or its authorizing resolution, the Un-American
Activities Committee was successful in convincing a ma
[[Page 99]]
jority of the Court that its subsequent investigations were authorized
and that the questions asked of recalcitrant witnesses were pertinent to
the inquiries.\213\
\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 Un-American 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).
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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
[[Page 100]]
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\
\214\360 U.S. 109 (1959).
\215\365 U.S. 399 (1961).
\216\Braden v. United States, 365 U.S. 431 (1961).
\217\The majority denied that the witness' participation in a
lawful and protected course of action, such as petitioning Congress to
abolish the Committee, limited the Committee's right of inquiry. ``[W]e
cannot say that, simply because the petitioner at the moment may have
been engaged in lawful conduct, his Communist activities in connection
therewith could not be investigated. The subcommittee had reasonable
ground to suppose that the petitioner was an active Communist Party
member, and that as such he possessed information that would
substantially aid it in its legislative investigation. As 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.
---------------------------------------------------------------------------
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\
\218\374 U.S. 109 (1963).
\219\Failure to follow its own rules was again an issue in
Gojack v. United States, 384 U.S. 702 (1966), in which the Court noted
that 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.
---------------------------------------------------------------------------
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\
\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.
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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
[[Page 101]]
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.
\221\Barenblatt v. United States, 360 U.S. 109, 112 (1959).
---------------------------------------------------------------------------
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.
\222\Id., 126; Watkins v. United States, 354 U.S. 178, 196
(1957); Quinn v. United States, 349 U.S. 155, 161 (1955).
---------------------------------------------------------------------------
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\
\223\Quinn 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).
---------------------------------------------------------------------------
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\
\226\McPhaul v. United States, 364 U.S. 372 (1960).
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In Hutcheson v. United States,\227\ the Court rejected a
challenge to a Senate Committee inquiry into union corruption on the
[[Page 102]]
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\
\227\369 U.S. 599 (1962).
\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.
\229\The matter is discussed fully in the section on the First
Amendment but a good statement of the balancing rule may be found in
Younger v. Harris, 401 U.S. 37, 51 (1971), by Justice Black, supposedly
an absolutist on the subject: ``Where a statute does not directly
abridge free speech, but--while regulating a subject within the State's
power--tends to have the incidental effect of inhibiting First Amendment
rights, it is well settled that the statute can be upheld if the effect
on speech is minor in relation to the need for control of the conduct
and the lack of alternative means for doing so.''
\230\Barenblatt v. United States, 360 U.S. 109, 126 (1959).
---------------------------------------------------------------------------
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
[[Page 103]]
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\
\231\Barenblatt v. United States, 360 U.S. 109 (1959).
\232\Wilkinson 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).
\234\Gibson v. Florida Legislative Investigation Committee, 372
U.S. 539 (1963). See also DeGregory v. Attorney General, 383 U.S. 825
(1966).
---------------------------------------------------------------------------
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\
\235\Watkins v. United States, 354 U.S. 178, 188 (1957).
\236\See 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).
---------------------------------------------------------------------------
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
[[Page 104]]
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.
\238\273 U.S. 135 (1927).
\239\6 Wheat (19 U.S.) 204 (1821).
\240\The contempt consisted of an alleged attempt to bribe a
Member of the House for his assistance in passing a claims bill. The
case was a civil suit brought by Anderson against the Sergeant at Arms
of the House for assault and battery and false imprisonment. Cf.
Kilbourn v. Thompson, 103 U.S. 168 (1881). The power of a legislative
body to punish for contempt one who disrupts legislative business was
reaffirmed in Groppi v. Leslie, 404 U.S. 496 (1972), but a unanimous
Court there held that due process required a legislative body to give a
contemnor notice and an 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).
---------------------------------------------------------------------------
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\
\242\Id., 542.
\243\294 U.S. 125 (1935).
\244\Id., 150.
---------------------------------------------------------------------------
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\
\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. Sec. 192.
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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\
\247\In re Chapman, 166 U.S. 661, 671-672 (1897).
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[[Page 105]]
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\
\248\Sinclair v. United States, 279 U.S. 263, 296-297 (1929);
Watkins v. United States, 354 U.S. 178, 207 (1957); Sacher v. United
States, 356 U.S. 576, 577 (1958); Flaxer v. United States, 358 U.S. 147,
151 (1958); Deutch v. United States, 367 U.S. 456, 471 (1961); Russell
v. United States, 369 U.S. 749, 755 (1962). Protesting the Court's
reversal of several contempt convictions over a period of years, Justice
Clark was moved to suggest that ``[t]his continued frustration of the
Congress in the use of the judicial process to punish those who are
contemptuous of its committees indicates to me that the time may have
come for Congress to revert to `its original practice of utilizing the
coercive sanction of contempt proceedings at the bar of the House
[affected].''' Id., 781; Watkins, supra, 225.
\249\Cf. Groppi v. Leslie, 404 U.S. 496 (1972).
---------------------------------------------------------------------------
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.
\250\Eastland v. United States Servicemen's Fund, 421 U.S. 491
(1975).
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ARTICLE I
LEGISLATIVE DEPARTMENT
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.
[[Page 106]]
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,
Sec. 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\
\251\The 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.
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Court involvement in this issue developed slowly. In our early
history, state congressional delegations were generally elected at-large
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
[[Page 107]]
question'' doctrine to decline to adjudicate districting and
apportionment suits, a position changed in Baker v. Carr.\259\
\255\Act of June 25, 1842, 5 Stat. 491.
\256\Act of February 2, 1872, 17 Stat. 28.
\257\The 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.
\258\Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285
U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932); Wood v. Broom,
287 U.S. 1 (1932); Mahan v. Hume, 287 U.S. 575 (1932).
\259\369 U.S. 186 (1962).
---------------------------------------------------------------------------
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, Sec. 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\
\260\Wesberry v. Sanders, 376 U.S. 1 (1964).
\261\Id., 7-18.
\262\Id., 20-49.
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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
[[Page 108]]
tact 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\
\263\Kirkpatrick v. Preisler, 385 U.S. 450 (1967), and
Duddleston v. Grills, 385 U.S. 455 (1967), relying on the rule set out
in Swann v. Adams, 385 U.S. 440 (1967), a state legislative case.
\264\394 U.S. 526 (1969). See also Wells v. Rockefeller, 394
U.S. 542 (1969).
\265\Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969).
\266\Id., 531.
\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.
---------------------------------------------------------------------------
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\
\273\White v. Weiser, 412 U.S. 783 (1973). The Court did set
aside the district court's own plan for districting, instructing that
court to adhere more closely to the legislature's own plan insofar as it
reflected permissible goals of the legislators, reflecting an ongoing
deference in legislatures in this area to the extent possible.
\274\Karcher 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.
---------------------------------------------------------------------------
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\
\275\The principal case was Davis v. Bandemer, 478 U.S. 109
(1986), a legislative apportionment case, but no doubt should exist that
congressional districting is covered. See Badham v. Eu, 694 F.Supp. 664
(N.D.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).
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[[Page 109]]
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
[[Page 110]]
cle I, Sec. 2, cl. 1, and are more fully dealt with subsequently in the
treatment of Sec. 5 of the Fourteenth Amendment.
\276\The clause refers only to elections to the House of
Representatives, of course, and, inasmuch as Senators were originally
chosen by state legislatures and presidential electors as the States
would provide, it was only with the qualifications for these voters with
which the Constitution was originally concerned.
\277\Minor 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.
\278\The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth
Amendments limited the States in the setting of qualifications in terms
of race, sex, payment of poll taxes, and age.
\279\The Supreme Court's interpretation of the equal protection
clause has excluded certain qualifications. E.g., Carrington v. Rash,
380 U.S. 89 (1965); Kramer v. Union Free School 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.
\280\The power has been held to exist under Sec. 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\Sec. 4(e), 79 Stat. 437, 439, 42 U.S.C. Sec. 1973b(e), as
amended.
\282\Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).
\283\Titles 2 and 3, 84 Stat. 314, 42 U.S.C. Sec. 1973bb.
\284\Oregon v. Mitchell, 400 U.S. 112, 119-131, 135-144, 239-281
(1970).
\285\Oregon v. Mitchell, 400 U.S. 112, 134, 147-150, 236-239,
285-292 (1970).
\286\Oregon v. Mitchell, 400 U.S. 112, 119-131, 152-213, 293-296
(1970).
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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, Sec. 4, to legislate to
protect that right against both official\288\ and private denial.\289\
\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).
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Clause 2. No person shall be a Representative who shall not have
attained to the Age of twenty-five Years, and been seven Years a Citizen
of the United States, and who shall not, when elected, be an inhabitant
of the State in which he shall be chosen.
QUALIFICATIONS OF MEMBERS OF CONGRESS
When the Qualifications Must Be Possessed
A question much disputed but now seemingly settled is whether a
condition of eligibility must exist at the time of the election or
whether it is sufficient that eligibility exist when the Member-elect
presents himself to take the oath of office. 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\
\290\See 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), Sec. 418; 79 Cong. Rec. 9841-9842 (1935); cf. Hinds'
Precedents, supra, Sec. 429.
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Exclusivity of Constitutional Qualifications
Congressional Additions.--Writing in The Federalist with
reference to the election of Members of Congress, Hamilton firmly
[[Page 111]]
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\
\292\No. 60 (J. Cooke ed. 1961), 409. See also 2 J. Story,
Commentaries on the Constitution of the United States (Boston: 1833),
Sec. Sec. 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 Sec. 3 of the Fourteenth Amendment.
\295\1 A. Hinds' Precedents of the House of Representatives
(Washington: 1907), Sec. Sec. 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., Sec. 464. A Member-elect 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., Sec. Sec. 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), Sec. Sec. 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.
\298\The Court declined to reach the question whether the
Constitution in fact does impose other qualifications. 395 U.S., 520 n.
41 (possibly Article I, Sec. 3, cl. 7, disqualifying persons impeached,
Article I, Sec. 6, cl. 2, incompatible offices, and Sec. 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.
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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
[[Page 112]]
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, Sec. 5 to judge the qualifications of its Members
was limited to ascertaining the presence or absence of the standing
qualifications prescribed in Article I, Sec. 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\
\300\H. Rept. No. 27, 90th Congress, 1st sess. (1967); Id., 395
U.S., 489-493.
\301\Powell v. McCormack, 395 U.S. 486, 518-547 (1969).
\302\Id., 522-531.
\303\Id., 532-539.
\304\Id., 539-541.
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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
[[Page 113]]
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\
\305\Id., 541-547.
\306\Id., 547-548.
\307\The protection of the voters' interest in being represented
by the person of their choice is thus analogized to their
constitutionally secured right to cast a ballot and have it counted in
general elections, Ex parte Yarbrough, 110 U.S. 651 (1884), and in
primary elections, United States v. Classic, 313 U.S. 299 (1941), to
cast a ballot undiluted in strength because of unequally populated
districts, Wesberry v. Sanders. 376 U.S. 1 (1964), and to cast a vote
for candidates of their choice unfettered by onerous restrictions on
candidate qualification for the ballot. Williams v. Rhodes, 393 U.S. 23
(1968).
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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.
\308\Bond v. Floyd, 385 U.S. 116 (1966).
\309\Id., 129-131, 132, 135.
\310\Id., 135 n. 13.
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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
[[Page 114]]
who suffered particular state disqualifications on eligibility, such as
running for Congress while holding particular state offices.\312\
\311\1 A. Hinds' Precedents of the House of Representatives
(Washington: 1907), Sec. 414.
\312\Id., Sec. Sec. 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).
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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.
\313\The part of this clause relating to the mode of
apportionment of representatives among the several States, was changed
by the Fourteenth Amendment, Sec. 2 and as to taxes on incomes without
apportionment, by the Sixteenth Amendment.
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APPORTIONMENT OF SEATS IN THE HOUSE
The Census Requirement
While Sec. 2 expressly provides for an enumeration of persons,
Congress has repeatedly directed an enumeration not only of the
[[Page 115]]
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\
\314\Knox v. Lee (Legal Tender Cases). 12 Wall. (79 U.S.) 457,
536 (1871).
\315\For 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. Sec. 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.
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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
[[Page 116]]
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\
\318\241 U.S. 565 (1916).
\319\Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285
U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932).
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.
ARTICLE I
LEGISLATIVE DEPARTMENT
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\
\320\See Seventeenth Amendment.
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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\
\321\See Seventeenth Amendment.
\322\See Seventeenth Amendment.
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[[Page 117]]
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.
ARTICLE I
LEGISLATIVE DEPARTMENT
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.
[[Page 118]]
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\
\323\5 Stat. 491 (1842). The requirement was omitted in 1850, 9
Stat. 428, but was adopted again in 1862. 12 Stat. 572.
\324\The 1872 Act, 17 Stat. 28, provided that districts should
contain ``as nearly as practicable'' equal numbers of inhabitants, a
provision thereafter retained. In 1901, 31 Stat. 733, a requirement that
districts be composed of ``compact territory'' was added. These
provisions were repeated in the next Act, 37 Stat. 13 (1911), there was
no apportionment following the 1920 Census, and the permanent 1929 Act
omitted the requirements. 46 Stat. 13. Cf. Wood v. Broom, 287 U.S. 1
(1932).
\325\The first challenge was made in 1843. The committee
appointed to inquire into the matter divided, the majority resolving
that Congress had no power to bind the States in regard to their manner
of districting, the minority contending to the contrary. H. Rept. No.
60, 28th Congress, 1st sess. (1843). The basis of the majority view was
that while Article I, Sec. 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. Sec. 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. Sec. 7.
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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
[[Page 119]]
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.\329\Provision
was made for the appointment by federal judges of persons to attend at
places of registration and at elections with authority to challenge any
person proposing to register or vote unlawfully, to witness the counting
of votes, and to identify by their signatures the registration of voters
and election talley sheets.\330\When 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\
\328\Article I, Sec. 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 in federal elections.Ex parte Siebold, 100 U.S.
371 (1880);Ex parte Yarbrough, 110 U.S. 651 (1884).
\329\The Enforcement Act of May 31, 1870, 16 Stat. 140; The
Force Act of February 28, 1871, 16 Stat. 433; The Ku Klux Klan Act of
April 20, 1871, 17 Stat. 13. The text of these and other laws and the
history of the enactments and subsequent developments are set out in R.
Carr, Federal Protection of Civil Rights: Quest for a Sword(Ithaca:
1947).
\330\The 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).
\332\P.L. 85-315, Part IV, Sec. 131, 71 Stat. 634, 637 (1957);
P.L. 86-449, Title III, Sec. 301, Title VI, 601, 74 Stat. 86, 88, 90
(1960); P.L. 88-352, Title I, Sec. 101, 78 Stat. 241 (1964); P.L. 89-
110, 79 Stat. 437 (1965); P.L. 90-284, Title I, Sec. 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. Sec. 1971et seq.The penal statutes are in 18
U.S.C. Sec. Sec. 241-245.
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Another chapter was begun in 1907 when Congress passed the
Tillman Act, prohibiting national banks and corporations from making
contributions in federal elections.\333\The Corrupt Practices Act, first
enacted in 1910 and replaced by another law in 1925, extended federal
regulation of campaign contributions and expendi
[[Page 120]]
tures in federal elections\334\ and other acts have similarly provided
other regulations.\335\
\333\Act of January 26, 1907, 34 Stat. 864, now a part of 18
U.S.C. Sec. 610.
\334\Act of February 28, 1925, 43 Stat. 1070, 2 U.S.C.
Sec. Sec. 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. Sec. Sec. 7324-
7327.
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As we have noted above, although Sec. 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.\337\Where a primary election is an integral part of the
procedure of choice, the right to vote in that primary election is
subject to congressional protection.\338\The 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.\340\The
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\
\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).
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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.\345\It may, in short, utilize its
power under this clause, combined with the nec
[[Page 121]]
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\
\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.
\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.
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].
ARTICLE I
LEGISLATIVE DEPARTMENT
Section 5. Clause 1. Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members, and a Majority of each
shall constitute a Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to compel the Attendance
of absent Members, in such Manner, and under such Penalties as each
House may provide.
Clause 2. Each House may determine the Rules of its Proceedings,
punish its Members for disorderly Behaviour, and, with the Concurrence
of two thirds, expel a Member.
Clause 3. Each House shall keep a Journal of its Proceedings and from
time to time publish the same, excepting such Parts as may in their
Judgment require Secrecy; and the Yeas and Nays of the Members of either
House on any question shall, at the Desire of one fifth of those
Present, be entered on the Journal.
Clause 4. Neither House, during the Session of Congress, shall,
without the Consent of the other, adjourn for more than
[[Page 122]]
three days, nor to any other Place than that in which the two Houses
shall be sitting.
POWERS AND DUTIES OF THE HOUSES
Judge Elections
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.\349\Refusal to permit a person
presenting credentials in due form to take the oath of office does not
oust the jurisdiction of the Senate to inquire into the legality of the
election.\350\Nor does such refusal unlawfully deprive the State which
elected such person of its equal suffrage in the Senate.\351\
\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), Sec. Sec. 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).
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Quorum
``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.\352\The 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
[[Page 123]]
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.''\354\The 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\
\352\A. Hinds'Precedents of the House of
Representatives(Washington: 1907), Sec. Sec. 2895-2905.
\353\144 U.S. 1 (1892).
\354\Id., 5-6.
\355\Rule V.
\356\4 A. Hinds'Precedents of the House of
Representatives(Washington: 1907), Sec. Sec. 2910-2915; 6 C.
Cannon'sPrecedents of the House of Representatives(Washington: 1936),
Sec. Sec. 645, 646.
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Rules of Proceedings
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.''\357\Where 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
[[Page 124]]
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\
\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.
\361\Id., 92-95.
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Power Over Members
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.\362\In upholding the power of the Senate to
investigate charges that some Senators had been speculating in sugar
stocks during the consideration of a tariff bill, the Supreme Court
asserted that ``the right to expel extends to all cases where the
offence is such as in the judgment of the Senate is inconsistent with
the trust and duty of a Member.''\363\It cited with apparent approval
the action of the Senate in expelling William Blount in 1797 for
attempting to seduce from his duty an American agent among the
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\
\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), Sec. 836.
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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 two-thirds 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\
\365\395 U.S. 486 (1969).
\366\Id., 506-512.
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Journal
[[Page 125]]
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.''\367\When the Journal of either House is put in evidence
for the purpose of determining whether the yeas and nays were ordered,
and what the vote was on any particular question, the Journal must be
presumed to show the truth, and a statement therein that a quorum was
present, though not disclosed by the yeas and nays, is final.\368\But
when an enrolled bill, which has been signed by the Speaker of the House
and by the President of the Senate, in open session receives the
approval of the President and is deposited in the Department of State,
its authentication as a bill that has passed Congress is complete and
unimpeachable, and it is not competent to show from the Journals of
either House that an act so authenticated, approved, and deposited, in
fact omitted one section actually passed by both Houses of
Congress.\369\
\367\2 J. Story, Commentaries on the Constitution of the United
States(Boston: 1833), Sec. 840, quoted with approval inField v. Clark,
143 U.S. 649, 670 (1892).
\368\United States v. Ballin, 144 U.S. 1, 4 (1892).
\369\Field v. Clark, 143 U.S. 649 (1892);Flint v. Stone Tracy
Co., 220 U.S. 107, 143 (1911). See the dispute in the Court with regard
to the application of Field in an origination clause dispute. United
States v. Munoz-Flores, 495 U.S. 385, 391 n. 4 (1990), and id., 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).
ARTICLE I
LEGISLATIVE DEPARTMENT
Section 6. Clause 1. The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid out
of the Treasury of the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be privileged from Arrest
during their Attendance at the Session of their respective Houses and in
going to and returning from the same; and for any Speech or Debate in
either House, they shall not be questioned in any other Place.
Clause 2. No Senator or Representative shall, during the Time for
which he was elected, be appointed to any civil Office
[[Page 126]]
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, Privileges
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.
\370\See infra.
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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
[[Page 127]]
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\
\371\P. L. 90-206, Sec. 225, 81 Stat. 642 (1967), as amended, P.
L. 95-19, Sec. 401, 91 Stat. 45 (1977), as amended, P. L. 99-190,
Sec. 135(e), 99 Stat. 1322 (1985).
\372\P. L. 94-82, Sec. 204(a), 89 Stat. 421.
\373\Pressler 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).
\374\P.L. 101-194, 103 Stat. 1716, 2 U.S.C. Sec. 31(2), 5 U.S.C.
Sec. 5318 note, and 2 U.S.C. Sec. Sec. 351-363.
\375\Boehner v. Anderson, 809 F.Supp. 138 (D.D.C. 1992) (holding
Amendment has no effect on present statutory mechanism).
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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.\376\It does not apply to service of process in
either civil\377\ or criminal cases.\378\Nor does it apply to arrest in
any criminal case. The phrase ``treason, felony or breach of the peace''
is interpreted to withdraw all criminal offenses from the operation of
the privilege.\379\
\376\Long 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).
\379\Williamson v. United States, 207 U.S. 425, 446 (1908).
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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.''\380\So Justice Harlan
explained the significance of the speech-and-debate clause, the ancestry
of which traces back to a clause in the English Bill of Rights of 1689
\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
[[Page 128]]
of the legislative process by insuring the independence of individual
legislators.''\384\
\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).
\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).
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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.'''\385\Thus, so long as legislators are ``acting in the sphere of
legitimate legislative activity,'' they are ``protected not only from
the consequence of litigation's results but also from the burden of
defending themselves.''\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.
\385\Powell v. McCormack, 395 U.S. 486, 502 (1969),
quotingKilbourn v. Thompson, 103 U.S. 168, 204 (1881).
\386\Tenney v. Brandhove, 341 U.S. 367, 376-377
(1972);Dombrowski v. Eastland, 387 U.S. 82, 85 (1967);Powell v.
McCormack, 395 U.S. 486, 505 (1969);Eastland v. United States
Servicemen's Fund, 421 U.S. 491, 503 (1975).
\387\Gravel 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.
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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
[[Page 129]]
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.\390\And 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.
\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 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).
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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.\392\A committee had conducted
an authorized investigation into conditions in the schools of the
District of Columbia and had issued a report that the House of
Representatives routinely ordered printed. In the report, named students
were dealt with in an allegedly defamatory manner, and their parents
sued various committee Members and staff and other personnel, including
the Superintendent of Documents and the Public Printer, seeking to
restrain further publication, dissemination, and distribution of the
report until the objectionable material was deleted and also seeking
damages. The Court held that the Members of Congress and the staff
employees had been properly dismissed from the suit, inasmuch as their
actions--conducting the hearings, preparing the report, and authorizing
its publication--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,
[[Page 130]]
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\
\392\Doe v. McMillan, 412 U.S. 306 (1973).
\393\Difficulty 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).
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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.\394\The clause protects more than speech
or debate in either House, the Court affirmed, but in order for the
other matters to be covered ``they must be an integral part of the
deliberative and communicative processes by which Members participate in
committee and House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect to other
matters which the Constitution places within the jurisdiction of either
House.''\395\Press releases and newsletters are ``[v]aluable and
desirable'' in ``inform[ing] the public and other Members'' but neither
are essential to the deliberations of the legislative body nor part of
the deliberative process.\396\
\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).
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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
[[Page 131]]
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\
\397\383 U.S. 169 (1966).
\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.
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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\
\399\408 U.S. 501 (1972).
\400\Id., 516.
\401\Id., 526.
\402\The 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.
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[[Page 132]]
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\
\403\408 U.S. 606 (1972).
\404\Id., 626.
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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
[[Page 133]]
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\
\405\Language in some of the Court's earlier opinions had
indicated that the privilege ``is less absolute, although applicable,''
when a legislative aide is sued, without elaboration of what was
meant.Dombrowski v. Eastland, 387 U.S. 82, 85 (1967);Tenney v.
Brandhove, 341 U.S. 367, 378 (1951). 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).
\410\Id., 616-617.
\411\Id., 618.
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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.\412\Dombrowskiwas 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.''\413\AndPowellwas 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\
\412\Id., 618-619.
\413\Id., 619-620.
\414\Id., 620-621.
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[[Page 134]]
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.''\415\As might be
expected, there is no judicial interpretation of the language of the
clause and indeed it has seldom surfaced as an issue.
\415\2 J. Story, Commentaries on the Constitution of the United
States(Boston: 1833), Sec. 864.
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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.\417\The clause became a subject of discussion in 1937, when
Justice Black was appointed to the Court, because Congress had recently
increased the amount of pension available to Justices retiring at
seventy and Mr. Black's Senate term had still 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.\418\In 1969, it was briefly
questioned whether a Member of the House of Representatives could be
appointed Secretary of Defense because, under a salary bill enacted in
the previous Congress, the President would propose a salary increase,
including that of cabinet officers, early in the new Congress which
would take effect if Congress did not disapprove it. The Attorney
General ruled that inasmuch as the clause would not apply if the
increase were proposed and approved subsequent to the appointment, it
[[Page 135]]
similarly would not apply in a situation in which it was uncertain
whether the increase would be approved.\419\
\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).
\418\The matter gave rise to a case, Ex parte Albert Levitt, 302
U.S. 633 (1937), in which the Court declined to pass upon the validity
of Justice Black's appointment. The Court denied the complainant
standing, but strangely it did not advert to the fact that it was being
asked to assume original jurisdiction contrary toMarbury v. Madison, 1
Cr. (5 U.S.) 137 (1803).
\419\42 Op. Atty. Gen. No. 36 (January 3, 1969).
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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.\421\Government contractors and federal officers who resign
before presenting their credentials may be seated as Members of
Congress.\422\
\420\The Federalist, No. 76 (Hamilton) (J. Cooke ed. 1961), 514;
2 J. Story, Commentaries on the Constitution of the United
States(Boston: 1833), Sec. Sec. 866-869.
\421\1 A. Hinds'Precedents of the House of
Representatives(Washington: 1907), Sec. 493; 6 C. Cannon'sPrecedents of
the House of Representatives(Washington: 1936), Sec. Sec. 63-64.
\422\Hinds', supra, Sec. Sec. 496-499.
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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.\423\Members 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\
\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, Sec. Sec. 486-492, 494; Cannon's, supra,
Sec. Sec. 60-62.
\425\An effort to sustain standing was rebuffed inSchlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208 (1974).
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ARTICLE I
LEGISLATIVE DEPARTMENT
Section 7. Clause 1. All Bills for raising Revenue shall originate in
the House of Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
Clause 2. Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a Law,
[[Page 136]]
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.
Legislative Process
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
[[Page 137]]
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\
\426\The Federalist, No. 58 (J. Cooke ed. 1961), 392-395
(Madison). See United States v. Munoz-Flores, 495 U.S. 385, 393-395
(1990).
\427\The 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).
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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.\429\An act providing a
national currency secured by a pledge of bonds of the United States,
which, ``in the furtherance of that object, and also to meet the
expenses attending the execution of the act,'' imposed a tax on the
circulating notes of national banks was held not to be a revenue measure
which must originate in the House of Representatives.\430\Neither was a
bill that provided that the District of Columbia should raise by
taxation and pay to designated railroad companies a specified sum for
the elimination of grade crossings and the construction of a railway
station.\431\The 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.
\428\2 J. Story, Commentaries on the Constitution of the United
States(Boston: 1833), Sec. 880.
\429\United States v. Munoz-Flores, 495 U.S. 385 (1990).
\430\Twin City National Bank v. Nebeker, 167 U.S. 196 (1897).
\431\Millard v. Roberts, 202 U.S. 429 (1906).
\432\Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911).
\433\Rainey v. United States, 232 U.S. 310 (1914).
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Approval by the President
The President is not restricted to signing a bill on a day when
Congress is in session.\434\He may sign within ten days (Sundays
excepted) after the bill is presented to him, even if that period ex
[[Page 138]]
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.\436\A bill becomes a law on the date of its approval by the
President.\437\When 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\
\434\La Abra Silver Mining Co. v. United States, 175 U.S. 423,
453 (1899).
\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).
\436\Gardner v. Collector, 6 Wall. (73 U.S.) 499 (1868).
\437\Id., 504.See also Burgess v. Salmon, 97 U.S. 381, 383
(1878).
\438\Matthews v. Zane, 7 Wheat. (20 U.S.) 164, 211 (1822).
\439\Lapeyre v. United States, 17 Wall. (84 U.S.) 191, 198
(1873).
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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 Sec. 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.''\440\At
the same time, the sections ensure ``that the Congress shall have
suitable opportunity to consider his objections to bills and on such
consideration to pass them over his veto provided there are the
requisite votes.''\441\The Court asserted that ``[w]e should not adopt a
construction which would frustrate either of these purposes.''\442\
\440\Wright v. United States, 302 U. S. 583, 596 (1938).
\441\Ibid.
\442\Ibid.
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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
[[Page 139]]
been debated whether Congress could by statute authorize a form of the
line-item veto, but, again, nothing passed.\443\
\443\See Line Item Veto, Hearing before the Senate Committee on
Rules and Administration, 99th Cong., 1st sess. (1985), esp. 10-20 (CRS
memoranda detailing the issues). Some publicists have even contended,
through a strained interpretation of clause 3, actually from its
intended purpose to prevent Congress from subverting the veto power by
calling a bill by some other name, that the President already possesses
the line-item veto, but no President could be brought to test the
thesis. See Pork Barrels and Principles - The Politics of the
Presidential Veto, (Natl.Legal Center for the Public Interest, 1988)
(collecting essays).
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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.''\445\Because
neither House was in session to receive the bill, the President was
prevented from returning it. It had been argued to the Court that the
return may be validly accomplished to a proper agent of the house of
origin for consideration when that body convenes. After first noting
that Congress had never authorized an agent to receive bills during
adjournment, the Court opined that ``delivery of the bill to such
officer or agent, even if authorized by Congress itself, would not
comply with the constitutional mandate.''\446\
\444\279 U.S. 655 (1929).
\445\Id., 680.
\446\Id., 684.
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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
[[Page 140]]
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.''\448\Such a procedure complied with the
constitutional provisions. ``The Constitution does not define what shall
constitute a return of a bill or deny the use of appropriate agencies in
effecting the return.''\449\The 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\
\447\302 U.S. 583 (1938).
\448\Id., 589-590.
\449\Id., 589.
\450\Id., 595.
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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.
\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).
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The two-thirds vote of each House required to pass a bill over a
veto means two-thirds of a quorum.\452\After 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
[[Page 141]]
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\
\452\Missouri Pacific Ry. Co. v. Kansas, 248 U.S. 276 (1919).
\453\20 Wall. (87 U.S.) 92 (1874).
\454\12 Stat. 589 (1862).
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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.\456\Also,
it was settled as early as 1789 that resolutions of Congress proposing
amendments to the Constitution need not be submitted to the President,
the Bill of Rights having been referred to the States without being laid
before President Washington for his approval--a procedure the Court
ratified in due course.\457\
\455\See 2 M. Farrand, The Records of the Federal Convention of
1787 (rev. ed. 1937), 301-302, 304-305.
\456\S. Rept. No. 1335, 54th Congress, 2d Sess.; 4 A.
Hinds'Precedents of the House of Representatives(Washington: 1907),
Sec. 3483.
\457\Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378 (1798).
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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\
[[Page 142]]
The proliferation of ``congressional veto'' provisions in legislation
over the years raised a series of interrelated constitutional
questions.\460\Congress until relatively recently had applied the veto
provisions to some action taken by the President or another executive
officer--such as a reorganization of an agency, the lowering or raising
of tariff rates, the disposal of federal property--then began expanding
the device to give itself a negative over regulations issued by
executive branch agencies, and proposals were made to give Congress a
negative over all regulations issued by executive branch independent
agencies.\461\
\458\Act of June 30, 1932, Sec. 407, 47 Stat. 414.
\459\See, e.g., Lend Lease Act of March 11, 1941, 55 Stat. 31;
First War Powers Act of December 18, 1941, 55 Stat. 838; Emergency Price
Control Act of January 30, 1942, 56 Stat. 23; Stabilization Act of
October 2, 1942, 56 Stat. 765; War Labor Disputes Act of June 25, 1943,
57 Stat. 163, all providing that the powers granted to the President
should come to an end upon adoption of concurrent resolutions to that
effect.
\460\From 1932 to 1983, by one count, nearly 300 separate
provisions giving Congress power to halt or overturn executive action
had been passed in nearly 200 acts; substantially more than half of
these had been enacted since 1970. A partial listing was included 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).
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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, Sec. Sec. 1 and 7, and the presentment
provisions of Sec. 7, cl. 2 and 3.The provision in question was
Sec. 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.\463\In the words of dissenting
[[Page 143]]
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\
\462\462 U.S. 919 (1983).
\463\Shortly after deciding Chadha, the Court removed any doubts
on this score with summary affirmance of an appeals court's invalidation
of a two-House veto in Consumers Union v. FTC, 691 F.2d 575 (D.C.Cir.
1982), 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
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.
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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\
\465\Id., 952 (citation omitted).
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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\
\466\Id., 955-56.
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The breadth of the Court's ruling in Chadha was evidenced in its
1986 decision in Bowsher v. Synar.\467\Among the rationales for holding
the Deficit Control Act unconstitutional was the Court's assertion that
Congress had, in effect, retained control over executive action in a
manner resembling a congressional veto.``[A]s Chadha makes clear, once
Congress makes its choice in enacting legislation,
[[Page 144]]
its participation ends.Congress can thereafter control the execution of
its enactment only indirectly--by passing new
legislation.''\468\Congress had offended this principle by retaining
removal authority over the Comptroller General, charged with executing
important aspects of the Budget Act.
\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).
\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.
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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.
ARTICLE I
LEGISLATIVE DEPARTMENT
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.
\469\License 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.
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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
[[Page 145]]
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\
\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).
\476\Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939).
Collector v. Day was decided in 1871 while the country was still in the
throes of Reconstruction. As noted by Chief Justice Stone in a footnote
to his opinion in Helvering v. Gerhardt, 304 U.S. 405, 414 n. 4 (1938),
the Court had not determined how far the Civil War Amendments had
broadened the federal power at the expense of the States, but the fact
that the taxing power had recently been used with destructive effect
upon notes issued by the state banks, Veazie Bank v. Fenno, 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.
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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
[[Page 146]]
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\
\478\12 Wheat. (25 U.S.) 419, 444 (1827).
\479\Snyder v. Bettman, 190 U.S. 249, 254 (1903).
\480\South Carolina v. United States, 199 U.S. 437 (1905). See
also Ohio v. Helvering, 292 U.S. 360 (1934).
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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.
\481\220 U.S. 107 (1911).
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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.
\482\Greiner v. Lewellyn, 258 U.S. 384 (1922).
\483\Wheeler 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).
\486\Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949).
\487\Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926).
\488\Helvering v. Powers, 293 U.S. 214 (1934).
\489\Willcuts 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).
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In finally overruling Pollock, the Court stated that Pollock had
``merely represented one application of the more general rule that
[[Page 147]]
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\
\491\South Carolina v. Baker, 485 U.S. 505, 517 (1988).
\492\Id., 524.
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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\
\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.
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[[Page 148]]
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\
\496\326 U.S. 572 (1946).
\497\Id., 584.
\498\Id., 589-590.
\499\Id., 596.
\500\Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949). Cf.
Massachusetts v. United States, 435 U.S. 444 (1978).
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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
[[Page 149]]
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\
\501\485 U.S. 505 (1988).
\502\Id., 523.
\503\Id., 524 n. 14.
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Uniformity Requirement.--Whether a tax is to be apportioned
among the States according to the census taken pursuant to Article I,
Sec. 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,''\507\the fact that Congress described
the exemption in geographic terms did not condemn the provision.
\504\See also Article I, Sec. 9, cl. 4.
\505\LaBelle 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.
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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
[[Page 150]]
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.
\508\Knowlton v. Moore, 178 U.S. 41 (1900).
\509\Fernandez v. Wiener, 326 U.S. 340 (1945); Riggs v. Del
Drago, 317 U.S. 95 (1942); Phillips v. Commissioner, 283 U.S. 589
(1931); Poe v. Seaborn, 282 U.S. 101, 117 (1930).
\510\Florida v. Mellon, 273 U.S. 12 (1927).
\511\Downes 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.
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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
[[Page 151]]
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\
\513\License 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).
\517\License Tax Cases, 5 Wall. (72 U.S.) 462, 471 (1867).
\518\Felsenheld 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).
\521\Sonzinsky v. United States, 300 U.S. 506 (1937).
\522\Without casting doubt on the ability of Congress to
regulate or punish through its taxing power, the Court has overruled
Kahriger, Lewis, Doremus, Sonzinsky, and similar cases on the ground
that the statutory scheme compelled self-incrimination through
registration. Marchetti v. United States, 390 U.S. 39 (1968); Grosso v.
United States, 390 U.S. 62 (1968); Haynes v. United States, 390 U.S. 85
(1968); Leary v. United States, 395 U.S. 6 (1969).
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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\
\523\McCray 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).
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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
[[Page 152]]
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.
\525\Sunshine Coal Co. v. Adkins, 310 U.S. 381, 383 (1940). See
also Head Money Cases, 112 U.S. 580, 596 (1884).
\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).
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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 Sec. 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.''
\528\1 Stat. 24 (1789).
\529\276 U.S. 394 (1928).
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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
[[Page 153]]
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\
\530\Id., 411-412.
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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.
\531\3 Writings of Thomas Jefferson (Library Edition, 1904),
147-149.
\532\See W. Crosskey, Politics and the Constitution in the
History of the United States (Chicago: 1953).
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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
[[Page 154]]
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.
\533\The 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).
\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.
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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.
\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.
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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
[[Page 155]]
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
Sec. 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\
\543\297 U.S. 1 (1936). See also Cleveland v. United States, 323
U.S. 329 (1945).
\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).
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Social Security Act Cases.--Although holding that the spending
power is not limited by the specific grants of power contained in
Article I, Sec. 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
[[Page 156]]
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\
\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).
\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).
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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.
\549\South 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).
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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
[[Page 157]]
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\
\552\301 U.S. 548, 589, 590 (1937).
\553\330 U.S. 127 (1947).
\554\Id., 143.
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``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
[[Page 158]]
activities that would themselves be unconstitutional.\561\Fifth, the
Court has suggested that in some circumstances the financial inducement
offered by Congress might be so coercive as to pass the point at which
``pressure turns into compulsion,''\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\
\555\Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Chief
Justice Burger announcing judgment of the Court).
\556\See 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).
\559\South 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).
\560\The 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.
\561\South Dakota v. Dole, 483 U.S. 203, 210-211 (1987).
\562\Steward Machine Co. v. Davis, 301 U.S. 548, 589-590 (1937);
South Dakota v. Dole, 483 U.S. 203, 211-212 (1987).
\563\See 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).
\564\South Dakota v. Dole, 483 U.S. 203, 210 (1987).
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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\
\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.
Sec. 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.
Sec. 2000d; Title IX of the Educational Amendments of 1972, 20 U.S.C.
Sec. 1681; Title V of the Rehabilitation Act of 1973, 29 U.S.C.
Sec. 794.
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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.
\568\Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937).
\569\301 U.S. 619 (1937).
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Debts of the United States.--The power to pay the debts of the
United States is broad enough to include claims of citizens aris
[[Page 159]]
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\
\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.
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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\
\574\2 M. Farrand, The Records of the Federal Convention of 1787
(New Haven: rev. ed. 1937), 144, 308-309.
\575\Id., 310.
\576\Knox v. Lee (Legal Tender Cases), 12 Wall. (79 U.S.) 457
(1871), overruling Hepburn v. Griswold, 8 Wall. (75 U.S.) 603 (1870).
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[[Page 160]]
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\
\577\Perry v. United States, 294 U.S. 330, 351 (1935). See also
Lynch v. United States, 292 U.S. 571 (1934).
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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.
\578\E. Prentice & J. Egan, The Commerce Clause of the Federal
Constitution (Chicago: 1898), 14.
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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
[[Page 161]]
rejected 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.
\579\That is, ``cum merce (with merchandise).''
\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.''
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``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, Sec. 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\
\582\Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 189 (1824).
\583\Id., 190-194.
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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\
\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 common 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).
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[[Page 162]]
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
[[Page 163]]
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.
\588\Kidd v. Pearson, 128 U.S. 1 (1888); Oliver Iron Co. v.
Lord, 262 U.S. 172 (1923); United States v. E. C. Knight Co., 156 U.S. 1
(1895); and see Carter v. Carter Coal Co., 298 U.S. 238 (1936).
\589\Paul 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).
\590\Federal Baseball League v. National League of Professional
Baseball Clubs, 259 U.S. 200 (1922). When called on to reconsider its
decision, the Court declined, noting that Congress had not seen fit to
bring the business under the antitrust laws by legislation having
prospective effect and that the business had developed under the
understanding that it was not subject to these laws, a reversal of which
would have retroactive effect. Toolson v. New York Yankees, 346 U.S. 356
(1953). In Flood v. Kuhn, 407 U.S. 258 (1972), the Court recognized
these decisions as aberrations, but it thought the doctrine entitled to
the benefits of stare decisis 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).
\592\Williams v. Fears, 179 U.S. 270 (1900). See also Diamond
Glue Co. v. United States Glue Co., 187 U.S. 611 (1903); Browning v.
City of Waycross, 233 U.S. 16 (1914); General Railway Signal Co. v.
Virginia, 246 U.S. 500 (1918). But see York Manufacturing Co. v. Colley,
247 U.S. 21 (1918).
\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).
\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).
\598\Sunshine 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).
\599\Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford
v. Wallace, 258 U.S. 495 (1922); Chicago Board of Trade v. Olsen, 262
U.S. 1 (1923).
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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\
\600\9 Wheat. (22 U.S.) 1, 194, 195 (1824).
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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
[[Page 164]]
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\
\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).
\602\Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford
v. Wallace, 258 U.S. 495 (1922); Chicago Board of Trade v. Olsen, 262
U.S. 1 (1923).
\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).
\606\Gibbons 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).
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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
[[Page 165]]
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\
\607\Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 196-197 (1824).
---------------------------------------------------------------------------
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\
\608\Brooks v. United States, 267 U.S. 432, 436-437 (1925).
\609\United States v. Darby, 312 U.S. 100, 114 (1941).
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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 Sec. 8.
\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).
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Necessary and Proper Clause.--All grants of power to Congress in
Sec. 8, as elsewhere, must be read in conjunction with the final clause,
cl. 18, of Sec. 8, which authorizes Congress ``[t]o make all
[[Page 166]]
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\
\613\See infra.
\614\Gibbons 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).
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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
[[Page 167]]
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\
\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).
\618\For example, federal regulation of the wages and hours of
certain state and local governmental employees has alternatively been
upheld and invalidated. See Maryland v. Wirtz, 392 U.S. 183 (1968),
overruled in National League of Cities v. Usery, 426 U.S. 833 (1976),
overruled in Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S.
528 (1985).
\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.
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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\
\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).
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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
[[Page 168]]
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\
\623\Lottery Case (Champion v. Ames), 188 U.S. 321, 373-374
(1903).
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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\
\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.
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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
[[Page 169]]
tions imposed upon Congress' powers, as by the due process clause of the
Fifth Amendment, are not transgressed.\627\
\625\License Cases, 5 How. (46 U.S.) 504, 578 (1847).
\626\Pittsburgh & Southern Coal Co. v. Bates, 156 U.S. 577, 587
(1895).
\627\United States v. Carolene Products Co., 304 U.S. 144, 147-
148 (1938).
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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 stage-coach, 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\
\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).
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The Radio Act of 1927 \631\ whereby ``all forms of interstate
and foreign radio transmissions within the United States, its Terri
[[Page 170]]
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\
\631\Act of March 28, 1927, 45 Stat. 373, superseded by the
Communications Act of 1934, 48 Stat. 1064, 47 U.S.C. Sec. 151 et seq.
\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).
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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\
\633\13 How. (54 U.S.) 518 (1852).
\634\10 Stat 112, 6 (1852).
\635\Pennsylvania 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.
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[[Page 171]]
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\
\637\3 Wall. (70 U.S.) 713 (1866).
\638\Id., 724-725.
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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
[[Page 172]]
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\
\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. Sec. 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).
\640\Gibson v. United States, 166 U.S. 269 (1897). See also
Bridge Co. v. United States, 105 U.S. 470 (1882); United States v Rio
Grande Irrigation Co., 174 U.S. 690 (1899); United States v. Chandler-
Dunbar Co., 229 U.S. 53 (1913); Seattle v. Oregon & W.R.R., 255 U.S. 56,
63 (1921); Economy Light Co. v. United States, 256 U.S. 113 (1921);
United States v. River Rouge Co., 269 U.S. 411, 419 (1926); Ford & Son
v. Little Falls Co., 280 U.S. 369 (1930); United States v. Commodore
Park, 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).
\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).
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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\
\644\10 Wall. (77 U.S.) 557 (1871).
\645\Id., 565.
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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
[[Page 173]]
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\
\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).
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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
[[Page 174]]
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\
\648\Pollard v. Hagan, 3 How. (44 U.S.) 212 (1845); Shively v.
Bowlby, 152 U.S. 1 (1894).
\649\Green 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).
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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\
\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).
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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
[[Page 175]]
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\
\655\311 U.S., 407, 409-410.
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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\
\656\Id., 426.
\657\Oklahoma v. Atkinson Co., 313 U.S. 508, 523-533 passim
(1941).
\658\Ashwander v. Tennessee Valley Authority, 297 U.S. 288
(1936).
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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\
\659\Cf. Indiana v. United States, 148 U.S. 148 (1893).
\660\12 Stat. 489 (1862); 13 Stat. 356 (1864); 14 Stat. 79
(1866).
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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
[[Page 176]]
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\
\661\The 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.
\662\Thomson 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).
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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\
\663\14 Stat. 66 (1866).
\664\14 Stat. 221 (1866).
\665\17 Stat. 353 (1873).
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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
[[Page 177]]
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\
\666\Munn 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).
\667\Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557
(1886). A variety of state regulations have been struck down on the
burdening-of-commerce rationale. E.g., Southern Pacific Co. v. Arizona
ex rel. Sullivan, 325 U.S. 761 (1945) (train length); Napier v. Atlantic
Coast Line R., 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).
\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).
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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.
\671\34 Stat. 584 (1906).
\672\36 Stat. 539 (1910).
\673\These regulatory powers are now vested, of course, in the
Federal Communications Commission.
\674\49 Stat. 543 (1935).
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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
[[Page 178]]
begun as a method of restraint there has emerged a policy of encouraging
a consistent national transportation policy.\678\
\675\41 Stat. 474 (1920).
\676\54 Stat. 898 (1940), U.S.C. Sec. 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.
\677\Disputes between the ICC and other Government agencies over
mergers have occupied a good deal of the Court's time. Cf. United States
v. ICC, 396 U.S. 491 (1970). See also County of Marin v. United States,
356 U.S. 412 (1958); McLean Trucking Co. v. United States, 321 U.S. 67
(1944); Penn-Central Merger & N & W Inclusion Cases, 389 U.S. 486
(1968).
\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).
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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\
\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).
---------------------------------------------------------------------------
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\
\680\Wisconsin 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.
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[[Page 179]]
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\
\681\27 Stat. 531, 45 U.S.C. Sec. Sec. 1-7.
\682\32 Stat. 943, 45 U.S.C. Sec. Sec. 8-10.
\683\Southern 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. Sec. Sec. 61-64.
\685\Baltimore & Ohio Railroad v. ICC, 221 U.S. 612 (1911).
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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\
\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. Sec. Sec. 51-60.
\688\The Second Employers Liability Cases, 223 U.S. 1 (1912).
For a longer period, a Court majority reviewed a surprising large number
of FELA cases, almost uniformly expanding the scope of recovery under
the statute. Cf. Rogers v. Missouri Pacific R., 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.
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[[Page 180]]
Legislation and litigation dealing with the organizational
rights of rail employees are dealt with elsewhere.\689\
\689\Infra, pp. 189-190, 191 n. 739.
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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\
\690\The 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).
\691\Public 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. Sec. Sec. 791a-825u.
\693\52 Stat. 821, 15 U.S.C. Sec. Sec. 717-717w.
\694\FPC 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).
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Other acts regulating commerce and communication originating in
this period have evoked no basic constitutional challenge.
[[Page 181]]
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\
\696\48 Stat. 1064, 47 U.S.C. Sec. 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. Sec. 106, as part of the Department of Transportation.
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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.''
\698\26 Stat. 209 (1890); 15 U.S.C. Sec. Sec. 1-7.
\699\156 U.S. 1 (1895).
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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
[[Page 182]]
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\
\700\Id., 13.
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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.
\701\Id., 13-16.
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``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\
\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, 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.
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[[Page 183]]
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.
\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.
---------------------------------------------------------------------------
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
[[Page 184]]
``scheme as a whole'' came within the act, and that the local activities
alleged were simply part and parcel of this general scheme.\705\
\705\Swift and Co. v. United States, 196 U.S. 375, 396 (1905).
---------------------------------------------------------------------------
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.
\706\Id., 398-399.
\707\Id., 399-401.
---------------------------------------------------------------------------
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.
\708\Id., 400.
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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
[[Page 185]]
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\
\709\Loewe v. Lawlor (The Danbury Hatters Case), 208 U.S. 274
(1908); Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921);
Coronado Co. v. United Mine Workers, 268 U.S. 295 (1925); United States
v. Bruins, 272 U.S. 549 (1926); Bedford Co. v. Stone Cutters 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).
---------------------------------------------------------------------------
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.
\710\42 Stat. 159, 7 U.S.C. Sec. Sec. 171-183, 191-195, 201-203.
\711\42 Stat. 998 (1922), 7 U.S.C. Sec. Sec. 1-9, 10a-17.
---------------------------------------------------------------------------
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\
\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).
---------------------------------------------------------------------------
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
[[Page 186]]
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\
\715\262 U.S. 1 (1923).
\716\Id., 35.
---------------------------------------------------------------------------
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\
\717\Id., 40.
\718\Id., 37, quoting Stafford v. Wallace, 258 U.S. 495, 521
(1922).
---------------------------------------------------------------------------
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
[[Page 187]]
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 Sec. 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.
\719\48 Stat. 881, 15 U.S.C. Sec. 77b et seq.
\720\49 Stat. 803, 15 U.S.C. Sec. Sec. 79-79z-6.
\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).
---------------------------------------------------------------------------
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\
\722\Appalachian Coals v. United States, 288 U.S. 344, 372
(1933).
---------------------------------------------------------------------------
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
[[Page 188]]
ing hours, wages and collective bargaining. For the time being, business
and industry were to be cartelized on a national scale.
\723\48 Stat. 195.
---------------------------------------------------------------------------
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\
\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.
---------------------------------------------------------------------------
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\
\727\48 Stat. 31 (1933).
\728\United States v. Butler, 297 U.S. 1, 63-64, 68 (1936).
---------------------------------------------------------------------------
Bituminous Coal Conservation Act.--The third measure to be
disallowed was the Guffey-Snyder Bituminous Coal Conserva
[[Page 189]]
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\
\729\49 Stat. 991 (1935).
\730\Carter v. Carter Coal Co., 298 U.S. 238 (1936).
\731\Id., 308-309.
---------------------------------------------------------------------------
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.
[[Page 190]]
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\
\732\48 Stat. 1283 (1934).
\733\295 U.S. 330 (1935).
\734\Id., 374.
---------------------------------------------------------------------------
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\
\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).
---------------------------------------------------------------------------
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
[[Page 191]]
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\
\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 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 ``Court-Packing'' 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. Sec. 151 et seq.
\739\The 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. Sec. 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).
---------------------------------------------------------------------------
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
[[Page 192]]
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\
\740\NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38, 41-42
(1937).
---------------------------------------------------------------------------
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\
\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).
---------------------------------------------------------------------------
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\
\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).
---------------------------------------------------------------------------
Fair Labor Standards Act.--In 1938, Congress enacted the Fair
Labor Standards Act. The measure prohibited not only the
[[Page 193]]
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
[[Page 194]]
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\
\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. Sec. 201 et seq. See 29 U.S.C. Sec. Sec. 203(r),
203(s), 206(a), 207(a).
\749\United States v. Darby, 312 U.S. 100, 115 (1941).
\750\Id., 113, 114, 118.
\751\Id., 123-124.
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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\
\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. Sec. Sec. 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).
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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,
[[Page 195]]
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\
\759\50 Stat. 246, 7 U.S.C. Sec. 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.
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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
[[Page 196]]
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. Home-grown 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\
\762\317 U.S. 111 (1942).
\763\52 Stat. 31, 7 U.S.C. Sec. Sec. 612c, 1281-1282 et seq.
\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.
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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
[[Page 197]]
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
[[Page 198]]
strange process, it has been merged or extinguished, and now exists no
where.''\766\
\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).
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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, Sec. 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\
\767\289 U.S. 48 (1933).
\768\Id., 57, 58.
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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
[[Page 199]]
1909 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\
\769\5 Stat. 566, 28.
\770\9 Stat. 237 (1848).
\771\24 Stat. 409.
\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).
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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.
\776\239 U.S. 325 (1915).
\777\Id., 329.
\778\236 U.S. 216 (1915).
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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\
\779\Groves v. Slaughter, 15 Pet. (40 U.S.) 449, 488-489 (1841).
\780\312 U.S. 100 (1941).
\781\The judicial history of the argument may be examined in the
majority and dissenting opinions in Hammer v. Dagenhart, 247 U.S. 251
(1918), a five-to-four decision, in which the majority held Congress not
to be empowered to ban from the channels of interstate commerce goods
made with child labor, since Congress' power was to prescribe the rule
by which commerce was to be carried on and not to prohibit it, except
with regard to those things the character of which--diseased cattle,
lottery tickets--was inherently evil. With the majority opinion, compare
Justice Stone's unanimous opinion in United States v. Darby, 312 U.S.
100, 112-124 (1941), overruling Hammer v. Dagenhart. See also Corwin,
The Power of Congress to Prohibit Commerce, 3 Selected Essays on
Constitutional Law (Chicago: 1938), 103.
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[[Page 200]]
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.
\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).
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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
[[Page 201]]
National Government, and the right to engage in foreign and interestate
commerce comes from the Constitution itself or is anterior to it.
\789\Lottery Case (Champion v. Ames), 188 U.S. 321 (1903).
\790\28 Stat. 963.
\791\143 U.S. 110 (1892).
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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.''
\792\9 Wheat. (22 U.S.) 1, 227 (1824).
\793\114 U.S. 622, 630 (1885).
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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
[[Page 202]]
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\
\794\Hoke v. United States, 227 U.S. 308, 322 (1913).
\795\United States v. Hill, 248 U.S. 420, 425 (1919).
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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\
\796\267 U.S. 432 (1925).
\797\41 Stat. 324 (1919), 18 U.S.C., Sec. Sec. 2311-2313.
\798\Id., 436-439. See also Kentucky Whip & Collar Co. v. I.C.R.
Co., 299 U.S. 334 (1937).
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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
[[Page 203]]
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\
\799\29 U.S.C. Sec. Sec. 201-219.
\800\United States v. Darby, 312 U.S. 100 (1941).
\801\247 U.S. 251 (1918).
\802\Id., 312 U.S., 116-117.
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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.
\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.
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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\
\804\New York v. United States, 112 S.Ct. 2408, 2418-2419
(1992).
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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.
[[Page 204]]
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\
\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).
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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
[[Page 205]]
completed an interstate shipment and are being held for future sales in
purely local or intrastate commerce.''\809\
\806\Katzenbach 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, Sec. 7603, 18 U.S.C. Sec. 1346.
\808\332 U.S. 689 (1948).
\809\Id., 698-699.
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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\
\810\317 U.S. 111 (1942).
\811\Fry v. United States, 421 U.S. 542, 547 (1975).
\812\See Maryland v. Wirtz, 392 U.S. 183, 188-193 (1968).
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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
[[Page 206]]
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\
\813\Hodel v. Indiana, 452 U.S. 314, 323-324 (1981).
\814\Id., 324.
\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.
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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.
\817\402 U.S. 146 (1971).
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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
[[Page 207]]
pants and potential participants in the market from which the surgeon
was being excluded.\820\
\818\Russell v. United States, 471 U.S. 858, 862 (1985).
\819\Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991).
\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.
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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-of-
the-way restaurant in Birmingham that catered to a local clientele but
which had spent 46 percent of its previous year's out-go on meat from a
local supplier who had procured it from out-of-state,\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\
\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. Sec. 2000a et seq.
\823\42 U.S.C. Sec. 2000a (b).
\824\Heart of Atlanta Motel v. United States, 379 U.S. 241
(1964).
\825\Katzenbach v. McClung, 379 U.S. 294 (1964).
\826\Daniel v. Paul, 395 U.S. 298 (1969).
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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\
\827\Heart of Atlanta Motel v. United States, 379 U.S. 241, 258
(1964); Katzenbach v. McClung, 379 U.S. 294, 301-304 (1964).
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[[Page 208]]
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\
\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).
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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\
\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).
\831\The ``open housing'' provision of the 1968 Civil Rights
Act, Title VIII, 82 Stat. 73, 81, 42 U.S.C. Sec. 3601, was based on the
commerce clause, but in Jones v. Alfred H. Mayer Co., 392 U.S. 409
(1968), the Court held that antidiscrimination-in-housing legislation
could be based on the Thirteenth Amendment and made operative against
private parties. Similarly, the Court has concluded that although Sec. 1
of the Fourteenth Amendment is judicially enforceable only against
``state action,'' Congress is not so limited under its enforcement
authorization of Sec. 5. United States v. Guest, 383 U.S. 745, 761, 774
(1966) (concurring opinions); Griffin v. Breckenridge, 403 U.S. 88
(1971).
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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
[[Page 209]]
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.
\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).
\833\18 U.S.C. Sec. 2421.
\834\18 U.S.C. Sec. 2312.
\835\18 U.S.C. Sec. 1201.
\836\18 U.S.C. Sec. 1951. And see, 18 U.S.C. Sec. 1952.
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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\
\837\Title II, 82 Stat. 159 (1968), 18 U.S.C. Sec. 891 et seq.
\838\Perez v. United States, 402 U.S. 146 (1971). See also
Russell v. United States, 471 U.S. 858 (1985).
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Expansion of federal criminal jurisdiction proceeds apace with
the outflow from each Congress.\839\
\839\E.g., laws that bar firearms within a 1000 feet of a
school, 104 Stat. 4844 (1990), 18 U.S.C. Sec. 922(q), and that punish
carjacking when a firearm is used. 106 Stat. 3384 (1992), 18 U.S.C.
Sec. 2119.
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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
[[Page 210]]
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?
\840\Thus, by Article I, Sec. 10, cl. 2, States are denied the
power to ``lay any Imposts or Duties on Imports or Exports'' except by
the consent of Congress. The clause applies only to goods imported from
or exported to another country, not from or to another State, Woodruff
v. Parham, 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).
\841\The Federalist No. 32 (J. Cooke ed. 1961), 199-203. Note
that in connection with the discussion that follows, Hamilton avowed
that the taxing power of the States, save for imposts or duties on
imports or exports, ``remains undiminished.'' Id, 201. The States
``retain [the taxing] authority in the most absolute and unqualified
sense[.]'' Id., 199.
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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\
\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.
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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
[[Page 211]]
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.''
\844\The strongest suggestion of exclusivity found in the
Convention debates is a remark by Madison. ``Whether the States are now
restrained from laying tonnage duties depends on the extent of the power
`to regulate commerce.' These terms are vague but seem to exclude this
power of the States.'' 2 M. Farrand, The Records of the Federal
Convention of 1787 (New Haven: rev. ed. 1937), 625. However, the
statement is recorded during debate on the clause, Art. I, Sec. 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.
\845\Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 203 (1824).
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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\
\846\Id., 210-211.
\847\The writings detailing the history are voluminous. See,
e.g., F. Frankfurter, The Commerce Clause under Marshall, Taney and
White (1937); B. Gavit, The Commerce Clause of the United States
Constitution (1932) (usefully containing appendices cataloguing every
commerce clause decision of the Supreme Court to that time); Sholleys,
The Negative Implications of the Commerce Clause, 3 U. Chi. L. Rev. 556
(1936). Among the recent writings, see Sedler, The Negative Commerce
Clause as a Restriction on State Regulation and Taxation: An Analysis in
Terms of Constitutional Structure, 31 Wayne L. Rev. 885 (1985) (a
disputed conceptualization arguing the Court followed a consistent line
over the years), and articles cited, id., 887 n. 4.
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[[Page 212]]
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\
\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).
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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[.]''
\850\2 Pet. (27 U.S.) 245, 252 (1829).
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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
[[Page 213]]
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.
\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.
\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.
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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.
\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).
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[[Page 214]]
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\
\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 South-Central 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).
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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
[[Page 215]]
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\
\858\Southern Pacific Co. v. Arizona, 325 U.S. 761, 768 (1945).
\859\Id., 769. See also California v. Zook, 336 U.S. 725, 728
(1949).
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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\
\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)).
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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.
\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), 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).
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[[Page 216]]
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\
\865\Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976).
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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\
\866\Reeves, Inc. v. Stake, 447 U.S. 429 (1980).
\867\Id., 436-437.
\868\See also White v. Massachusetts Council of Construction
Employers, 460 U.S. 204 (1983) (city may favor its own residents in
construction projects paid for with city funds); South-Central Timber
Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984) (illustrating the deep
divisions in the Court respecting the scope of the exception).
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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
[[Page 217]]
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.
\869\10 Stat. 112, Sec. 6.
\870\Pennsylvania 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.
\871\Transportation Co. v. Parkersburg, 107 U.S. 691, 701
(1883).
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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
[[Page 218]]
the decision in the Bowman case fully nullified by the Webb-Kenyon
Act,\879\ which placed intoxicants entering a State from another State
under the control of the former for all purposes whatsoever.\880\
\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).
\873\Mugler v. Kansas, 123 U.S. 623 (1887).
\874\Kidd v. Pearson, 128 U.S. 1 (1888).
\875\125 U.S. 465 (1888).
\876\Leisy 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).
\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 Sec. 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).
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Less than a year after the ruling in United States v. South-
Eastern 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 Stat
|