[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[The Constitution of the United States of America (With Annotations)]
[Article I. Legislative Department]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 55]]




        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

[[Page 63]]


                                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.


        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).
      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'').

        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 

        \5\The Federalist Nos. 47-51 (J. Cooke ed. 1961), 323-353 

        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.

        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 

        \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 
        \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).


[[Page 66]]

        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).

        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.


[[Page 67]]

        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 
        \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.

        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

[[Page 68]]
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 

        \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).

        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.

        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 

        \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., 


[[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.

        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.


        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 

        \32\The Federalist, No. 39 (J. Cooke ed. 1961), 250-257 
        \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).

        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.


        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).

[[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.

        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.

        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 
        \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).

        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.


      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.

        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 

        \53\Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. 
Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).

        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).

        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).

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

        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.

[[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).

        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).

        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 

        \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).
                                                      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.

        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 
      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 
        \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).

        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 
        \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 
        \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).

        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 
        \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).

        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 

        \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 
        \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).

        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.

        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 

        \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).


[[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 

[[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).

        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 

        \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 

        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.

        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).


[[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 
        \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).

        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).

        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 

        \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.

        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.

        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).

        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 

        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).

        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).

        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).

        The issue has remained muddled since Carter Coal, the Court 
having had no opportunity to attempt to reconcile the two lines of 

        \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.

        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).

        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 

        \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).
      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).
                                                     Investigatory Power

[[Page 90]]


      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.

        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 

        \163\McGrain v. Daugherty, 273 U.S. 135, 174-175 (1927).

        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 

        \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 

        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).

        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 

        \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 
        \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.
      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).
      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).

[[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.

        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 
        \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).

        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 

        \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).

        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 

        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).

        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).

        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.

        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 

        \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.

        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 

        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.

        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 

        \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).

        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 
        \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 

        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 

        \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 

        \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 

        \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.

        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).

[[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 


                                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 
        \254\376 U.S., 7.

        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.

        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 
        \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 
        \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 

        \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).


[[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), 
        \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 
        \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 
        \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 

        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).

  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.


      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.
      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 
        \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.

        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.

        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 

        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.

        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).

  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 
        \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.


      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.

        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.
  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.

[[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]]


        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 
        \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.

        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: 
        \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.

        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-

        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 

        \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 
        \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).

        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).
        \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

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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).
      ``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

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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.
                                                    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

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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 

        \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.
                                                      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.

        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-

        \365\395 U.S. 486 (1969).
        \366\Id., 506-512.

[[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 

        \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


      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.

        That is, from the founding to 1967, congressional pay was 
determined directly by Congress in specific legislation setting specific 
rates of pay. In 1967, a law was passed that created a quadrennial 
commission with the responsibility to propose to the President salary 
levels for top officials of the Government, including Members of 
Congress.\371\ In 1975, Congress legislated to bring Members of Congress 
within a separate commission system authorizing the President to 
recommend annual increases for civil servants to maintain pay 
comparability with private-sector employees.\372\ These devices were 
attacked by dissenting Members of Congress as violating the mandate of 
clause 1 that compensation be ``ascertained by Law[.]'' However, these 
challenges were rejected.\373\ Thereafter, prior to ratification of the 
Amendment, Congress in the Ethics Reform Act of 1989,\374\ altered both 
the pay-increase and the cost-of-living-increase provisions of law, 
making quadrennial pay increases effective only after an intervening con

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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).
      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. 
        \379\Williamson v. United States, 207 U.S. 425, 446 (1908).
      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 

[[Page 128]]
of the legislative process by insuring the independence of individual 

        \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).

        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.

        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 
        \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).

        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,

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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).

        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 
        \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).

        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 

        \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.

        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 

        \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.


[[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.

        Congressional Employees.--Until the most recent decision, it was 
seemingly the basis of the decisions that while Members of Congress may 
be immune from suit arising out of their legislative activities, 
legislative employees who participate in the same activities under the 
direction of the Member or otherwise are responsible for their acts if 
those acts be wrongful.\405\ Thus, inKilbourn v. Thompson,\406\ the 
sergeant at arms of the House was held liable for false imprisonment 
because he executed the resolution ordering Kilbourn arrested and 
imprisoned.Dombrowski v. Eastland\407\ held that a subcommittee counsel 
might be liable in damages for actions as to which the chairman of the 
committee was immune from suit. And inPowell v. McCormack,\408\ the 
Court held that the presence of House of Representative employees as 
defendants in a suit for declaratory judgment gave the federal courts 
jurisdiction to review the propriety of the plaintiff's exclusion from 
office by vote of the House. Upon full consideration of the question, 
however, the Court, inGravel v. United States,\409\ accepted a series of 
contentions urged upon it not only by the individual Senator but by the 
Senate itself appearing by counsel asamicus:``that it is literally 
impossible, in view of the complexities of the modern legislative 
process, with

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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 

        \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 
        \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.

        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 

        \412\Id., 618-619.
        \413\Id., 619-620.
        \414\Id., 620-621.

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      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.

        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

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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).
      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 

        \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.

        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).


                                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 
        \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).

        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).
      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 
        \438\Matthews v. Zane, 7 Wheat. (20 U.S.) 164, 211 (1822).
        \439\Lapeyre v. United States, 17 Wall. (84 U.S.) 191, 198 
      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).

        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).

        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.

        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.

        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 

        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).
      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).

        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 

        \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 
        \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).

        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.

        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).

        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.

        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,

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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.

        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 

        \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.

        Decline of the Forbidden Subject Matter Test.--In recent years 
the Supreme Court has restored to Congress the power to tax most of the 
subject matter which had previously been withdrawn

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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.

        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).

        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).

        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 

        \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).

        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.

        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.

[[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).

        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 

        \501\485 U.S. 505 (1988).
        \502\Id., 523.
        \503\Id., 524 n. 14.

        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.

        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.

                          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 

        \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).
      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 

        \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).

        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).
      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).

        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.


      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), 
        \532\See W. Crosskey, Politics and the Constitution in the 
History of the United States (Chicago: 1953).

        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, 
        \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.

        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.

        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).

        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 

[[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).

        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 

        \549\South Dakota v. Dole, 483 U.S. 203, 207 (1987).
        \550\Id., 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 
        \551\Buckley v. Valeo, 424 U.S. 1, 90-91 (1976).

        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 

[[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.

        ``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).

        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 

        \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.

        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).

        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.

  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).


[[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).

  Clause 3. The Congress shall have Power * * * To regulate Commerce 
with foreign Nations, and among the several States, and with the Indian 

                       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 

        \578\E. Prentice & J. Egan, The Commerce Clause of the Federal 
Constitution (Chicago: 1898), 14.
      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.''

        ``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.

        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).


[[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 

        \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 
        \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 
        \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).

        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 

        \600\9 Wheat. (22 U.S.) 1, 194, 195 (1824).

        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

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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 

        \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).

        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).

        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).

        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).

        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.
      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).
      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 

        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 

        \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.

        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 
        \627\United States v. Carolene Products Co., 304 U.S. 144, 147-
148 (1938).
      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 

        \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).

        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).
      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 

        \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 
        \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.


[[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.

        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 

        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.

        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).

        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).

        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 

        \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).

        And in the Appalachian Power case, the Court, abandoning 
previous holdings laying down the doctrine that to be subject to 
Congress' power to regulate commerce a stream must be ``navigable in 
fact,'' said: ``A waterway, otherwise suitable for navigation, is not 
barred from that classification merely because artificial aids must make 
the highway suitable for use before commercial navigation may be 
undertaken,'' provided there must be a ``balance between cost and need 
at a time when the improvement would be useful. . . . Nor is it 
necessary that the improvements should be actually

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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.

        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 
        \658\Ashwander v. Tennessee Valley Authority, 297 U.S. 288 
      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 

        The litigation growing out of these and subsequent activities 
settled several propositions. First, Congress may provide highways and 
railways for interstate transportation;\661\ second, it may char

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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).

        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).

        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 

        \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).

        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 

        \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).

        The powers of the Commission today are largely defined by the 
Transportation Acts of 1920\675\ and 1940.\676\ The jurisdiction of the 
Commission covers not only the characteristics of the rail, motor, and 
water carriers in commerce among the States but also the issuance of 
securities by them and all consolidations of existing companies or 
lines.\677\ Further, the Commission was charged with regulating so as to 
foster and promote the meeting of the transportation needs of the 
country. Thus, from a regulatory exercise originally

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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 
        \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).

        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 

        \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.


[[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).

        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 


[[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.

        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 

        Other acts regulating commerce and communication originating in 
this period have evoked no basic constitutional challenge.

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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 

        \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.
      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).

        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.

        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.

        ``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.

[[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.

        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

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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 

        \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 

        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 

        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 

        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 

        \740\NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38, 41-42 

        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 
        \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 

        \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.

        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 
        \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).

        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 

        \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.

        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.
      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 

        \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 

        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.

        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 

        \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).

        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).

        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.


[[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).

        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).

        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).

        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).

        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).

        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.
      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.

        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 

        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 

[[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).

        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.

        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).

        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 

        \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.

        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).

        Thus, the Court applied the federal arson statute to the 
attempted ``torching'' of a defendant's two-unit apartment building. The 
Court merely pointed to the fact that the rental of real estate 
``unquestionably'' affects interstate commerce and that ``the local 
rental of an apartment unit is merely an element of a much broader 
commercial market in real estate.''\818\ The apparent test of whether 
aggregation of local activity can be said to affect commerce was made 
clear next in an antitrust context.\819\ Allowing the continuation of an 
antitrust suit challenging a hospital's exclusion of a surgeon from 
practice in the hospital, the Court observed that in order to establish 
the required jurisdictional nexus with commerce, the appropriate focus 
is not on the actual effects of the conspiracy but instead is on the 
possible consequences for the affected market if the conspiracy is 
successful. The required nexus in this case was sufficient because 
competitive significance is to be measured by a general evaluation of 
the impact of the restraint on other partici

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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.

        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 
        \825\Katzenbach v. McClung, 379 U.S. 294 (1964).
        \826\Daniel v. Paul, 395 U.S. 298 (1969).

        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).


[[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 
        \829\Id., 252-253; Katzenbach v. McClung, 379 U.S. 294, 299-301 

        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 

        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 
        \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.

        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).

        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.


      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.

        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 

        \842\9 Wheat. (22 U.S.) 1, 11 (1824). Justice Johnson's 
assertion, concurring, was to the same effect. Id., 226. Late in life, 
James Madison stated that the power had been granted Congress mainly as 
``a negative and preventive provision against injustice among the 
States.'' 4 Letters and Other Writings of James Madison (Philadelphia: 
1865), 14-15.
        \843\It was evident from The Federalist that the principal aim 
of the commerce clause was the protection of the national market from 
the oppressive power of individual States acting to stifle or curb 
commerce. Id., No. 7, 39-41 (Hamilton); No. 11, 65-73 (Hamilton); No. 
22, 135-137 (Hamilton); No. 42, 283-284 (Madison); No. 53, 362-364 
(Madison). See H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533 
(1949). For a comprehensive history of the adoption of the commerce 
clause, which does not indicate a definitive answer to the question 
posed, see Abel, The Commerce Clause in the Constitutional Convention 
and in Contemporary Comment, 25 Minn. L. Rev. 432 (1941). Professor Abel 
discovered only nine references in the Convention records to the 
commerce clause, all directed to the dangers of interstate rivalry and 
retaliation. Id., 470-471 & nn. 169-175.

        That, 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).

        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.


[[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 

        \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).

        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).

        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 

        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).


[[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).

        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 

        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)).

        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).


[[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).

        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).

        Congressional Authorization of Impermissible State Action.--The 
Supreme Court has never forgotten the lesson that was administered to it 
by the Act of Congress of August 31, 1852,\869\ which pronounced the 
Wheeling Bridge ``a lawful structure,'' thereby setting aside the 
Court's determination to the contrary earlier

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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 

        The Court seized upon a previously rejected dictum of Chief 
Justice Marshall\872\ and began applying it as a brake on the operation 
of such laws with respect to interstate commerce in intoxicants, which 
the Court denominated ``legitimate articles of commerce.'' While holding 
that a State was entitled to prohibit the manufacture and sale within 
its limits of intoxicants,\873\ even for an outside market, manufacture 
being no part of commerce,\874\ it contemporaneously laid down the rule, 
in Bowman v. Chicago & Northwestern Railway Co.,\875\ that, so long as 
Congress remained silent in the matter, a State lacked the power, even 
as part and parcel of a program of statewide prohibition of the traffic 
in intoxicants, to prevent the shipment into it of intoxicants from a 
sister State, and this holding was soon followed by another to the 
effect that, so long as Congress remained silent, a State had no power 
to prevent the sale in the original package of liquors introduced from 
another State.\876\ The effect of the latter decision was soon overcome 
by an act of Congress, the so-called Wilson Act, repealing its alleged 
silence,\877\ but the Bowman decision still stood, the act in question 
being interpreted by the Court not to subject liquors from sister States 
to local authority until their arrival in the hands of the person to 
whom consigned.\878\ Not until 1913 was the effect of

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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).

        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 State, an annual tax of 
three percent of premiums from business done in South Carolina, while 
imposing no similar tax on local corporations, was sustained. 
``Obviously,'' said Justice Rutledge for the Court, ``Congress' purpose 
was broadly to give support to the existing and future State systems for 
regulating and taxing the business of insurance. This was done in two 

        \881\322 U.S. 533 (1944).
        \882\59 Stat. 33, 15 U.S.C. Sec. Sec. 1011-15.
        \883\328 U.S. 408 (1946).

        ``One was by removing obstructions which might be thought to 
flow from its own power, whether dormant or exercised, except as 
otherwise expressly provided in the Act itself or in future legislation. 
The other was by declaring expressly and affirmatively that continued 
State regulation and taxation of this business is in the public interest 
and that the business and all who engage in it `shall be subject to' the 
laws of the several States in these respects. . . . The power of 
Congress over commerce exercised entirely without reference to 
coordinated action of the States is not restricted, except as the 
Constitution expressly provides, by any limitation which forbids it to 
discriminate against interstate commerce and in favor of local trade. 
Its plenary scope enables Congress not only to promote but also to 
prohibit interstate commerce, as it has done frequently and for a great 
variety of reasons. . . . This broad authority Congress may exercise 
alone, subject to those limitations, or

[[Page 219]]
in conjunction with coordinated action by the States, in which case 
limitations imposed for the preservation of their powers become 
inoperative and only those designed to forbid action altogether by any 
power or combination of powers in our governmental system remain 

        \884\Id., 429-430, 434-435. The Act restored state taxing and 
regulatory powers over the insurance business to their scope prior to 
South-Eastern Underwriters. Discriminatory state taxation otherwise 
cognizable under the commerce clause must, therefore, be challenged 
under other provisions of the Constitution. See Western, &, Southern 
Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648 (1981). An 
equal protection challenge was successful in Metropolitan Life Ins. Co. 
v. Ward, 470 U.S. 869 (1985), invalidating a discriminatory tax and 
stating that a favoring of local industries ``constitutes the very sort 
of parochial discrimination that the Equal Protection Clause was 
intended to prevent.'' Id., 878. Controversial when rendered, Ward may 
be a sport in the law. See Northeast Bancorp v. Board of Governors of 
the Federal Reserve System, 472 U.S. 159, 176-178 (1985).

        Thus, it is now well established that ``[w]hen Congress so 
chooses, state actions which it plainly authorizes are invulnerable to 
constitutional attack under the Commerce Clause.''\885\ But the Court 
requires congressional intent to permit otherwise impermissible state 
actions to ``be unmistakably clear.''\886\ The fact that federal 
statutes and regulations had restricted commerce in timber harvested 
from national forest lands in Alaska was, therefore, ``insufficient 
indicium'' that Congress intended to authorize the State to apply a 
similar policy for timber harvested from state lands. The rule requiring 
clear congressional approval for state burdens on commerce was said to 
be necessary in order to strengthen the likelihood that decisions 
favoring one section of the country over another are in fact 
``collective decisions'' made by Congress rather than unilateral choices 
imposed on unrepresented out-of-state interests by individual 
States.\887\ And Congress must be plain as well when the issue is not 
whether it has exempted a state action from

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the commerce clause but whether it has taken the less direct form of 
reduction in the level of scrutiny.\888\

        \885\Northeast Bancorp v. Board of Governors of the Federal 
Reserve System, 472 U.S. 159, 174 (1985) (interpreting a provision of 
the Bank Holding Company Act, 12 U.S.C. Sec. 1842(d), permitting 
regional interstate bank acquisitions expressly approved by the State in 
which the acquired bank is located, as authorizing state laws that allow 
only banks within the particular region to acquire an in-state bank, on 
a reciprocal basis, since what the States could do entirely they can do 
in part).
        \886\South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 
90 (1984).
        \887\Id., 92. Earlier cases had required express statutory 
sanction of state burdens on commerce but under circumstances arguably 
less suggestive of congressional approval. E.g., Sporhase v. Nebraska ex 
rel. Douglas, 458 U.S. 941, 958-960 (1982) (congressional deference to 
state water law in 37 statutes and numerous interstate compacts did not 
indicate congressional sanction for invalid state laws imposing a burden 
on commerce); New England Power Co. v. New Hampshire, 455 U.S. 331, 341 
(1982) (disclaimer in Federal Power Act of intent to deprive a State of 
``lawful authority'' over interstate transmissions held not to evince a 
congressional intent ``to alter the limits of state power otherwise 
imposed by the Commerce Clause''). But see White v. Massachusetts 
Council of Construction Employers, 460 U.S. 204 (1983) (Congress held to 
have sanctioned municipality's favoritism of city residents through 
funding statute under which construction funds were received).
        \888\Maine v. Taylor, 477 U.S. 131 (1986) (holding that Lacey 
Act's reinforcement of state bans on importation of fish and wildlife 
neither authorizes state law otherwise invalid under the Clause nor 
shifts analysis from the presumption of invalidity for discriminatory 
laws to the balancing test for state laws that burden commerce only 
      State Taxation and Regulation: The Old Law

        Although in previous editions of this volume considerable 
attention was paid to the development and circuitous paths of the law of 
the negative commerce clause, the value of this exegesis was doubtlessly 
quite limited. The Court itself has admitted that its ``some three 
hundred full-dress opinions'' as of 1959 have not resulted in 
``consistent or reconcilable'' doctrine but rather in something more 
resembling a ``quagmire.''\889\ Although many of the principles still 
applicable in constitutional law may be found in the older cases, in 
fact the Court has worked a revolution in constitutional law in this 
area, though at different times for taxation and for regulation. Thus, 
in this section we summarize the ``old'' law and then deal more fully 
with the ``modern'' law of the negative commerce clause.

        \889\Northwestern States Portland Cement Co. v. Minnesota, 358 
U.S. 450, 457-458 (1959) (in part quoting Miller Bros Co. v. Maryland, 
347 U.S. 340, 344 (1954)). Justice Frankfurter was similarly skeptical 
of definitive statements. ``To attempt to harmonize all that has been 
said in the past would neither clarify what has gone before nor guide 
the future. Suffice it to say that especially in this field opinions 
must be read in the setting of the particular cases and as the product 
pf preoccupation with their special facts.'' Freeman v. Hewit, 329 U.S. 
249, 251-252 (1946). The comments in all three cases dealt with 
taxation, but they could just as well have included regulation.

        General Considerations.--The task of drawing the line between 
state power and the commercial interest has proved a comparatively 
simple one in the field of foreign commerce, the two things being in 
great part territorially distinct.\890\ With ``commerce among the 
States'' affairs are very different. Interstate commerce is conducted in 
the interior of the country, by persons and corporations that are 
ordinarily engaged also in local business; its usual incidents are acts 
that, if unconnected with commerce among the States, would fall within 
the State's powers of police and taxation, while the things it deals in 
and the instruments by which it is carried on comprise the most ordinary 
subject matter of state power. In this field, the Court consequently has 
been unable to rely upon sweeping solutions. To the contrary, its 
judgments have often been fluctuating and tentative, even contradictory, 
and this is particu

[[Page 221]]
larly the case with respect to the infringement on interstate commerce 
by the state taxing power.\891\

        \890\Infra, pp.240-242.
        \891\In addition to the sources previously cited, see J. 
Hellerstein & W. Hellerstein, State and Local Taxation--Cases and 
Materials (5th ed. 1988), ch. 6, 241 passim. For a succinct description 
of the history, see Hellerstein, State Taxation of Interstate Business: 
Perspectives on Two Centuries of Constitutional Adjudication, 41 Tax 
Law. 37 (1987).

        Taxation.--The leading case dealing with the relation of the 
States' taxing power to interstate commerce, the case in which the Court 
first struck down a state tax as violative of the commerce clause, was 
the State Freight Tax Case.\892\ Before the Court was the validity of a 
Pennsylvania statute that required every company transporting freight 
within the State, with certain exceptions, to pay a tax at specified 
rates on each ton of freight carried by it. The Court's reasoning was 
forthright. Transportation of freight constitutes commerce.\893\ A tax 
upon freight transported from one State to another effects a regulation 
of interstate commerce.\894\ Under the Cooley doctrine, whenever the 
subject of a regulation of commerce is in its nature of national 
interest or admits of one uniform system or plan of regulation, that 
subject is within the exclusive regulating control of Congress.\895\ 
Transportation of passengers or merchandise through a State, or from one 
State to another, is of this nature.\896\ Hence, a state law imposing a 
tax upon freight, taken up within the State and transported out of it or 
taken up outside the State and transported into it, violates the 
commerce clause.\897\

        \892\Reading Railroad v. Pennsylvania, 15 Wall. (82 U.S.) 232 
        \893\Id., 275.
        \894\Id., 275-276, 279.
        \895\Id., 279-280.
        \896\Id., 280.
        \897\Id., 281-282.

        The principle thus asserted, that a State may not tax interstate 
commerce, confronted the principle that a State may tax all purely 
domestic business within its borders and all property ``within its 
jurisdiction.'' Inasmuch as most large concerns prosecute both an 
interstate and a domestic business, while the instrumentalities of 
interstate commerce and the pecuniary returns from such commerce are 
ordinarily property within the jurisdiction of some State or other, the 
task before the Court was to determine where to draw the line between 
the immunity claimed by interstate business, on the one hand, and the 
prerogatives claimed by local power on the other. In the State Tax on 
Railway Gross Receipts Case,\898\ decided the same day as the State 
Freight Tax Case, the issue was a tax upon gross receipts of all 
railroads chartered by the State, part of

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the receipts having been derived from interstate transportation of the 
same freight that had been held immune from tax in the first case. If 
the latter tax were regarded as a tax on interstate commerce, it too 
would fall. But to the Court, the tax on gross receipts of an interstate 
transportation company was not a tax on commerce. ``[I]t is not 
everything that affects commerce that amounts to a regulation of it, 
within the meaning of the Constitution.''\899\ A gross receipts tax upon 
a railroad company, which concededly affected commerce, was not a 
regulation ``directly. Very manifestly it is a tax upon the railroad 
company. . . . That its ultimate effect may be to increase the cost of 
transportation must be admitted. . . . Still it is not a tax upon 
transportation, or upon commerce. . . .''\900\

        \898\Reading Railway Co. v. Pennsylvania, 15 Wall. (82 U.S.) 284 
        \899\Id., 293.
        \900\Id., 294. This case was overruled 14 years later, when the 
Court voided substantially the same tax in Philadelphia Steamship Co. v. 
Pennsylvania, 122 U.S. 326 (1887).

        Insofar as there is a distinction between these two cases, the 
Court drew it in part on the basis of Cooley, that some subjects 
embraced within the meaning of commerce demand uniform, national 
regulation, while other similar subjects permit of diversity of 
treatment, until Congress acts, and in part on the basis of a concept of 
a ``direct'' tax on interstate commerce, which was impermissible, and an 
``indirect'' tax, which was permissible until Congress acted.\901\ 
Confusingly, the two concepts were sometimes conflated, sometimes 
treated separately. In any event, the Court itself was clear that 
interstate commerce could not be taxed at all, even if the tax was a 
nondiscriminatory levy applied alike to local commerce.\902\ ``Thus, the 
States cannot tax interstate commerce, either by laying the tax upon the 
business which constitutes such commerce or the privilege of engaging in 
it, or upon the receipts, as such, derived from it . . . ; or upon 
persons or property in transit in interstate commerce.''\903\ However, 
some taxes imposed only an ``indirect'' burden and were sustained; 
property taxes and taxes in lieu of property taxes applied to all 
businesses, including instrumentalities of interstate commerce, were 
sustained.\904\ A good rule

[[Page 223]]
of thumb in these cases is that taxation was sustained if the tax was 
imposed on some local, rather than an interstate, activity or if the tax 
was exacted before interstate movement had begun or after it had ended.

        \901\See The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 
352, 398-412 (1913) (reviewing and summarizing at length both taxation 
and regulation cases). See also Missouri ex rel. Barrett v. Kansas 
Natural Gas Co., 265 U.S. 298, 307 (1924).
        \902\Robbins v. Shelby County Taxing District, 120 U.S. 489, 497 
(1887); Leloup v. Port of Mobile, 127 U.S. 640, 648 (1888).
        \903\The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 
352, 400-401 (1913).
        \904\The Delaware Railroad Tax, 18 Wall. (85 U.S.) 206, 232 
(1873). See Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. 
Backus, 154 U.S. 439 (1894); Postal Telegraph Cable Co. v. Adams, 155 
U.S. 688 (1895). See cases cited in J. Hellerstein & W. Hellerstein, 
supra, n. 891, 215-219.

        An independent basis for invalidation was that the tax was 
discriminatory, that its impact was intentionally or unintentionally 
felt by interstate commerce and not by local, perhaps in pursuit of 
parochial interests. Many of the early cases actually involving 
discriminatory taxation were decided on the basis of the 
impermissibility of taxing interstate commerce at all, but the category 
was soon clearly delineated as a separate ground (and one of the most 
important today).\905\

        \905\E.g., Welton v. Missouri, 91 U.S. 275 (1875); Robbins v. 
Shelby County Taxing District, 120 U.S. 489 (1887); Darnell & Son Co. v. 
City of Memphis, 208 U.S. 113 (1908); Bethlehem Motors Corp. v. Flynt, 
256 U.S. 421 (1921).

        Following the Great Depression and under the leadership of 
Justice, and later Chief Justice, Stone, the Court attempted to move 
away from the principle that interstate commerce may not be taxed and 
reliance on the direct-indirect distinction. Instead, a state or local 
levy would be voided only if in the opinion of the Court it created a 
risk of multiple taxation for interstate commerce not felt by local 
commerce.\906\ It became much more important to the validity of a tax 
that it be apportioned to an interstate company's activities within the 
taxing State, so as to reduce the risk of multiple taxation.\907\ But, 
just as the Court had achieved constancy in the area of regulation, it 
reverted to the older doctrines in the taxation area and reiterated that 
interstate commerce may not be taxed at all, even by a properly 
apportioned levy, and reasserted the direct-indirect distinction.\908\ 
The stage was set, following a series of cases in which through 
formalistic reasoning the States were permitted to evade the Court's 
precedents,\909\ for the formulation of a more realistic doctrine.

        \906\Western Live Stock v. Bureau of Revenue, 303 U.S. 250 
(1938); McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33 (1940); 
International Harvester Co. v. Dept. of Treasury, 322 U.S. 340 (1944); 
International Harvester Co. v. Evatt, 329 U.S. 416 (1947).
        \907\E.g., Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434 
(1939); Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422 (1947); 
Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948).
        \908\Freeman v. Hewit, 329 U.S. 249 (1946); Spector Motor 
Service, Inc. v. O'Connor, 340 U.S. 602 (1951).
        \909\Thus, the States carefully phrased tax laws so as to impose 
on interstate companies not a license tax for doing business in the 
State, which was not permitted, Railway Express Agency v. Virginia, 347 
U.S. 359 (1954), but a franchise tax on intangible property on the 
privilege of doing business in a corporate form, which was permissible. 
Railway Express Agency v. Virginia, 358 U.S. 434 (1959); Colonial 
Pipeline Co. v. Traigle, 421 U.S. 100 (1975). Also, the Court 
increasingly found the tax to be imposed on a local activity in 
instances it would previously have seen to be an interstate activity. 
E.g., Memphis Natural Gas Co. v. Stone, 335 U.S. 80 (1948); General 
Motors Corp. v. Washington, 377 U.S. 436 (1964); Standard Pressed Steel 
Co. v. Dept. of Revenue, 419 U.S. 560 (1975).


[[Page 224]]

        Regulation.--Much more diverse were the cases dealing with 
regulation by the state and local governments. Taxation was one thing, 
the myriad approaches and purposes of regulations another. Generally 
speaking, if the state action was perceived by the Court to be a 
regulation of interstate commerce itself, it was deemed to impose a 
``direct'' burden on interstate commerce and impermissible. If the Court 
saw it as something other than a regulation of interstate commerce, it 
was considered only to ``affect'' interstate commerce or to impose only 
an ``indirect'' burden on it in the proper exercise of the police powers 
of the States.\910\ But the distinction between ``direct'' and 
``indirect'' burdens was often perceptible only to the Court.\911\

        \910\Sedler, The Negative Commerce Clause as a Restriction on 
State Regulation and Taxation: An Analysis in Terms of Constitutional 
Structure, 31 Wayne L. Rev. 885, 924-925 (1985). In addition to the 
sources already cited, see the Court's summaries in The Minnesota Rate 
Cases (Simpson v. Shepard), 230 U.S. 352, 398-412 (1913), and Southern 
Pacific Co. v. Arizona, 325 U.S. 761, 766-770 (1945). In the latter 
case, Chief Justice Stone was reconceptualizing the standards under the 
clause, but the summary represents a faithful recitation of the law.
        \911\See DiSanto v. Pennsylvania, 273 U.S. 34, 44 (1927) 
(Justice Stone dissenting). The dissent was the precursor to Chief 
Justice Stone's reformulation of the standard in 1945. DiSanto was 
overruled in California v. Thompson, 313 U.S. 109 (1941).

        A corporation's status as a foreign entity did not immunize it 
from state requirements, conditioning its admission to do a local 
business, to obtain a local license, and to furnish relevant information 
as well as to pay a reasonable fee.\912\ But no registration was 
permitted of an out-of-state corporation, the business of which in the 
host State was purely interstate in character.\913\ Neither did the 
Court permit a State to exclude from the its courts a corporation 
engaging solely in interstate commerce because of a failure to register 
and to qualify to do business in that State.\914\

        \912\Bank of Augusta v. Earle, 13 Pet. (38 U.S.) 519 (1839); 
Hanover Fire Ins. Co. v. Harding, 272 U.S. 494 (1926); Union Brokerage 
Co. v. Jensen, 322 U.S. 202 (1944).
        \913\Crutcher v. Kentucky, 141 U.S. 47 (1891); International 
Textbook Co. v. Pigg, 217 U.S. 91 (1910).
        \914\Dahnke-Walker Co. v. Bondurant, 257 U.S. 282 (1921); 
Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974). But see Eli Lilly & 
Co. v. Sav-on Drugs, 366 U.S. 276 (1961).

        Interstate transportation brought forth hundreds of cases. State 
regulation of trains operating across state lines resulted in divergent 
rulings. It was early held improper for States to prescribe charges for 
transportation of persons and freight on the basis that

[[Page 225]]
the regulation must be uniform and thus could not be left to the 
States.\915\ The Court deemed ``reasonable'' and therefore 
constitutional many state regulations requiring a fair and adequate 
service for its inhabitants by railway companies conducting interstate 
service within its borders, as long as there was no unnecessary burden 
on commerce.\916\ A marked tolerance for a class of regulations that 
arguably furthered public safety was long exhibited by the Court,\917\ 
even in instances in which the safety connection was tenuous.\918\ Of 
particular controversy were ``full-crew'' laws, represented as safety 
measures, that were attacked by the companies as ``feather-bedding'' 

        \915\Wabash, S. L. & P. Ry. Co. v. Illinois, 118 U.S. 557 
(1886). The power of the States generally to set rates had been approved 
in Chicago, B. & Q. R. Co. v. Iowa, 94 U.S. 155 (1877), and Peik v. 
Chicago & N. W. R. Co., 94 U.S. 164 (1877). After the Wabash decision, 
States retained power to set rates for passengers and freight taken up 
and put down within their borders. Wisconsin R. R. Comm. v. Chicago, B. 
& Q. R. Co., 257 U.S. 563 (1922).
        \916\Generally, the Court drew the line at regulations that 
provided for adequate service, not any and all service. Thus, one class 
of cases dealt with requirements that trains stop at designated cities 
and towns. The regulations were upheld in such cases as Gladson v. 
Minnesota, 166 U.S. 142 (1897), and Lake Shore & Mich. South. Ry. v. 
Ohio, 173 U.S. 285 (1899), and invalidated in Illinois Central R. R. v. 
Illinois, 142 (1896). See Chicago, B. & Q. Ry. v. Wisconsin R. R. Comm., 
237 U.S. 220, 226 (1915); St. Louis & S. F. Ry. v. Public Service Comm., 
254 U.S. 535, 536-537 (1921). The cases were extremely fact 
        \917\E.g., Smith v. Alabama, 124 U.S. 465 (1888) (required 
locomotive engineers to be examined and licensed by the State, until 
Congress should deem otherwise); New York, N. H. & H. Co. v. New York, 
165 U.S. 628 (1897) (fobidding heating of passenger cars by stoves); 
Chicago, R. I. & Pac. Ry. Co. v. Arkansas, 219 U.S. 453 (1911) 
(requiring three brakemen on freight trains of more than 25 cars).
        \918\E.g., Terminal Assn v. Trainmen, 318 U.S. 1 (1943) 
(requiring railroad to provide caboose cars for its employees); 
Hennington v. Georgia, 163 U.S. 299 (1896) (forbidding freight trains to 
run on Sundays). But see Seaboard Air Line Ry. v. Blackwell, 244 U.S. 
310 (1917) (voiding as too onerous on interstate transportation law 
requiring trains to come to almost a complete stop at all grade 
crossings, when there were 124 highway crossings at grade in 123 miles, 
doubling the running time).
        \919\Four cases over a lengthy period sustained the laws. 
Chicago, R. I. & P. R. Co. v. Arkansas, 219 U.S. 453 (1911); St. Louis, 
Iron Mt. & S. R. Co. v. Arkansas, 240 U.S. 518 (1916); Missouri Pacific 
Co. v. Norwood, 283 U.S. 249 (1931); Brotherhood of Locomotive Firemen & 
Enginemen v. Chicago, R. I. & P. R. Co., 382 U.S. 423 (1966). In the 
latter case, the Court noted the extensive and conflicting record with 
regard to safety, but it then ruled that with the issue in so much doubt 
it was peculiarly a legislative choice.

        Similarly, motor vehicle regulations have met mixed fates. 
Basically, it has always been recognized that States, in the interest of 
public safety and conservation of public highways, may enact and enforce 
comprehensive licensing and regulation of motor vehicles using its 
facilities.\920\ Indeed, States were permitted to regulate many of the 
local activities of interstate firms and thus the

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interstate operations, in pursuit of these interests.\921\ Here, too, 
safety concerns became overriding objects of deference, even in doubtful 
cases.\922\ In regard to navigation, which had given rise to Gibbons v. 
Ogden and Cooley, the Court generally upheld much state regulation on 
the basis that the activities were local and did not demand uniform 

        \920\Hendrick v. Maryland, 235 U.S. 610 (1915); Kane v. New 
Jersey, 242 U.S. 160 (1916).
        \921\E.g., Bradley v. Public Utility Comm., 289 U.S. 92 (1933) 
(State could deny an interstate firm a necessary certificate of 
convenience to operate as a common carrier on the basis that the route 
was overcrowded); Welch Co. v. New Hampshire, 306 U.S. 79 (1939) 
(maximum hours for drivers of motor vehicles); Eichholz v. Public 
Service Comm., 306 U.S. 268 (1939) (reasonable regulations of traffic). 
But compare Michigan Comm. v. Duke, 266 U.S. 570 (1925) (State may not 
impose common-carrier responsibilities on business operating between 
States that did not assume them); Buck v. Kuykendall, 267 U.S. 307 
(1925) (denial of certificate of convenience under circumstances was a 
ban on competition).
        \922\E.g., Mauer v. Hamilton, 309 U.S. 598 (1940) (ban on 
operation of any motor vehicle carrying any other vehicle above the head 
of the operator). By far, the example of the greatest deference is South 
Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177 (1938), in which 
the Court upheld, in a surprising Stone opinion, truck weight and width 
restrictions prescribed by practically no other State (in terms of the 
width, no other).
        \923\E.g., Transportation Co. v. City of Chicago, 99 U.S. 635 
(1879); Williamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888). See 
Kelly v. Washington, 302 U.S. 1 (1937) (upholding state inspection and 
regulation of tugs operating in navigable waters, in absence of federal 

        As a general rule, during this time, although the Court did not 
permit States to regulate a purely interstate activity or prescribe 
prices for purely interstate transactions,\924\ it did sustain a great 
deal of price and other regulation imposed prior to or subsequent to the 
travel in interstate commerce of goods produced for such commerce or 
received from such commerce. For example, decisions late in the period 
upheld state price-fixing schemes applied to goods intended for 
interstate commerce.\925\

        \924\E.g., Western Union Tel Co. v. Foster, 247 U.S. 105 (1918); 
Lemke v. Framers Grain Co., 258 U.S. 50 (1922); State Corp. Comm. v. 
Wichita Gas Co., 290 U.S. 561 (1934).
        \925\Milk Control Board v. Eisenberg Co., 306 U.S. 346 (1939) 
(milk); Parker v. Brown, 317 U.S. 341 (1943) (raisins).

        However, the States always had an obligation to act 
nondiscriminatorily. Just as in the taxing area, regulation that was 
parochially oriented, to protect local producers or industries, for 
instance, was not evaluated under ordinary standards but subjected to 
practically per se invalidation. The mirror image of Welton v. 
Missouri,\926\ the tax case, was Minnesota v. Barber,\927\ in which the 
Court invalidated a facially neutral law that in its practical effect 
discriminated against interstate commerce and in favor of local 
commerce. The law required fresh meat sold in the State to have been 
inspected by its own inspectors with 24 hours of slaughter.

[[Page 227]]
Thus, meat slaughtered in other States was excluded from the Minnesota 
market. The principle of the case has a long pedigree of 
application.\928\ State protectionist regulation on behalf of local milk 
producers has occasioned judicial censure. Thus, in Baldwin v. G. A. F. 
Seelig, Inc.,\929\ the Court had before it a complex state price-fixing 
scheme for milk, in which the State, in order to keep the price of milk 
artificially high within the State, required milk dealers buying out-of-
state to pay producers, wherever they were, what the dealers had to pay 
within the State, and, thus, in-state producers were protected. And in 
H. P. Hood & Sons v. Du Mond,\930\ the Court struck down a state refusal 
to grant an out-of-state milk distributor a license to operate a milk 
receiving station within the State on the basis that the additional 
diversion of local milk to the other State would impair the supply for 
the in-state market. A State may not bar an interstate market to protect 
local interests.\931\

        \926\91 U.S. 275 (1875).
        \927\136 U.S. 313 (1890).
        \928\E.g., Brimmer v. Rebman, 138 U.S. 78 (1891) (law requiring 
postslaughter inspection in each county of meat transported over 100 
miles from the place of slaughter); Dean Milk Co. v. City of Madison, 
340 U.S. 349 (1951) (city ordinance preventing selling of milk as 
pasteurized unless it had been processed and bottled at an approved 
plant within a radius of five miles from the central square of Madison). 
As the latter case demonstrates, it is constitutionally irrelevant that 
other Wisconsin producers were also disadvantaged by the law. For a 
modern application of the principle of these cases, see Fort Gratiot 
Sanitary Landfill v. Michigan Natural Resources Dept., 112 S.Ct. 2019 
(1992) (forbidding landfills from accepting out-of-county wastes).
        \929\294 U.S. 511 (1935). See also Polar Ice Cream & Creamery 
Co. v. Andrews, 375 U.S. 361 (1964). With regard to products originating 
within the State, the Court had no difficulty with price fixing. Nebbia 
v. New York, 291 U.S. 502 (1934).
        \930\336 U.S. 525 (1949).
        \931\And the Court does not permit a State to combat 
discrimination against its own products by admitting only products 
(here, again, milk) from States that have reciprocity agreements with it 
to protect its own dealers. Great Atlantic & Pacific Tea Co. v. 
Cottrell, 424 U.S. 366 (1976).
      State Taxation and Regulation: The Modern Law

        General Considerations.--Transition from the old law to the 
modern standard occurred relatively smoothly in the field of 
regulation,\932\ but in the area of taxation the passage was choppy and 
often witnessed retreats and advances.\933\ In any event, both taxation 
and regulation now are evaluated under a judicial balancing

[[Page 228]]
formula comparing the burden on interstate commerce with the importance 
of the state interest, save for discriminatory state action that cannot 
be justified at all.

        \932\Formulation of a balancing test was achieved in Southern 
Pacific Co. v. Arizona, 325 U.S. 761 (1945),and was thereafter 
maintained more or less consistently. The Court's current phrasing of 
the test was in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).
        \933\Indeed, scholars dispute just when the modern standard was 
firmly adopted. The conventional view is that it was articulated in 
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), but there 
also seems little doubt that the foundation of the present law was laid 
in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 

        Taxation.--During the 1940s and 1950s, there was engaged within 
the Court a contest between the view that interstate commerce could not 
be taxed at all, at least ``directly,'' and the view that the negative 
commerce clause protected against the risk of double taxation.\934\ In 
Northwestern States Portland Cement Co. v. Minnesota,\935\ the Court 
reasserted the principle expressed earlier in Western Live Stock, that 
the Framers did not intend to immunize interstate commerce from its just 
share of the state tax burden even though it increased the cost of doing 
business.\936\ Northwestern States held that a State could 
constitutionally impose a nondiscriminatory, fairly apportioned net 
income tax on an out-of-state corporation engaged exclusively in 
interstate commerce in the taxing State. ``For the first time outside 
the context of property taxation, the Court explicitly recognized that 
an exclusively interstate business could be subjected to the states' 
taxing powers.''\937\ Thus, in Northwestern States, foreign 
corporations, which maintained a sales office and employed sales staff 
in the taxing State for solicitation of orders for their merchandise 
that, upon acceptance of the orders at their home office in another 
jurisdiction, were shipped to customers in the taxing State, were held 
liable to pay the latter's income tax on that portion of the net income 
of their interstate business as was attributable to such solicitation.

        \934\Compare Freeman v. Hewit, 329 U.S. 249, 252-256 (1946), 
with Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 258, 260 
        \935\358 U.S. 450 (1959).
        \936\Id., 461-462. See Western Live Stock v. Bureau of Revenue, 
303 U.S. 250, 254 (1938). For recent reiterations of the principle, see 
Quill Corp. v. North Dakota ex rel. Heitkamp, 112 S.Ct. 1904, 1912 n. 5 
(1992) (citing cases).
        \937\Hellerstein, State Taxation of Interstate Business: 
Perspectives on Two Centuries of Constitutional Adjudication, 41 Tax 
Law. 37, 54 (1987).

        Yet, the following years saw inconsistent rulings that turned 
almost completely upon the use of or failure to use ``magic words'' by 
legislative drafters. That is, it was constitutional for the States to 
tax a corporation's net income, properly apportioned to the taxing 
State, as in Northwestern States, but no State could levy a tax on a 
foreign corporation for the privilege of doing business in the State, 
both taxes alike in all respects.\938\ In Complete Auto Transit,

[[Page 229]]
Inc. v. Brady,\939\ the Court overruled the cases embodying the 
distinction and articulated a standard that has governed the cases 
since. The tax in Brady was imposed on the privilege of doing business 
as applied to a corporation engaged in interstate transportation 
services in the taxing State; it was measured by the corporation's gross 
receipts from the service. The appropriate concern, the Court wrote, was 
to pay attention to ``economic realities'' and to ``address the problems 
with which the commerce clause is concerned.''\940\ The standard, a set 
of four factors that was distilled from precedent but newly applied, was 
firmly set out. A tax on interstate commerce will be sustained ``when 
the tax is applied to an activity with a substantial nexus with the 
taxing State, is fairly apportioned, does not discriminate against 
interstate commerce, and is fairly related to the services provided by 
the State.''\941\ All subsequent cases have been decided in this 

        \938\Spector Motor Service, Inc. v. O'Connor, 340 U.S. 602 
(1951). The attenuated nature of the purported distinction was evidenced 
in Colonial Pipeline Co. v. Traigle, 421 U.S. 100 (1975), in which the 
Court sustained a nondiscriminatory, fairly apportioned franchise tax 
that was measured by the taxpayer's capital stock, imposed on a pipeline 
company doing an exclusively interstate business in the taxing State, on 
the basis that it was a tax imposed on the privilege of conducting 
business in the corporate form.
        \939\430 U.S. 274 (1977).
        \940\Id., 279, 288. ``In reviewing Commerce Clause challenges to 
state taxes, our goal has instead been to `establish a consistent and 
rational method of inquiry' focusing on `the practical effect of a 
challenged tax.''' Commonwealth Edison Co. v. Montana, 453 U.S. 609, 615 
(1981) (quoting Mobil Oil Corp. v. Comr. of Taxes, 445 U.S. 425, 443 
        \941\Id., 279. The rationale of these four parts of the test is 
set out in Quill Corp. v. North Dakota ex rel. Heitkamp, 112 S.Ct. 1904, 
1913 (1992).

        Nexus.--Nexus is a requirement that flows from both the commerce 
clause and the due process clause of the Fourteenth Amendment.\942\ What 
is required is ``some definite link, some minimum connection, between a 
state and the person, property or transaction it seeks to tax.''\943\ In 
its commerce-clause setting, the nexus requirement serves to effectuate 
the ``structural concerns about the effects of state regulation on the 
national economy.''\944\ That is, ``the `substantial-nexus' requirement 
. . . limit[s] the reach of State taxing authority so as to ensure that 
State taxation does not unduly burden interstate commerce.''\945\

        \942\It had been thought that the tests of nexus under the 
commerce clause and the due process clause were identical, but, 
controversially, in Quill Corp. v. North Dakota ex rel. Heitkamp, 112 
S.Ct. 1904, 1909-1911 (1992), but compare id., 1916 (Justice White 
concurring in part and dissenting in part), the Court, stating that the 
two ``are closely related,''(citing National Bellas Hess, Inc. v. Dept. 
of Revenue of Illinois, 386 U.S. 753, 756 (1967)), held that the two 
constitutionally requirements ``differ fundamentally'' and it found a 
state tax met the due process test while violating the commerce clause.
        \943\National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 
386 U.S. 753, 756 (1967). The phraseology is quoted from a due process 
case, Miller Bros. Co. v. Maryland, 347 U.S. 340, 344-345 (1954), but as 
a statement it probably survives the bifurcation of the tests in Quill.
        \944\Quill Corp. v. North Dakota ex rel. Heitkamp, 112 S.Ct. 
1904, 1913 (1992).

        Often surfacing in cases having to do with the imposition of an 
obligation by a State on an out-of-state vendor to collect use taxes

[[Page 230]]
on goods sold to purchasers in the taxing State, the test is a 
``physical presence'' standard. The Court has sustained the imposition 
on mail order sellers with retail outlets, solicitors, or property 
within the taxing State,\946\ but it has denied the power to a State 
when the only connection is that the company communicates with customers 
in the State by mail or common carrier as part of a general interstate 
business.\947\ The validity of general business taxes on interstate 
enterprises may also be determined by the nexus standard. However, 
again, only a minimal contact is necessary.\948\ Thus, maintenance of 
one full-time employee within the State (plus occasional visits by non-
resident engineers) to make possible the realization and continuance of 
contractual relations seemed to the Court to make almost frivolous a 
claim of lack of sufficient nexus.\949\ The application of a state 
business-and-occupation tax on the gross receipts from a large wholesale 
volume of pipe and drainage products in the State was sustained, even 
though the company maintained no office, owned no property, and had no 
employees in the State, its marketing activities being carried out by an 
in-state independent contractor.\950\ Also, the Court upheld a State's 
application of a use tax to aviation fuel stored temporarily in the 
State prior to loading on aircraft for consumption in interstate 

        \946\Scripto v. Carson, 362 U.S. 207 (1960); National Geographic 
Society v. California Bd. of Equalization, 430 U.S. 551 (1977). The 
agents in the State in Scripto were independent contractors, rather than 
employees, but this distinction was irrelevant. See also Tyler Pipe 
Industries v. Dept. of Revenue, 483 U.S. 232, 249-250 (1987) 
(reaffirming Scripto on this point). See also D. H. Holmes Co. v. 
McNamara, 486 U.S. 24 (1988) (imposition of use tax on catalogs, printed 
outside State at direction of an in-state corporation and shipped to 
prospective customers within the State, upheld).
        \947\National Bellas Hess, Inc. v. Department of Revenue of 
Illinois, 386 U.S. 753 (1967), reaffirmed with respect to the commerce 
clause in Quill Corp. v. North Dakota ex rel. Heitkamp, 112 S.Ct. 1904 
        \948\Some in-state contact is necessary in many instances by 
statutory compulsion. Reacting to Northwestern States, Congress enacted 
P.L. 86-272, 15 U.S.C. Sec. 381, providing that mere solicitation by a 
company acting outside the State did not support imposition of a state 
income tax on a company's proceeds. See Heublein, Inc. v. South Carolina 
Tax Comm., 409 U.S. 275 (1972); Wisconsin Dept. of Revenue v. William 
Wrigley, Jr., Co., 112 S.Ct. 2447 (1992).
        \949\Standard Pressed Steel Co. v. Dept. of Revenue, 419 U.S. 
560 (1975). See also General Motors Corp. v. Washington, 377 U.S. 436 
        \950\Tyler Pipe Industries, Inc. v. Dept. of Revenue, 483 U.S. 
232, 249-251 (1987). The Court noted its agreement with the state court 
holding that ```the crucial factor governing nexus is whether the 
activities performed in this state on behalf of the taxpayer are 
significantly associated with the taxpayer's ability to establish and 
maintain a market in this state for the sales.''' Id., 250.
        \951\United Air lines v. Mahin, 410 U.S. 623 (1973).

        Given the complexity of modern corporations and their frequent 
diversification and control of subsidiaries, state treatment of 
businesses operating within and without their borders requires an 
appropriate definition of the scope of business operations. Thus,

[[Page 231]]
States may impose a tax in accordance with a ``unitary business'' 
apportionment formula on concerns carrying on part of their business 
within the taxing State based upon the company's entire proceeds. But 
there must be a nexus, or minimal connection, between the interstate 
activities and the taxing State and a rational relationship between the 
income attributed to the State and the intrastate values of the 

        \952\Container Corp. of America v. Franchise Tax Board, 463 U.S. 
159, 165-169 (1983); ASARCO Inc. v. Idaho State Tax Comm., 458 U.S. 307, 
316-17 (1982).

        Apportionment.--This requirement is of long standing,\953\ but 
its importance has broadened as the scope of the States' taxing powers 
has enlarged. It is concerned with what formulas the States must use to 
claim a share of a multistate business' tax base for the taxing State, 
when the business carries on a single integrated enterprise both within 
and without the State. A State may not exact from interstate commerce 
more than the State's fair share. Avoidance of multiple taxation, or the 
risk of multiple taxation, is the test of an apportionment formula. 
Generally speaking, this factor is both a commerce clause and a due 
process requisite, and it necessitates a rational relationship between 
the income attributed to the State and the intrastate values of the 
enterprise.\954\ The Court has declined to impose any particular formula 
on the States, reasoning that to do so would be to require the Court in 
engage in ``extensive judicial lawmaking,'' for which it was ill-suited 
and for which Congress had ample power and ability to legislate.\955\

        \953\E.g., Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 
18, 26 (1891); Maine v. Grand Trunk Ry., 142 U.S. 217, 278 (1891).
        \954\The recent cases are, Moorman Mfg. Co. v. Bair, 437 U.S. 
267 (1978); Mobil Oil Corp. v. Comr. of Taxes, 445 U.S. 425 (1980); 
Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207 (1980); ASARCO 
v. Idaho State Tax Comm., 458 U.S. 307 (1982); F. W. Woolworth Co. v. 
New Mexico TaxationRevenue Dept., 458 U.S. 354 (1982); Container Corp. 
of America v. Franchise Tax Board, 463 U.S. 159 (1983); Tyler Pipe 
Industries v. Dept. of Revenue, 483 U.S. 232, 251 (1987); Allied-Signal, 
Inc. v. Director, Div. of Taxation, 112 S.Ct. 2251 (1992). Cf. American 
Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 (1987).
        \955\Moorman Mfg. Co. v. Bair, 437 U.S. 267, 278-280 (1978).

        Rather, ``we determine whether a tax is fairly apportioned by 
examining whether it is internally and externally consistent.''\956\ 
``To be internally consistent, a tax must be structured so that if every 
State were to impose an identical tax, no multiple taxation would 
result. Thus, the internal consistency test focuses on the text of the 
challenged statute and hypothesizes a situation where other States have 
passed an identical statute. . . .

        \956\Goldberg v. Sweet, 488 U.S. 252, 261 (1989).

        ``The external consistency test asks whether the State has taxed 
only that portion of the revenues from the interstate activity which 
reasonably reflects the in-state component of the activity

[[Page 232]]
being taxed. We thus examine the in-state business activity which 
triggers the taxable event and the practical or economic effect of the 
tax on that interstate activity.''\957\ In the latter case, the Court 
upheld as properly apportioned a state tax on the gross charge of any 
telephone call originated or terminated in the State and charged to an 
in-state service address, regardless of where the telephone call was 
billed or paid.\958\A complex state tax imposed on trucks displays the 
operation of the test. Thus, a state registration tax met the internal 
consistency test because every State honored every other States', and a 
motor fuel tax similarly was sustained because it was apportioned to 
mileage traveled in the State, whereas lump-sum annual taxes, an axle 
tax and an identification marker fee, being unapportioned flat taxes 
imposed for the use of the State's roads, were voided, under the 
internal consistency test, because if every State imposed them the 
burden on interstate commerce would be great.\959\

        \957\Id., 261, 262 (internal citations omitted).
        \958\Id. The tax law provided a credit for any taxpayer who was 
taxed by another State on the same call. Actual multiple taxation could 
thus be avoided, the risks of other multiple taxation was small, and it 
was impracticable to keep track of the taxable transactions.
        \959\American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 

        Discrimination.--The ``fundamental principle'' governing this 
factor is simple. ```No State may, consistent with the Commerce Clause, 
impose a tax which discriminates against interstate commerce . . . by 
providing a direct commercial advantage to local business.'''\960\ That 
is, a tax which by its terms or operation imposes greater burdens on 
out-of-state goods or activities than on competing in-state goods or 
activities will be struck down as discriminatory under the commerce 
clause.\961\ In Armco. Inc. v. Hardesty,\962\ the Court voided as 
discriminatory the imposition on an out-of-state wholesaler of a state 
tax that was levied on manufacturing and wholesaling but that relieved 
manufacturers subject to the manufacturing tax of liability for paying 
the wholesaling tax. Even though the former tax was higher than the 
latter, the Court found the imposition discriminated against the 
interstate wholesaler.\963\ A state excise tax on wholesale liquor 
sales, which ex

[[Page 233]]
empted sales of specified local products, was held to violate the 
commerce clause.\964\ A state statute that granted a tax credit for 
ethanol fuel if the ethanol was produced in the State, or if produced in 
another State that granted a similar credit to the State's ethanol fuel, 
was found discriminatory in violation of the clause.\965\

        \960\Boston Stock Exchange v. State Tax Comm., 429 U.S. 318, 329 
(1977) (quoting Northwestern States Portland Cement Co. v. Minnesota, 
358 U.S. 450, 457 (1959)). The principle, as we have observed above, is 
a long-standing one under the commerce clause. E.g., Welton v. Missouri, 
91 U.S. 275 (1876).
        \961\Maryland v. Louisiana, 451 U.S. 725, 753-760 (1981). But 
see Commonwealth Edison Co. v. Montana, 453 U.S. 609, 617-619 (1981).
        \962\467 U.S. 638 (1984).
        \963\The Court applied the ``internal consistency'' test here, 
too, in order to determine the existence of discrimination. Id., 644-
645. Thus, the wholesaler did not have to demonstrate it had paid a like 
tax to another State, only that if other States imposed like taxes it 
would be subject to discriminatory taxation. See also Tyler Pipe 
Industries v. Washington State Dept. of Revenue, 483 U.S. 232 (1987); 
American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266 (1987); Amerada 
Hess Corp. v. Director, New Jersey Taxation Div., 490 U.S. 66 (1989); 
Kraft General Foods v. Iowa Dept. of Revenue, 112 S.Ct. 2365 (1992)
        \964\Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984).
        \965\New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988).

        Benefit Relationship.--Although, in all the modern cases, the 
Court has stated that a necessary factor to sustain state taxes having 
an interstate impact is that the levy be fairly related to benefits 
provided by the taxing State, it has declined to be drawn into any 
consideration of the amount of the tax or the value of the benefits 
bestowed. The test rather is whether, as a matter of the first factor, 
the business has the requisite nexus with the State; if it does, the tax 
meets the fourth factor simply because the business has enjoyed the 
opportunities and protections which the State has afforded it.\966\

        \966\Commonwealth Edison Co. v. Montana, 453 U.S. 609, 620-629 
(1981). Two state taxes imposing flat rates on truckers, because they 
did not vary directly with miles traveled or with some other proxy for 
value obtained from the State, were found to violate this standard in 
American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266, 291 (1987), 
but this oblique holding was tagged onto an elaborate opinion holding 
the taxes invalid under two other Brady tests, and, thus, the 
precedential value is questionable.

        Regulation.--Adoption of the modern standard of commerce-clause 
review of state regulation of or having an impact on interstate commerce 
was achieved in Southern Pacific Co. v. Arizona,\967\ although it was 
presaged in a series of opinions, mostly dissents, by Chief Justice 
Stone.\968\ The Southern Pacific case tested the validity of a state 
train-length law, justified as a safety measure. Revising a hundred 
years of doctrine, the Chief Justice wrote that whether a state or local 
regulation was valid depended upon a ``reconciliation of the conflicting 
claims of state and national power is to be attained only by some 
appraisal and accommodation of the competing demands of the state and 
national interests involved.''\969\ Save in those few cases in which 
Congress has acted, ``this Court, and not the state legislature, is 
under the commerce

[[Page 234]]
clause the final arbiter of the competing demands of state and national 

        \967\325 U.S. 761 (1945).
        \968\E.g., DiSanto v. Pennsylvania, 273 U.S. 34, 43 (1927) 
(dissenting); California v. Thompson, 313 U.S. 109 (1941); Duckworth v. 
Arkansas, 314 U.S. 390 (1941); Parker v. Brown, 317 U.S. 341, 362-368 
(1943) (alternative holding).
        \969\Southern Pacific Co. v. Arizona, 325 U.S. 761, 768-769 
        \970\Id., 769.

        That the test to be applied was a balancing one, the Chief 
Justice made clear at length, stating that in order to determine whether 
the challenged regulation was permissible, ``matters for ultimate 
determination are the nature and extent of the burden which the state 
regulation of interstate trains, adopted as a safety measure, imposes on 
interstate commerce, and whether the relative weights of the state and 
national interests involved are such as to make inapplicable the rule, 
generally observed, that the free flow of interstate commerce and its 
freedom from local restraints in matters requiring uniformity of 
regulation are interests safeguarded by the commerce clause from state 

        \971\Id., 770-771.

        The test today continues to be the Stone articulation, although 
the more frequently quoted encapsulation of it is from Pike v. Bruce 
Church, Inc.\972\ ``Where the statute regulates even-handedly to 
effectuate a legitimate local public interest, and its effects on 
interstate commerce are only incidental, it will be upheld unless the 
burden imposed on such commerce is clearly excessive in relation to the 
putative local benefits. . . . If a legitimate local purpose is found, 
then the question becomes one of degree. And the extent of the burden 
that will be tolerated will of course depend on the nature of the local 
interest involved, and on whether it could be promoted as well with a 
lesser impact on interstate activities.''

        \972\397 U.S. 137, 142 (1970).

        Obviously, the test requires ``even-handedness.'' Discrimination 
in regulation is another matter altogether. When on its face or in its 
effect a regulation betrays ``economic protectionism,'' an intent to 
benefit in-state economic interests at the expense of out-of-state 
interests, no balancing is required. ``When a state statute clearly 
discriminates against interstate commerce, it will be struck down . . . 
unless the discrimination is demonstrably justified by a valid factor 
unrelated to economic protectionism, . . . . Indeed, when the state 
statute amounts to simple economic protectionism, a `virtually per se 
rule of invalidity' has applied.''\973\ Thus, an Oklahoma law that 
required coal-fired electric utilities in the State, producing

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power for sale in the State, to burn a mixture of coal containing at 
least 10% Oklahoma-mined coal was invalidated at the behest of a State 
that had previously provided virtually 100% of the coal used by the 
Oklahoma utilities.\974\ Similarly, the Court invalidated a state law 
that permitted interdiction of export of hydroelectric power from the 
State to neighboring States, when in the opinion of regulatory 
authorities the energy was required for use in the State; a State may 
not prefer its own citizens over out-of-state residents in access to 
resources within the State.\975\

        \973\Wyoming v. Oklahoma, 112 S.Ct. 789, 800 (1992) (quoting 
City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)). See also 
Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 
573, 579 (1986). In Maine v. Taylor, 477 U.S. 131 (1986), the Court did 
uphold a protectionist law, finding a valid justification aside from 
economic protectionism. The State barred the importation of out-of-state 
baitfish, and the Court credited lower-court findings that legitimate 
ecological concerns existed about the possible presence of parasites and 
nonnative species in baitfish shipments.
        \974\Wyoming v. Oklahoma, 112 S.Ct. 789 (1992). See also 
Maryland v. Louisiana, 451 U.S. 725 (1981) (a tax case, invalidating a 
state first-use tax, which, because of exceptions and credits, imposed a 
tax only on natural gas moving out-of-state, because of impermissible 
        \975\New England Power Co. v. New Hampshire, 455 U.S. 331 
(1982). See also Hughes v. Oklahoma, 441 U.S. 322 (1979) (voiding a ban 
on transporting minnows caught in the State for sale outside the State); 
Sporhase v. Nebraska, 458 U.S. 941 (1982) (invalidating a ban on the 
withdrawal of ground water from any well in the State intended for use 
in another State). These cases largely eviscerated a line of older cases 
recognizing a strong state interest in protection of animals and 
resources. See Geer v. Connecticut, 161 U.S. 519 (1896). New England 
Power had rather old antecedents. E.g., West v. Kansas Gas Co., 221 U.S. 
229 (1911); Pennsylvania v. West Virginia, 262 U.S. 553 (1923).

        States may certainly promote local economic interests and favor 
local consumers, but they may not do so by adversely regulating out-of-
state producers or consumers. In Hunt v. Washington State Apple 
Advertising Comm.,\976\ the Court confronted a state requirement that 
closed containers of apples offered for sale or shipped into North 
Carolina carry no grade other than the applicable U. S. grade. 
Washington State mandated that all apples produced in and shipped in 
interstate commerce pass a much more rigorous inspection than that 
mandated by the United States. The inability to display the recognized 
state grade in North Carolina impeded marketing of Washington apples. 
The Court obviously suspected the impact was intended, but, rather than 
strike the state requirement down as purposeful, it held that the 
regulation had the practical effect of discriminating, and, inasmuch as 
no defense based on possible consumer protection could be presented, the 
state law was invalidated.\977\ State actions to promote local products 

[[Page 236]]
producers, of everything from milk\978\ to alcohol,\979\ may not be 
achieved through protectionism.

        \976\432 U.S. 333 (1977). Other cases in which the State was 
attempting to promote and enhance local products and businesses include 
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (State required producer 
of high-quality cantaloupes to pack them in the State, rather than in an 
adjacent State at considerably less expense, in order that the produce 
be identified with the producing State); Foster-Fountain Packing Co. v. 
Haydel, 278 U.S. 1 (1928) (State banned export of shrimp from State 
until hulls and heads were removed and processed, in order to favor 
canning and manufacture within the State).
        \977\That discriminatory effects will result in invalidation, as 
well as purposeful discrimination, is also drawn from Dean Milk Co. v. 
City of Madison, 340 U.S. 349 (1951)
        \978\E.g., H. P. Hood & Sons v. Du Mond, 336 U.S. 525 (1949). 
See also Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366 
(1976) (state effort to combat discrimination by other States against 
its milk through reciprocity provisions).
        \979\Healy v. Beer Institute, Inc., 491 U.S. 324 (1989); Brown-
Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 
(1986). And see Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) (a 
tax case).

        Even garbage transportation and disposition is covered by the 
negative commerce clause. A state law that banned the importation of 
most solid or liquid wastes that originated outside the State was struck 
down, because the State could not justify it as a health or safety 
measure, in the form of a quarantine, inasmuch as it did not limit in-
state disposal at its landfills; the State was simply attempting to 
conserve landfill space and lower costs to its residents by keeping out 
trash from other States.\980\ States may not interdict the movement of 
persons into the State, whatever the motive to protect themselves from 
economic or similar difficulties.\981\

        \980\City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), 
reaffirmed and applied in Chemical Waste Management, Inc. v. Hunt, 112 
S.Ct. 2009 (1992), and Fort Gratiot Sanitary Landfill v. Michigan 
Natural Resources Dept., 112 S.Ct. 2019 (1992).
        \981\Edwards v. California, 314 U.S. 160 (1941) (California 
effort to bar ``Okies,'' persons fleeing the Great Plains dust bowl in 
the Depression). Cf. the notable case of Crandall v. Nevada, 6 Wall. (73 
U.S.) 35 (1867) (without tying it to any particular provision of 
Constitution, Court finds a protected right of interstate movement). The 
right of travel is now an aspect of equal protection jurisprudence.

        Drawing the line between discriminatory regulations that are 
almost per se invalid and regulations that necessitate balancing is not 
an easy task. Not every claim of protectionism is sustained. Thus, in 
Minnesota v. Clover Leaf Creamery Co.,\982\ there was attacked a state 
law banning the retail sale of milk products in plastic, nonreturnable 
containers but permitting sales in other nonreturnable, nonrefillable 
containers, such as paperboard cartons. The Court found no 
discrimination against interstate commerce, because both in-state and 
out-of-state interests could not use plastic containers, and it refused 
to credit a lower, state-court finding that the measure was intended to 
benefit the local pulpwood industry. In Exxon Corp. v. Governor of 
Maryland,\983\ the Court upheld a statute that prohibited producers or 
refiners of petroleum products from operating retail service stations in 
Maryland. No discrimination was found, first, because there were no 
local producers or refiners within Maryland and therefore since the 
State's entire gasoline supply flowed in interstate commerce there was 
no favoritism, and, second, although the bar on operating fell entirely 

[[Page 237]]
out-of-state concerns, there were out-of-state concerns that did not 
produce or refine gasoline and they were able to continue operating in 
the State, so that there was some distinction between all in-state 
operators and some out-of-state operators as against some other out-of-
state operators.

        \982\449 U.S. 456, 470-474 (1981).
        \983\437 U.S. 117 (1978).

        Still a model example of balancing is Chief Justice Stone's 
opinion in Southern Pacific Co. v. Arizona.\984\ At issue was the 
validity of Arizona's law barring the operation within the State of 
trains of more than 14 passenger cars, no other State had a figure this 
low, or 70 freight cars, only one other State had a cap this low. First, 
the Court observed that the law substantially burdened interstate 
commerce. Enforcement of the law in Arizona, while train lengths went 
unregulated or were regulated by varying standards in other States, 
meant that interstate trains of a length lawful in other States had to 
be broken up before entering the State; inasmuch as it was not 
practicable to break up trains at the border, that act had to be 
accomplished at yards quite removed, with the result that the Arizona 
limitation controlled train lengths as far east as El Paso, Texas, and 
as far west as Los Angeles. Nearly 95% of the rail traffic in Arizona 
was interstate. The other alternative was to operate in other States 
with the lowest cap, Arizona's, with the result that that State's law 
controlled the railroads' operations over a wide area.\985\ If other 
States began regulating at different lengths, as they would be permitted 
to do, the burden on the railroads would burgeon. Moreover, the 
additional number of trains needed to comply with the cap just within 
Arizona was costly, and delays were occasioned by the need to break up 
and remake lengthy trains.\986\

        \984\325 U.S. 761 (1945). Interestingly, Justice Stone had 
written the opinion for the Court in South Carolina State Highway Dept. 
v. Barnwell Bros., 303 U.S. 177 (1938), in which, in a similar case 
involving regulation of interstate transportation and proffered safety 
reasons, he had eschewed balancing and deferred overwhelmingly to the 
state legislature. Barnwell Bros. involved a state law that prohibited 
use on state highways of trucks that were over 90 inches wide or that 
had a gross weight over 20,000 pounds, with from 85% to 90% of the 
Nation's trucks exceeding these limits. This deference and refusal to 
evaluate evidence resurfaced in a case involving an attack on railroad 
``full-crew'' laws. Brotherhood of Locomotive Firemen & Enginemen v. 
Chicago, R.I. & P. Railroad Co., 393 U.S. 129 (1968).
        \985\The concern about the impact of one State's regulation upon 
the laws of other States is in part a reflection of the Cooley national 
uniformity interest and partly a hesitation about the autonomy of other 
States, E.g., CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 88-89 
(1987); Brown-Forman Distillers Corp. v. New York State Liquor Auth., 
476 U.S. 573, 583-584 (1986).
        \986\Southern Pacific Co. v. Arizona, 325 U.S. 761, 771-775 

        Conversely, the Court found that as a safety measure the state 
cap had ``at most slight and dubious advantage, if any, over unregulated 
train lengths.'' That is, while there were safety problems

[[Page 238]]
with longer trains, the shorter trains mandated by state law required 
increases in the numbers of trains and train operations and a consequent 
increase in accidents generally more severe than those attributable to 
longer trains. In short, the evidence did not show that the cap lessened 
rather than increased the danger of accidents.\987\

        \987\Id., 775-779, 781-784.

        Conflicting state regulations appeared in Bibb v. Navajo Freight 
Lines, Inc.\988\ There, Illinois required the use of contour mudguards 
on trucks and trailers operating on the State's highways, while adjacent 
Arkansas required the use of straight mudguards and banned contoured 
ones. At least 45 States authorized straight mudguards. The Court sifted 
the evidence and found it conflicting on the comparative safety 
advantages of contoured and straight mudguards. But, admitting that if 
that were all that was involved the Court would have to sustain the 
costs and burdens of outfitting with the required mudguards, the Court 
invalidated the Illinois law, because of the massive burden on 
interstate commerce occasioned by the necessity of truckers to shift 
cargoes to differently designed vehicles at the State's borders.

        \988\359 U.S. 520 (1959).

        Arguably, the Court in more recent years has continued to 
stiffen the scrutiny with which it reviews state regulation of 
interstate carriers purportedly for safety reasons.\989\ Difficulty 
attends any evaluation of the possible developing approach, inasmuch as 
the Court has spoken with several voices. A close reading, however, 
indicates that while the Court is most reluctant to invalidate 
regulations that touch upon safety and that if safety justifications are 
not illusory it will not second-guess legislative judgment, nonetheless, 
the Court will not accept, without more, state assertions of safety 
motivations. ``Regulations designed for that salutary purpose 
nevertheless may further the purpose so marginally, and interfere with 
commerce so substantially, as to be invalid under the Commerce Clause.'' 
Rather, the asserted safety purpose must be weighed against the degree 
of interference with interstate commerce. ``This `weighing' . . . 
requires . . . `a sensitive consideration of the weight and nature of 
the state regulatory concern in light of the extent of the burden 
imposed on the course of interstate commerce.''\990\

        \989\Raymond Motor Transp. v. Rice, 434 U.S. 429 (1978); Kassel 
v. Consolidated Freightways Corp., 450 U.S. 662 (1981).
        \990\Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 67-
671 (1981) (quoting Raymond Motor Transp. v. Rice, 434 U.S. 429, 441, 
443 (1978)). Both cases invalidated state prohibitions of the use of 65-
foot single-trailer trucks on state highways.


[[Page 239]]

        Balancing has been used in other than transportation-industry 
cases. Indeed, the modern restatement of the standard was in such a 
case.\991\ There, the State required cantaloupes grown in the State to 
be packed there, rather than in an adjacent State, so that in-state 
packers' names would be associated with a superior product. Promotion of 
a local industry was legitimate, the Court, said, but it did not justify 
the substantial expense the company would have to incur to comply. State 
efforts to protect local markets, concerns, or consumers against outside 
companies have largely been unsuccessful. Thus, a state law that 
prohibited ownership of local investment-advisory businesses by out-of-
state banks, bank-holding companies, and trust companies was 
invalidated.\992\ The Court plainly thought the statute was 
protectionist, but instead of voiding it for that reason it held that 
the legitimate interests the State might have did not justify the 
burdens placed on out-of-state companies and that the State could pursue 
the accomplishment of legitimate ends through some intermediate form of 
regulation. In Edgar v. Mite Corp.,\993\ an Illinois regulation of take-
over attempts of companies that had specified business contacts with the 
State, as applied to an attempted take-over of a Delaware corporation 
with its principal place of business in Connecticut, was found to 
constitute an undue burden, with special emphasis upon the 
extraterritorial effect of the law and the dangers of disuniformity. 
These problems were found lacking in the next case, in which the state 
statute regulated the manner in which purchasers of corporations 
chartered within the State and with a specified percentage of in-state 
shareholders could proceed with their take-over efforts. The Court 
emphasized that the State was regulating only its own corporations, 
which it was empowered to do, and no matter how many other States 
adopted such laws there would be no conflict. The burdens on interstate 
commerce, and the Court was not that clear that the effects of the law 
were burdensome in the appropriate context, were justified by the 
State's interests in regulating its corporations and resident 

        \991\Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).
        \992\Lewis v. BT Investment Managers, Inc., 447 U.S. 27 (1980).
        \993\457 U.S. 624 (1982) (plurality opinion).
        \994\CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).

        In other areas, while the Court repeats balancing language, it 
has not applied it with any appreciable bite,\995\ but in most re

[[Page 240]]
spects the state regulations involved are at most problematic in the 
context of the concerns of the commerce clause.

        \995\E.g., Northwest Central Pipeline Corp. v. State Corp. Comm. 
of Kansas, 489 U.S. 493, 525-526 (1989); Minnesota v. Clover Leaf 
Creamery Co., 449 U.S. 456, 472-474 (1981); Exxon Corp. v. Governor of 
Maryland, 437 U.S. 117, 127-128 (1978). But see Bendix Autolite Corp. v. 
Midwesco Enterprises, Inc., 486 U.S. 888 (1988).
      Foreign Commerce and State Powers

        State taxation and regulation of commerce from abroad are also 
subject to negative commerce clause constraints. In the seminal case of 
Brown v. Maryland,\996\ in the course of striking down a state statute 
requiring ``all importers of foreign articles or commodities,'' 
preparatory to selling the goods, to take out a license, Chief Justice 
Marshall developed a lengthy exegesis explaining why the law was void 
under both the import-export clause\997\ and the commerce clause. 
According to the Chief Justice, an inseparable part of the right to 
import was the right to sell, and a tax on the sale of an article is a 
tax on the article itself. Thus, the taxing power of the States did not 
extend in any form to imports from abroad so long as they remain ``the 
property of the importer, in his warehouse, in the original form or 
package'' in which they were imported, hence, the famous ``original 
package'' doctrine. Only when the importer parts with his importations, 
mixes them into his general property by breaking up the packages, may 
the State treat them as taxable property.

        \996\12 Wheat. (25 U.S.) 419 (1827).
        \997\Article I, Sec. 10, cl. 2. This aspect of the doctrine of 
the case was considerably expanded in Low v. Austin, 13 Wall. (80 U.S.) 
29 (1872), and subsequent cases, to bar States from levying 
nondiscriminatory, ad valorem property taxes upon goods that are no 
longer in import transit. This line of cases was overruled in Michelin 
Tire Corp. v. Wages, 423 U.S. 276 (1976).

        Obviously, to the extent that the import-export clause was 
construed to impose a complete ban on taxation of imports so long as 
they were in their original packages, there was little occasion to 
develop a commerce-clause analysis that would have reached only 
discriminatory taxes or taxes upon goods in transit.\998\ In other 
respects, however, the Court has applied the foreign commerce aspect of 
the clause more stringently against state taxation.

        \998\See, e.g., Halliburton Oil Well Cementing Co. v. Reily, 373 
U.S. 64 (1963); Minnesota v. Blasius, 290 U.S. 1 (1933). After the 
holding in Michelin Tire, the two clauses are now congruent. The Court 
has observed that the two clauses are animated by the same policies. 
Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 449-450 n. 14 

        Thus, in Japan Line, Ltd. v. County of Los Angeles,\999\ the 
Court held that, in addition to satisfying the four requirements that 
govern the permissibility of state taxation of interstate 
commerce,\1000\ ``When a State seeks to tax the instrumentalities of for

[[Page 241]]
eign commerce, two additional considerations . . . come into play. The 
first is the enhanced risk of multiple taxation. . . . Second, a state 
tax on the instrumentalities of foreign commerce may impair federal 
uniformity in an area where federal uniformity is essential.''\1001\ 
Multiple taxation is to be avoided with respect to interstate commerce 
by apportionment so that no jurisdiction may tax all the property of a 
multistate business, and the rule of apportionment is enforced by the 
Supreme Court with jurisdiction over all the States. However, the Court 
is unable to enforce such a rule against another country, and the 
country of the domicile of the business may impose a tax on full value. 
Uniformity could be frustrated by disputes over multiple taxation, and 
trade disputes could result.

        \999\441 U.S. 434 (1979).
        \1000\Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 
(1977). A state tax failed to pass the nondiscrimination standard in 
Kraft General Foods, Inc. v. Iowa Dept. of Revenue & Finance, 112 S.Ct. 
2365 (1992). Iowa imposed an income tax on a unitary business operating 
throughout the United States and in several foreign countries. It 
included in the tax base of corporations the dividends the companies 
received from subsidiaries operating in foreign countries, but it 
allowed exclusions from the base of dividends received from domestic 
subsidiaries. A domestic subsidiary doing business in Iowa was taxed but 
not ones that did no business. Thus, there was a facial distinction 
between foreign and domestic commerce.
        \1001\Id., 446, 448.

        Applying both these concerns, the Court invalidated a state tax, 
a nondiscriminatory, ad valorem property tax, on foreign-owned 
instrumentalities, i.e., cargo containers, of international commerce. 
The containers were used exclusively in international commerce and were 
based in Japan, which did in fact tax them on full value. Thus, there 
was the actuality, not only the risk, of multiple taxation. National 
uniformity was endangered, because, while California taxed the Japanese 
containers, Japan did not tax American containers, and disputes 

        \1002\Id., 451-457. For income taxes, the test is more lenient, 
accepting not only the risk but the actuality of some double taxation as 
something simply inherent in accounting devices. Container Corp. of 
America v. Franchise Tax Bd., 463 U.S. 159, 187-192 (1983).

        On the other hand, the Court has upheld a state tax on all 
aviation fuel sold within the State as applied to a foreign airline 
operating charters to and from the United States. The Court found the 
Complete Auto standards met, and it similarly decided that the two 
standards specifically raised in foreign commerce cases were not 
violated. First, there was no danger of double taxation because the tax 
was imposed upon a discrete transaction, the sale of fuel, that occurred 
within one jurisdiction only. Second, the one-voice standard was 
satisfied, inasmuch as the United States had never entered into any 
compact with a foreign nation precluding such state taxation, having 
only signed agreements with others, having no force of law, aspiring to 
eliminate taxation that constituted im

[[Page 242]]
pediments to air travel.\1003\ Also, a state unitary-tax scheme that 
used a worldwide-combined reporting formula was upheld as applied to the 
taxing of the income of a domestic-based corporate group with extensive 
foreign operations.\1004\

        \1003\Wardair Canada v. Florida Dept. of Revenue, 477 U.S. 1 
        \1004\Container Corp. of America v. Franchise Tax Bd., 463 U.S. 
159 (1983). The validity of the formula as applied to domestic 
corporations with foreign parents or to foreign corporations with 
foreign parents or foreign subsidiaries, so that some of the income 
earned abroad would be taxed within the taxing State, is a question of 
some considerable dispute.

        The power to regulate foreign commerce was always broader than 
the States' power to tax it, an exercise of the ``police power'' 
recognized by Chief Justice Marshall in Brown v. Maryland.\1005\ That 
this power was constrained by notions of the national interest and 
preemption principles was evidenced in the cases striking down state 
efforts to curb and regulate the actions of shippers bringing persons 
into their ports.\1006\ On the other hand, quarantine legislation to 
protect the States' residents from disease and other hazards was 
commonly upheld though it regulated international commerce.\1007\ A 
state game-season law applied to criminalize the possession of a dead 
grouse imported from Russia was upheld because of the practical 
necessities of enforcement of domestic law.\1008\

        \1005\12 Wheat. (25 U.S.) 419, 443-444 (1827).
        \1006\New York City v. Miln, 11 Pet. (36 U.S.) 102 (1837) 
(upholding reporting requirements imposed on ships' masters), overruled 
in Henderson v. New York, 92 U.S. 259 (1876); Passenger Cases (Smith v. 
Turner), 7 How. (48 U.S.) 282 (1849); Chy Lung v. Freeman, 92 U.S. 275 
        \1007\Campagnie Francaise De Navigation a Vapeur v. Louisiana 
State Bd. of Health, 186 U.S. 380 (1902); Louisiana v. Texas, 176 U.S. 1 
(1900); Morgan v. Louisiana, 118 U.S. 455 (1886).
        \1008\New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908).

        Nowadays, state regulation of foreign commerce is likely to be 
judged by the extra factors set out in Japan Line.\1009\ Thus, the 
application of a state civil rights law to a corporation transporting 
passengers outside the State to an island in a foreign province was 
sustained in an opinion emphasizing that, because of the particularistic 
geographic situation the foreign commerce involved was more conceptual 
than actual, there was only a remote hazard of conflict between state 
law and the law of the other country and little if any prospect of 
burdening foreign commerce.\1010\

        \1009\Japan Line, Inc. v. County of Los Angeles, 441 U.S. 434, 
456 n. 20 (1979) (construing Bob-Lo Excursion Co. v. Michigan, 333 U.S. 
28 (1948)).

[[Page 243]]


      The General Issue: Preemption

        In Gibbons v. Ogden,\1011\ the Court, speaking by Chief Justice 
Marshall, held that New York legislation that excluded from the 
navigable waters of that State steam vessels enrolled and licensed under 
an act of Congress to engage in the coasting trade was in conflict with 
the federal law and hence void.\1012\ The result, said the Chief 
Justice, was required by the supremacy clause, which proclaimed not only 
that the Constitution itself but statutes enacted pursuant to it and 
treaties superseded state laws that ``interfere with, or are contrary to 
the laws of Congress . . . . In every such case, the act of Congress, or 
the treaty, is supreme; and the law of the State, though enacted in the 
exercise of powers not controverted, must yield to it.''\1013\

        \1011\9 Wheat. (22 U.S.) 1 (1824).
        \1012\A modern application of Gibbons v. Ogden is Douglas v. 
Seacoast Products, 431 U.S. 265 (1977), in which the Court, in reliance 
on the present version of the licensing statute utilized by Chief 
Justice Marshall, struck down state laws curtailing the operations of 
federally licensed vessels. In the course of the Douglas opinion, the 
Court observed that ``[a]lthough it is true that the Court's view in 
Gibbons of the intent of the Second Congress in passing the Enrollment 
and Licensing Act is considered incorrect by commentators, its 
provisions have been repeatedly re-enacted in substantially the same 
form. We can safely assume that Congress was aware of the holding, as 
well as the criticism, of a case so renowned as Gibbons. We have no 
doubt that Congress has ratified the statutory interpretation of Gibbons 
and its progeny.'' Id., 278-279.
        \1013\Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 211 (1824). See 
also McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 436 (1819). Although 
preemption is basically constitutional in nature, deriving its 
forcefulness from the supremacy clause, it is much more like statutory 
decisionmaking, inasmuch as it depends upon an interpretation of an act 
of Congress in determining whether a state law is ousted. E.g., Douglas 
v. Seacoast Products, Inc., 431 U.S. 265, 271-272 (1977). See also Swift 
& Co. v. Wickham, 382 U.S. 111 (1965). ``Any such pre-emption or 
conflict claim is of course grounded in the Supremacy Clause of the 
Constitution: if a state measure conflicts with a federal requirement, 
the state provision must give way. The basic question involved in these 
cases, however, is never one of interpretation of the Federal 
Constitution but inevitably one of comparing two statutes.'' Id., 120.

        Since the turn of the century, federal legislation, primarily 
but not exclusively under the commerce clause, has penetrated deeper and 
deeper into areas once occupied by the regulatory power of the States. 
One result is that state laws on subjects about which Congress has 
legislated have been more and more frequently attacked as being 
incompatible with the acts of Congress and invalid under the supremacy 

        \1014\Cases considered under this heading are overwhelmingly 
about federal legislation based on the commerce clause, but the 
principles enunciated are identical whatever source of power Congress 
utilizes. Therefore, cases arising under legislation based on other 
powers are cited and treated interchangeably.


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        ``The constitutional principles of preemption, in whatever 
particular field of law they operate, are designed with a common end in 
view: to avoid conflicting regulation of conduct by various official 
bodies which might have some authority over the subject matter.''\1015\ 
As Justice Black once explained in a much quoted exposition of the 
matter: ``There is not--and from the very nature of the problem there 
cannot be--any rigid formula or rule which can be used as a universal 
pattern to determine the meaning and purpose of every act of Congress. 
This Court, in considering the validity of state laws in the light of 
treaties or federal laws touching the same subject, has made use of the 
following expressions: conflicting; contrary to; occupying the field; 
repugnance; difference; irreconcilability; inconsistency; violation; 
curtailment; and interference. But none of these expressions provides an 
infallible constitutional test or an exclusive constitutional yardstick. 
In the final analysis, there can be no one crystal clear distinctly 
marked formula. Our primary function is to determine whether, under the 
circumstances of this particular case, Pennsylvania's law stands as an 
obstacle to the accomplishment and execution of the full purposes and 
objectives of Congress.''\1016\

        \1015\Amalgamated Assn. of Street, Electric Ry. & Motor Coach 
Employees v. Lockridge, 403 U.S. 274, 285-286 (1971).
        \1016\Hines v. Davidowitz, 312 U.S. 52, 67 (1941). This case 
arose under the immigration power of cl. 4.

        Before setting out in their various forms the standards and 
canons to which the Court formally adheres, one must still recognize the 
highly subjective nature of their application. As an astute observer 
long ago observed, ``the use or non-use of particular tests, as well as 
their content, is influenced more by judicial reaction to the 
desirability of the state legislation brought into question than by 
metaphorical sign-language of `occupation of the field.' And it would 
seem that this is largely unavoidable. The Court, in order to determine 
an unexpressed congressional intent, has undertaken the task of making 
the independent judgment of social values that Congress has failed to 
make. In making this determination, the Court's evaluation of the 
desirability of overlapping regulatory schemes or overlapping criminal 
sanctions cannot but be a substantial factor.''\1017\

        \1017\Cramton, Pennsylvania v. Nelson: A Case Study in Federal 
Preemption, 26 U. Chi. L. Rev. 85, 87-88 (1956). ``The [Court] appears 
to use essentially the same reasoning process in a case nominally 
hinging on preemption as it has in past cases in which the question was 
whether the state law regulated or burdened interstate commerce. [The] 
Court has adopted the same weighing of interests approach in preemption 
cases that it uses to determine whether a state law unjustifiably 
burdens interstate commerce. In a number of situations the Court has 
invalidated statutes on the preemption ground when it appeared that the 
state laws sought to favor local economic interests at the expense of 
the interstate market. On the other hand, when the Court has been 
satisfied that valid local interests, such as those in safety or in the 
reputable operation of local business, outweigh the restrictive effect 
on interstate commerce, the Court has rejected the preemption argument 
and allowed state regulation to stand.'' Note, Preemption as a 
Preferential Ground: A New Canon of Construction, 12 Stan. L. Rev. 208, 
217 (1959) (quoted approvingly as a ``thoughtful student comment'' in G. 
Gunther, Constitutional Law (12th ed. 1991), 297).


[[Page 245]]

        Preemption Standards.--Until roughly the New Deal, as recited 
above, the Supreme Court applied a doctrine of ``dual federalism,'' 
under which the Federal Government and the States were separate 
sovereigns, each preeminent in its own fields but not overlapping. This 
conception affected preemption cases, with the Court taking the view, 
largely, that any congressional regulation of a subject effectively 
preempted the field and ousted the States.\1018\ Thus, when Congress 
entered the field of railroad regulation, the result was invalidation of 
many previously enacted state measures. Even here, however, safety 
measures tended to survive, and health and safety legislation in other 
areas were protected from the effects of federal regulatory actions.

        \1018\E.g., Charleston & W. Car. Ry. v. Varnville Furniture Co., 
237 U.S. 597, 604 (1915). But see Corn Products Refining Co. v. Eddy, 
249 U.S. 427, 438 (1919).

        In the 1940s, the Court began to develop modern standards for 
determining when preemption occurred, which are still recited and relied 
on.\1019\ All modern cases recite some variation of the basic standards. 
``[T]he question whether a certain state action is pre-empted by federal 
law is one of congressional intent. The purpose of Congress is the 
ultimate touchstone. To discern Congress' intent we examine the explicit 
statutory language and the structure and purpose of the statute.''\1020\ 
Congress' intent to supplant state authority in a particular field may 
be express in the terms of the statute.\1021\ Since preemption cases, 
when the statute contains no express provision, theoretically turn on 
statutory construction, generalizations about them can carry one only so 
far. Each case must construe a different federal statute with a distinct 
legislative history. If the statute and the legislative history are 
silent or unclear, the Supreme Court has developed over time general 
criteria which

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it purports to utilize in determining the preemptive effect of federal 

        \1019\E.g., Hines v. Davidowitz, 312 U.S. 52 (1941); Cloverleaf 
Butter v. Patterson, 315 U.S. 148 (1942); Rice v. Santa Fe Elevator Co., 
331 U.S. 218 (1947); California v. Zook, 336 U.S. 725 (1949).
        \1020\Gade v. National Solid Wastes Mgmt. Assn., 112 S.Ct. 2374, 
2381-2382 (1992) (internal quotation marks and case citations omitted). 
Recourse to legislative history as one means of ascertaining 
congressional intent, although contested, is permissible. Wisconsin 
Public Intervenor v. Mortier, 501 U.S. 597, 606-612 & n. 4 (1991).
        \1021\Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); FMC 
Corp. v. Holliday, 498 U.S. 52, 56-57 (1991); Wisconsin Public 
Intervenor v. Mortier, 501 U.S. 597, 604-605 (1991).

        ``Absent explicit pre-emptive language, we have recognized at 
least two types of implied pre-emption: field pre-emption, where the 
scheme of federal regulation is so pervasive as to make reasonable the 
inference that Congress left no room for the States to supplement it, 
. . . and conflict pre-emption, where compliance with both federal and 
state regulations is a physical impossibility, . . . or where state law 
stands as an obstacle to the accomplishment and execution of the full 
purposes and objectives of Congress.''\1022\ ``Preemption of state law 
by federal statute or regulation is not favored `in the absence of 
persuasive reasons--either that the nature of the regulated subject 
matters permits no other conclusion, or that the Congress has 
unmistakably so ordained.''\1023\ However, ``[t]he relative importance 
to the State of its own law is not material when there is a conflict 
with a valid federal law, for the Framers of our Constitution provided 
that the federal law must prevail.''\1024\

        \1022\Gade v. National Solid Wastes Mgmt. Assn., 112 S.Ct. 2374, 
2383 (1992) (internal quotation marks and case citations omitted). The 
same or similar language is used throughout the preemption cases. E.g., 
Cipollone v. Liggett Group, Inc, 112 S.Ct. 2608, 2617 (1992); id., 2625-
2626 (Justice Blackmun concurring and dissenting); id., 2632-2634 
(Justice Scalia concurring and dissenting); Wisconsin Public Intervenor 
v. Mortier, 501 U.S. 597, 604-605 (1991); English v. General Electric 
Co., 496 U.S. 72, 78-80 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 
238, 248 (1984); Pacific Gas & Elec. Co. v. State Energy Resources 
Conservation & Dev. Comm., 461 U.S. 190, 203-204 (1983); Fidelity 
Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153 (1982); 
Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963); Hines 
v. Davidowitz, 312 U.S. 52, 67 (1941).
        \1023\Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 
(1963); Chicago & Northwestern Transp. Co. v. Kalo Brick & Tile Co., 450 
U.S. 311, 317 (1981). Where Congress legislates in a field traditionally 
occupied by the States, courts should ``start with the assumption that 
the historic police powers of the States were not to be superseded by 
the Federal Act unless that was the clear and manifest purpose of 
Congress.'' Pacific Gas & Electric Co. v. State Energy Resources 
Conservation & Dev. Comm., 461 U.S. 190, 206 (1983) ((quoting Rice v. 
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
        \1024\Free v. Brand, 369 U.S. 633, 666 (1962).

        In the final conclusion, ``the generalities'' that may be drawn 
from the cases do not decide them. Rather, ``the fate of state 
legislation in these cases has not been determined by these generalities 
but by the weight of the circumstances and the practical and experienced 
judgment in applying these generalities to the particular 

        \1025\Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 (1944) 
(per Justice Frankfurter).

        The Standards Applied.-- As might be expected from the caveat 
just quoted, any overview of the Court's preemption decisions

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can only make the field seem muddled and to some extent it is. But some 
guidelines may be extracted.

        Express Preemption. Of course, it is possible for Congress to 
write preemptive language that clearly and cleanly prescribes or does 
not prescribe displacement of state laws in an area.\1026\ Provisions 
governing preemption can be relatively interpretation free.\1027\ For 
example, a prohibition of state taxes on carriage of air passengers ``or 
on the gross receipts derived therefrom'' was held to preempt a state 
tax on airlines, described by the State as a personal property tax, but 
based on a percentage of the airline's gross income; ``the manner in 
which the state legislature has described and categorized [the tax] 
cannot mask the fact that the purpose and effect of the provision are to 
impose a levy upon the gross receipts of airlines.''\1028\ But, more 
often than not, express preemptive language may be ambiguous or at least 
not free from conflicting interpretation. Thus, the Court was divided 
with respect to whether a provision of the Airline Deregulation Act 
proscribing the States from having and enforcing laws ``relating to 
rates, routes, or services of any air carrier'' applied to displace 
state consumer-protection laws regulating airline fare 

        \1026\Not only congressional enactments can preempt. Agency 
regulations, when Congress has expressly or implied empowered these 
bodies to preempt, are ``the supreme law of the land'' under the 
supremacy clause and can displace state law. E.g., City of New York v. 
FCC, 486 U.S. 57, 63-64 (1988); Louisiana Public Service Comm. v. FCC, 
476 U.S. 355 (1986); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 
(1984); Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 
141 (1982). Federal common law, i.e., law promulgated by the courts 
respecting uniquely federal interests and absent explicit statutory 
directive by Congress, can also displace state law. See Boyle v. United 
Technologies Corp., 487 U.S. 500 (1988) (Supreme Court promulgated 
common-law rule creating government-contractor defense in tort liability 
suits, despite Congress having considered and failed to enact bills 
doing precisely this); Westfall v. Erwin, 484 U.S. 292 (1988) (civil 
liability of federal officials for actions taken in the course of their 
duty). Finally, ordinances of local governments are subject to 
preemption under the same standards as state law. Hillsborough County v. 
Automated Medical Laboratories, 471 U.S. 707 (1985).
        \1027\Thus, Sec. 408 of the Federal Meat Inspection Act, as 
amended by the Wholesome Meat Act, 21 U.S. C. Sec. 678, provides that 
``[m]arking, labeling, packaging, or ingredient requirements in addition 
to, or different than, those made under this chapter may not be imposed 
by any state . . . .'' See Jones v. Rath Packing Co., 430 U.S. 519, 528-
532 (1977). Similarly, much state action is saved by the Securities 
Exchange Act of 1934, 15 U.S.C. Sec. 78bb(a), which states that 
``[n]othing in this chapter shall affect the jurisdiction of the 
securities commissioner (or any agency or officer performing like 
functions) of any State over any security or any person insofar as it 
does not conflict with the provisions of this chapter or the rules and 
regulations thereunder.'' For examples of other express preemptive 
provisions, see Norfolk & Western Railway Co. v. American Train 
Dispatchers' Assn., 499 U.S. 117 (1991); Exxon Corp. v. Hunt, 475 U.S. 
355 (1986).
        \1028\Aloha Airlines v. Director of Taxation, 464 U.S. 7, 13-14 
        \1029\Morales v. TWA, 112 S.Ct. 2031 (1992). The section, 49 
U.S.C. Sec. 1305(a)(1), was held to preempt state rules on advertising.


[[Page 248]]

        Perhaps the broadest preemption section ever enacted, Sec. 514 
of the Employment Retirement Income Security Act of 1974 (ERISA), is so 
constructed that the Court has been moved to comment that the provisions 
``are not a model of legislative drafting.''\1030\ The section declares 
that the statute shall ``supersede any and all State laws insofar as 
they now or hereafter relate to any employee benefit plan,'' but saves 
to the States the power to enforce ``law[s] . . . which regulates 
insurance, banking, or securities,'' except that an employee benefit 
plan governed by ERISA shall not be ``deemed'' an insurance company, an 
insurer, or engaged in the business of insurance for purposes of state 
laws ``purporting to regulate'' insurance companies or insurance 
contracts.\1031\ Interpretation of the provisions has resulted in 
contentious and divided Court opinions.\1032\

        \1030\Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 
739 (1985), repeated in FMC Corp. v. Holliday, 498 U.S. 52, 58 (1991).
        \1031\29 U.S.C. Sec. Sec. 1144(a), 1144(b)(2)(A), 1144(b)(2)(B). 
The Court has described this section as a ``virtually unique pre-emption 
provision.'' Franchise Tax Board v. Construction Laborers Vacation 
Trust, 463 U.S. 1, 24 n. 26 (1983). See Ingersoll-Rand Co. v. McClendon, 
498 U.S. 133, 138-139 (1990); and see id., 142-145 (describing and 
applying another preemption provision of ERISA).
        \1032\Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) 
(ERISA preempts state common-law claim of wrongful discharge to prevent 
employee attaining benefits under plan covered by ERISA); FMC Corp. v. 
Holliday, 498 U.S. 52 (1990) (provision of state motor-vehicle 
financial-responsibility law barring subrogation and reimbursement from 
claimant's tort recovery for benefits received from a self-insured 
health-care plan preempted by ERISA); Fort Halifax Packing Co. v. Coyne, 
482 U.S. 1 (1987) (state law requiring employers to provide a one-time 
severance payment to employees in the event of a plant closing held not 
preempted by 5-4 vote); Metropolitan Life Ins. Co. v. Massachusetts, 471 
U.S. 724 (1985) (state law mandating that certain minimum mental-health-
care benefits be provided to those insured under general health-
insurance policy or employee health-care plan is a law ``which regulates 
insurance'' and is not preempted); Shaw v. Delta Air Lines, Inc., 463 
U.S. 85 (1983) (state law forbidding discrimination in employee benefit 
plans on the basis of pregnancy not preempted, because of another saving 
provision in ERISA, and provision requiring employers to pay sick-leave 
benefits to employees unable to work because of pregnancy not preempted 
under construction of coverage sections, but both laws ``relate to'' 
employee benefit plans); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 
504 (1981) (state law prohibiting plans from reducing benefits by amount 
of workers' compensation awards ``relates to'' employee benefit plan and 
is preempted);

        Illustrative of the judicial difficulty with ambiguous 
preemption language is the fractured opinions in the Cipollone case, in 
which the Court had to decide whether sections of the Federal Cigarette 
Labeling and Advertising Act, enacted in 1965 and 1969, preempted state 
common-law actions against a cigarette company for the alleged harm 
visited on a smoker.\1033\ The 1965 provision

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barred the requirement of any ``statement'' relating to smoking health, 
other than what the federal law imposed, and the 1969 provision barred 
the imposition of any ``requirement or prohibition based on smoking and 
health'' by any ``State law.'' It was, thus, a fair question whether 
common-law claims, based on design defect, failure to warn, breach of 
express warranty, fraudulent misrepresentation, and conspiracy to 
defraud, were preempted or whether only positive state enactments came 
within the scope of the clauses. Two groups of Justices concluded that 
the 1965 section reached only positive state law and did not preempt 
common-law actions;\1034\ different alignments of Justices concluded 
that the 1969 provisions did reach common-law claims, as well as 
positive enactments, and did preempt some of the claims insofar as they 
in fact constituted a requirement or prohibition based on smoking 

        \1033\Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608 (1992). 
The decision as a canon of construction promulgated two controversial 
rules. First, the courts should interpret narrowly provisions that 
purport to preempt state police-power regulations, and, second, that 
when a law has express preemption language courts should look only to 
that language and presume that when the preemptive reach of a law is 
defined Congress did not intend to go beyond that reach, so that field 
and conflict preemption will not be found. Id., 2618; and id., 2625-2626 
(Justice Blackmun concurring and dissenting). Both parts of this canon 
are departures from established law. Narrow construction when state 
police powers are involved has hitherto related to implied preemption, 
not express, and courts generally have applied ordinary-meaning 
construction to such statutory language; further, courts have not 
precluded the finding of conflict preemption, though perhaps field 
preemption, because of the existence of some express preemptive 
language. See id., 2632-2634 (Justice Scalia concurring and dissenting).
        \1034\Id., 2618-2619 (opinion of the court), 2626 (Justice 
Blackmun concurring).
        \1035\Id., 2619-2625 (plurality opinion), 2626-2631 (Justice 
Blackmun concurring and dissenting), 2634-2637 (Justice Scalia 
concurring and dissenting).

        Field Preemption. Where the scheme of federal regulation is ``so 
pervasive as to make reasonable the inference that Congress left no room 
for the States to supplement it,''\1036\ States are ousted from the 
field. Still a paradigmatic example of field preemption is Hines v. 
Davidowitz,\1037\ in which the Court held that a new federal law 
requiring the registration of all aliens in the country precluded 
enforcement of a pre-existing state law mandating registration of aliens 
within the State. Adverting to the supremacy of national power in 
foreign relations and the sensitivity of the relationship between the 
regulation of aliens and the conduct of foreign affairs, the Court had 
little difficulty declaring the entire field to have been occupied by 
federal law.\1038\ Similarly, in Pennsylvania

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v. Nelson,\1039\ the Court invalidated as preempted a state law 
punishing sedition against the National Government. The Court enunciated 
a three-part test: 1) the pervasiveness of federal regulation; 2) 
federal occupation of the field as necessitated by the need for national 
uniformity; and 3) the danger of conflict between state and federal 

        \1036\Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 
The case also is the source of the often quoted maxim that when Congress 
legislates in a field traditionally occupied by the States, courts 
should ``start with the assumption that the historic police powers of 
the States were not to be superseded by the Federal Act unless that was 
the clear and manifest purpose of Congress.'' Ibid.
        \1037\312 U.S. 52 (1941).
        \1038\The Court also said that courts must look to see whether 
under the circumstances of a particular case, the state law ``stands as 
an obstacle to the accomplishment and execution of the full purposes and 
objectives of Congress.'' Id., 67. That standard is obviously drawn from 
conflict preemption, for the two standards are frequently intermixed. 
Nonetheless, not all state regulation is precluded. De Canas v. Bica, 
424 U.S. 351 (1976) (upholding a state law penalizing the employment of 
an illegal alien, the case arising before enactment of the federal law 
doing the same thing).
        \1039\350 U.S. 497 (1956).
        \1040\Id., 502-505. Obviously, there is a noticeable blending 
into conflict preemption.

        The Rice case itself held that a federal system of regulating 
the operations of warehouses and the rates they charged completely 
occupied the field and ousted state regulation.\1041\ However, it is 
often a close decision whether a federal law has regulated part of a 
field, however defined, or the whole area, so that state law cannot even 
supplement the federal.\1042\ Illustrative of this point is the Court's 
holding that the Atomic Energy Act's preemption of the safety aspects of 
nuclear power did not invalidate a state law conditioning construction 
of nuclear power plants on a finding by a state agency that adequate 
storage and disposal facilities were available to treat nuclear wastes, 
since ``economic'' regulation of power generation has traditionally been 
left to the States - an arrangement maintained by the Act - and since 
the state law could be justified as an economic rather than a safety 

        \1041\Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
        \1042\Compare Campbell v. Hussey, 368 U.S. 297 (1961) (state law 
requiring tobacco of a certain type to be marked by white tags, ousted 
by federal regulation that occupied the field and left no room for 
supplementation), with Florida Lime & Avocado Growers, Inc., 373 U.S. 
132 (1963) (state law setting minimum oil content for avocados certified 
as mature by federal regulation is complementary to federal law, since 
federal standard was a minimum one, the field having not been occupied). 
One should be wary of assuming that a state law that has dual purposes 
and impacts will not, just for the duality, be held to be preempted. See 
Gade v. National Solid Wastes Mgmt., 112 S.Ct. 2374 (1992); Perez v. 
Campbell, 402 U.S. 637 (1971) (under bankruptcy clause).
        \1043\Pacific Gas & Electric Co. v. Energy Resources 
Conservation & Dev. Comm., 461 U.S. 190 (1983). Neither does the same 
reservation of exclusive authority to regulate nuclear safety preempt 
imposition of punitive damages under state tort law, even if based upon 
the jury's conclusion that a nuclear licensee failed to follow adequate 
safety precautions. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). 
See also English v. General Electric Co., 496 U.S. 72 (1990) (employee's 
state-law claim for intentional infliction of emotional distress for her 
nuclear-plant employer's actions retaliating for her whistleblowing is 
not preempted as relating to nuclear safety).

        A city's effort to enforce stiff penalties for ship pollution 
that resulted from boilers approved by the Federal Government was

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held not preempted, the field of boiler safety, but not boiler 
pollution, having been occupied by federal regulation.\1044\ A state 
liability scheme imposing cleanup costs and strict, no-fault liability 
on shore facilities and ships for any oil-spill damage was held to 
complement a federal law concerned solely with recovery of actual 
cleanup costs incurred by the Federal Government and which textually 
presupposed federal-state cooperation.\1045\ On the other hand, a 
comprehensive regulation of the design, size, and movement of oil 
tankers in Puget Sound was found, save in one respect, to be either 
expressly or implicitly preempted by federal law and regulations. 
Critical to the determination was the Court's conclusion that Congress, 
without actually saying so, had intended to mandate exclusive standards 
and a single federal decisionmaker for safety purposes in vessel 
regulation.\1046\ Also, a closely divided Court voided a city ordinance 
placing an 11 p.m. to 7 a.m. curfew on jet flights from the city airport 
where, despite the absence of preemptive language in federal law, 
federal regulation of aircraft noise was of such a pervasive nature as 
to leave no room for state or local regulation.\1047\

        \1044\Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 
        \1045\Askew v. American Waterways Operators, 411 U.S. 325 
        \1046\Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). See 
also Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) (preempting a state 
ban on pass-through of a severance tax on oil and gas, because Congress 
has occupied the field of wholesale sales of natural gas in interstate 
commerce); Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988) 
(Natural Gas Act preempts state regulation of securities issuance by 
covered gas companies); Bonito Boats v. Thunder Craft Boats, 489 U.S. 
141 (1989) (under patent clause, state law extending patent-like 
protection to unpatented designs invades an area of pervasive federal 
        \1047\City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 

        Congress may preempt state regulation without itself prescribing 
a federal standard; it may deregulate a field and thus occupy it by 
opting for market regulation and precluding state or local 

        \1048\Transcontinental Gas Pipe Line Corp. v. Mississippi Oil & 
Gas Board, 474 U.S. 409 (1986); Puerto Rico Dept. of Consumer Affairs v. 
Isla Petroleum Corp., 485 U.S. 495 (1988).

        Conflict Preemption. Several possible situations will lead to a 
holding that a state law is preempted as in conflict with federal law. 
First, it may be that the two laws, federal and state, will actually 
conflict. Thus, in Rose v. Arkansas State Police,\1049\ federal law 
provided for death benefits for state law enforcement officers ``in 
addition to'' any other compensation, while the state law required a 
reduction in state benefits by the amount received from other

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sources. The Court, in a brief, per curiam opinion, had no difficulty 
finding the state provision preempted.\1050\

        \1049\479 U.S. 1 (1986).
        \1050\See also Lawrence County v. Lead-Deadwood School Dist., 
469 U.S. 256 (1985) (state law requiring local governments to distribute 
federal payments in lieu of taxes in same manner as general state-tax 
revenues conflicts with federal law authorizing local governments to use 
the payments for any governmental purpose); Southland Corp. v. Keating, 
465 U.S. 1 (1984) (state franchise law requiring judicial resolution of 
claims preempted by federal arbitration law precluding adjudication in 
state or federal courts of claims parties had contracted to submit to 
arbitration); Perry v. Thomas, 482 U.S. 483 (1987) (federal arbitration 
law preempts state law providing that court actions for collection of 
wages may be maintained without regard to agreements to arbitrate). See 
also Free v. Bland, 369 U.S. 663 (1962).

        Second, conflict preemption may occur when it is practically 
impossible to comply with the terms of both laws. Thus, where a federal 
agency had authorized federal savings and loan associations to include 
``due-on-sale'' clauses in their loan instruments and where the State 
had largely prevented inclusion of such clauses, while it was literally 
possible for lenders to comply with both rules, the federal rule being 
permissive, the state regulation prevented the exercise of the 
flexibility the federal agency had conferred and was preempted.\1051\ On 
the other hand, it was possible for an employer to comply both with a 
state law mandating leave and reinstatement to pregnant employees and 
with a federal law prohibiting employment discrimination on the basis of 
pregnancy.\1052\ Similarly, when faced with both federal and state 
standards on the ripeness of avocados, the Court discerned that the 
federal standard was a ``minimum'' one rather than a ``uniform'' one and 
decided that growers could comply with both.\1053\

        \1051\Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 
U.S. 141 (1982).
        \1052\California Federal Savings & Loan Assn. v. Guerra, 479 
U.S. 272 (1987). Compare Cloverleaf Butter v. Patterson, 315 U.S. 148 
(1942) (federal law preempts more exacting state standards, even though 
both could be complied with and state standards were harmonious with 
purposes of federal law).
        \1053\Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 

        Third, a fruitful source of preemption is found when it is 
determined that the state law stands as an obstacle to the 
accomplishment of the full purposes and objectives of Congress.\1054\ 
Thus, the Court voided a state requirement that the average net weight 
of a package of flour in a lot could not be less than the net weight 
stated on the package. While applicable federal law permitted variations 
from stated weight caused by distribution losses, such as through 
partial dehydration, the State allowed no such deviation. Although it 
was possible for a producer to satisfy the federal standard while 
satisfying the tougher state standard, the Court discerned that to do so 
defeated one purpose of the federal requirement--the facilitating of 
value comparisons by shoppers. Because

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different producers in different situations in order to comply with the 
state standard may have to overpack flour to make up for dehydration 
loss, consumers would not be comparing packages containing identical 
amounts of flour solids.\1055\ In Felder v. Casey,\1056\ a state notice-
of-claim statute was found to frustrate the remedial objectives of civil 
rights laws as applied to actions brought in state court under 42 U. S. 
C. Sec. 1983. A state law recognizing the validity of an unrecorded oral 
sale of an aircraft was held preempted by the Federal Aviation Act's 
provision that unrecorded ``instruments'' of transfer are invalid, since 
the congressional purpose evidenced in the legislative history was to 
make information about an aircraft's title readily available by 
requiring that all transfers be documented and recorded.\1057\

        \1054\The standard is, of course, drawn from Hines v. 
Davidowitz, 312 U.S. 52, 67 (1941).
        \1055\Jones v. Rath Packing Co., 430 U.S. 519, 532-543 (1977).
        \1056\487 U.S. 131 (1988).
        \1057\Philco Aviation v. Shacket, 462 U.S. 406 (1983).

        Also, a state law making agricultural producers' associations 
the exclusive bargaining agents and requiring payment of service fees by 
nonmember producers was held to counter a strong federal policy 
protecting the right of farmers to join or not join such 
associations.\1058\ And a state assertion of the right to set minimum 
stream-flow requirements different from those established by FERC in its 
licensing capacity was denied as being preempted under the Federal Power 
Act, despite language requiring deference to state laws ``relating to 
the control, appropriation, use, or distribution of water.''\1059\

        \1058\Michigan Canners & Freezers Assn. v. Agricultural 
Marketing & Bargaining Bd., 467 U.S. 461 (1984). See also Nantahala 
Power & Light Co. v. Thornburg, 476 U.S. 953 (1986) (state allocation of 
costs for purposes of setting retail electricity rates, by disallowing 
costs permitted by FERC in setting wholesale rates, frustrated federal 
regulation by possibly preventing the utility from recovering in its 
sales the costs of paying the FERC-approved wholesale rate); Capital 
Cities Cable v. Crisp, 467 U.S. 691 (1984) (state ban on cable TV 
advertising frustrates federal policy in the copyright law by which 
cable operators pay a royalty fee for the right to retransmit distant 
broadcast signals upon agreement not to delete commercials); 
International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (damage action 
based on common law of downstream State frustrates Clean Water Act's 
policies favoring permitting State in interstate disputes and favoring 
predictability in permit process).
        \1059\California v. FERC, 495 U.S. 490 (1990). The savings 
clause was found inapplicable on the basis of an earlier interpretation 
of the language in First Iowa Hydro-Electric Cooperative v. FPC, 328 
U.S. 152 (1946).

        Contrarily, a comprehensive federal regulation of insecticides 
and other such chemicals was held not to preempt a town ordinance that 
required a permit for the spraying of pesticides, there being no 
conflict between requirements.\1060\ The application of state antitrust 
laws to authorize indirect purchasers to recover for all overcharges 
passed on to them by direct purchasers was held

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to implicate no preemption concerns, inasmuch as the federal antitrust 
laws had been interpreted as not permitting indirect purchasers to 
recover under federal law; state law may be inconsistent with federal 
law but in no way did it frustrate federal objectives and 
policies.\1061\ The effect of federal policy was not strong enough to 
warrant a holding of preemption when a State authorized condemnation of 
abandoned railroad property after conclusion of an ICC proceeding 
permitting abandonment, although the railroad's opportunity costs in the 
property had been considered in the decision on abandonment.\1062\

        \1060\Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 614-
616 (1991).
        \1061\California v. ARC America Corp., 490 U.S. 93 (1989).
        \1062\Hayfield Northern R. Co. v. Chicago & N. W. Transp. Co., 
467 U.S. 622 (1984). See also CTS Corp. v. Dynamics Corp. of America, 
481 U.S. 69 (1987) (federal law's broad purpose of protecting 
shareholders as a group is furthered by state anti-takeover law); Rose 
v. Rose, 481 U.S. 619 (1987) (provision governing veterans' disability 
benefits protects veterans' families as well as veterans, hence state 
child-support order resulting in payment out of benefits is not 

        Federal Versus State Labor Laws.--One group of cases, which has 
caused the Court much difficulty over the years, concerns the effect of 
federal labor laws on state power to govern labor-management relations. 
Although the Court some time ago reached a settled rule, changes in 
membership on the Court re-opened the issue and modified the rules.

        With the enactment of the National Labor Relations Act and 
subsequent amendments, Congress declared a national policy in labor-
management relations and established the NLRB to carry out that 
policy.\1063\ It became the Supreme Court's responsibility to determine 
what role state law on labor-management relations was to play. At first, 
the Court applied a test of determination whether the state regulation 
was in direct conflict with the national regulatory scheme. Thus, in one 
early case, the Court held that an order by a state board which 
commanded a union to desist from mass picketing of a factory and from 
assorted personal threats was not in conflict with the national law that 
had not been invoked and

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that did not touch on some of the union conduct in question.\1064\ A 
``cease and desist'' order of a state board implementing a state 
provision making it an unfair labor practice for employees to conduct a 
slowdown or to otherwise interfere with production while on the job was 
found not to conflict with federal law,\1065\ while another order of the 
board was also sustained in its prohibition of the discharge of an 
employee under a maintenance-of-membership clause inserted in a contract 
under pressure from the War Labor Board and which violated state 

        \1063\Throughout the ups-and-downs of federal labor-law 
preemption, it remains the rule that the Board remains preeminent and 
almost exclusive. See, e.g., Wisconsin Dept. of Industry v. Gould, Inc., 
475 U.S. 282 (1986) (States may not supplement Board enforcement by 
debarring from state contracts persons or firms that have violated the 
NLRA); Golden Gate Transit Corp. v. City of Los Angeles, 475 U.S. 608 
(1986) (City may not condition taxicab franchise on settlement of strike 
by set date, since this intrudes into collective-bargaining process 
protected by NLRA). On the other hand, the NLRA's protection of 
associational rights is not so strong as to outweigh the Social Security 
Act's policy permitting States to determine whether to award 
unemployment benefits to persons voluntarily unemployed as the result of 
a labor dispute. New York Telephone Co. v. New York Labor Dept., 440 
U.S. 519 (1979); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 
471 (1977); Baker v. General Motors Corp., 478 U.S. 621 (1986).
        \1064\Allen-Bradley Local No. 1111 v. WERB, 315 U.S. 740 (1942).
        \1065\United Automobile Workers v. WERB, 336 U.S. 245 (1949) 
(overruled in Machinists & Aerospace Workers v. WERC, 427 U.S. 132 
        \1066\Algoma Plywood Co. v. WERB, 336 U.S. 301 (1949).

        On the other hand, a state statute requiring business agents of 
unions operating in the State to file annual reports and to pay an 
annual fee of one dollar was voided as in conflict with federal 
law.\1067\ And state statutes providing for mediation and outlawing 
public utility strikes were similarly voided as being in specific 
conflict with federal law.\1068\ A somewhat different approach was noted 
in several cases in which the Court held that the federal act had so 
occupied the field in certain areas as to preclude state 
regulation.\1069\ The latter approach was predominant through the 1950s 
as the Court voided state court action in enjoining\1070\ or awarding

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damages\1071\ for peaceful picketing, in awarding of relief by damages 
or otherwise for conduct which constituted an unfair labor practice 
under federal law,\1072\ or in enforcing state antitrust laws so as to 
affect collective bargaining agreements\1073\ or to bar a strike as a 
restraint of trade,\1074\ even with regard to disputes over which the 
NLRB declined to assert jurisdiction because of the degree of effect on 
interstate commerce.\1075\

        \1067\Hill v. Florida ex rel. Watson, 325 U.S. 538 (1945). More 
recently, the Court has held that Hill's premise that the NLRA grants an 
unqualified right to select union officials has been removed by 
amendments prohibiting some convicted criminals from holding union 
office. Partly because the federal disqualification standard was itself 
dependent upon application of state law, the Court ruled that more 
stringent state disqualification provisions, also aimed at individuals 
who had been involved in racketeering and other criminal conduct, were 
not inconsistent with federal law. Brown v. Hotel Employees, 468 U.S. 
491 (1984).
        \1068\United Automobile Workers v. O'Brien, 339 U.S. 454 (1950); 
Bus Employees v. WERB, 340 U.S. 383 (1951). See also Bus Employees v. 
Missouri, 374 U.S. 74 (1963).
        \1069\Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955); Garner 
v. Teamsters Local 776, 346 U.S. 485 (1953); Bethlehem Steel Co. v. New 
York Employment Relations Board, 330 U.S. 767 (1947). Of course, where 
Congress clearly specifies, the Court has had no difficulty. Thus, in 
the NLRA, Congress provided, 29 U.S.C. Sec. 164(b), that state laws on 
the subject could override the federal law on union security 
arrangements and the Court sustained those laws. Lincoln Federal Labor 
Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL v. 
American Sash & Door Co., 335 U.S. 538 (1949). When Congress in the 
Railway Labor Act, 45 U.S.C. Sec. 152, Eleventh, provided that the 
federal law on union security was to override contrary state laws, the 
Court sustained that determination. Railway Employees' Department v. 
Hanson, 351 U.S. 225 (1956). The Court has held that state courts may 
adjudicate questions relating to the permissibility of particular types 
of union security arrangements under state law even though the issue 
involves as well an interpretation of federal law., Retail Clerks 
International Association v. Schermerhorn, 375 U.S. 96 (1963).
        \1070\Garner v. Teamsters Local 776, 346 U.S. 485 (1953); United 
Mine Workers v. Arkansas Flooring Co., 351 U.S. 62 (1956); Meat Cutters 
v. Fairlawn Meats, 353 U.S. 20 (1957); Construction Laborers v. Curry, 
371 U.S. 542 (1963).
        \1071\San Diego Building Trades Council v. Garmon, 353 U.S. 26 
        \1072\Guss v. Utah Labor Board, 353 U.S. 1 (1957).
        \1073\Teamsters Union v. Oliver, 358 U.S. 283 (1959).
        \1074\Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955).
        \1075\Guss v. Utah Labor Board, 353 U.S. 1 (1957). The ``no-
man's land'' thus created by the difference between the reach of 
Congress' commerce power and the NLRB's finite resources was closed by 
73 Stat. 541, 29 U.S.C. Sec. 164(c), which authorized the States to 
assume jurisdiction over disputes which the Board had indicated through 
promulgation of jurisdictional standards that it would not treat.

        In San Diego Building Trades Council v. Garmon,\1076\ the Court 
enunciated the rule, based on its previous decade of adjudication. 
``When an activity is arguably subject to Sec. 7 or Sec. 8 of the Act, 
the States . . . must defer to the exclusive competence of the National 
Labor Relations Board if the danger of state interference with national 
policy is to be averted.''\1077\

        \1076\359 U.S. 236 (1959).
        \1077\Id., 245. The rule is followed in, e.g., Radio & 
Television Technicians v. Broadcast Service of Mobile, 380 U.S. 255 
(1965); Hattiesburg Building & Trades Council v. Broome, 377 U.S. 126 
(1964); Longshoremen Local 1416 v. Ariadne Shipping Co., 397 U.S. 195 
(1970); Amalgamated Assn. of Street, Electric Railway & Motor Coach 
Employees v. Lockridge, 403 U.S. 274 (1971). Cf. Nash v. Florida 
Industrial Comm., 389 U.S. 235 (1967).

        For much of the period since Garmon, the dispute in the Court 
concerned the scope of the few exceptions permitted in the Garmon 
principle. First, when picketing is not wholly peaceful but is attended 
by intimidation, violence, and obstruction of the roads affording access 
to the struck establishment, state police powers have been held not 
disabled to deal with the conduct and narrowly-drawn injunctions 
directed against violence and mass picketing have been permitted\1078\ 
as well as damages to compensate for harm growing out of such 

        \1078\United Automobile Workers v. WERB, 351 U.S. 266 (1956); 
Youngdahl v. Rainfair, 355 U.S. 131 (1957).
        \1079\United Automobile Workers v. Russell, 356 U.S. 634 (1958); 
United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656 

        A 1958 case permitted a successful state court suit for 
reinstatement and damages for lost pay because of a wrongful expulsion, 
leading to discharge from employment, based on a theory that the union 
constitution and by-laws constitute a contract between the union and the 
members the terms of which can be enforced by state courts without the 
danger of a conflict between state and fed

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eral law.\1080\ The Court subsequently narrowed the interpretation of 
this ruling by holding in two cases that members who alleged union 
interference with their existing or prospective employment relations 
could not sue for damages but must file unfair labor practice charges 
with the NLRB.\1081\ Gonzales was said to be limited to ``purely 
internal union matters.''\1082\ Finally, Gonzales, was abandoned in a 
five-to-four decision in which the Court held that a person who alleged 
that his union had misinterpreted its constitution and its collective 
bargaining agreement with the individual's employer in expelling him 
from the union and causing him to be discharged from his employment 
because he was late paying his dues, had to pursue his federal 
remedies.\1083\ While it was not likely that in Gonzales, a state court 
resolution of the scope of duty owed the member by the union would 
implicate principles of federal law, Justice Harlan wrote for the Court, 
state court resolution in this case involved an interpretation of the 
contract's union security clause, a matter on which federal regulation 
is extensive.\1084\

        \1080\International Assn. of Machinists v. Gonzales, 356 U.S. 
617 (1958).
        \1081\Journeymen Local 100 v. Borden, 373 U.S. 690 (1963); Iron 
Workers Local 207 v. Perko, 373 U.S. 701 (1963). Applying Perko, the 
Court held that a state court action by a supervisor alleging union 
interference with his contractual relationship with his employer is 
preempted by the NLRA. Local 926, Intl. Union of Operating Engineers v. 
Jones, 460 U.S. 669 (1983).
        \1082\373 U.S., 697; 373 U.S., 705.
        \1083\Amalgamated Assn. of Street, Electric Railway & Motor 
Coach Employees v. Lockridge, 403 U.S. 274 (1971).
        \1084\Id., 296.

        One other exception has been based, like the violence cases, on 
the assumption that it concerns areas traditionally left to local law 
into which Congress would not want to intrude. In Linn v. Plant Guard 
Workers,\1085\ the Court permitted a state court adjudication of a 
defamation action arising out of a labor dispute. And in Letter Carriers 
v. Austin,\1086\ the Court held that federal law preempts state 
defamation laws in the context of labor disputes to the extent that the 
State seeks to make actionable defamatory statements in labor disputes 
published without knowledge of their falsity or in reckless disregard of 
truth or falsity.

        \1085\383 U.S. 53 (1966).
        \1086\418 U.S. 264 (1974).

        However, a state tort action for the intentional infliction of 
emotional distress occasioned through an alleged campaign of personal 
abuse and harassment of a member of the union by the union and its 
officials was held not preempted by federal labor law. Federal law was 
not directed to the ``outrageous conduct'' alleged, and NLRB resolution 
of the dispute would neither touch upon the claim of emotional distress 
and physical injury nor award the plaintiff

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any compensation. But state court jurisdiction, in order that there not 
be interference with the federal scheme, must be premised on tortious 
conduct either unrelated to employment discrimination or a function of 
the particularly abusive manner in which the discrimination is 
accomplished or threatened rather than a function of the actual or 
threatened discrimination itself.\1087\

        \1087\Farmer v. Carpenters, 430 U.S. 290 (1977). Following this 
case, the Court held that a state court action for misrepresentation and 
breach of contract, brought by replacement workers promised permanent 
employment when hired during a strike, was not preempted. The action for 
breach of contract by replacement workers having no remedies under the 
NLRA was found to be deeply rooted in local law and of only peripheral 
concern under the Act. Belknap, Inc. v. Hale, 463 U.S. 491 (1983). See 
also Intl. Longshoremen's Assn. v. Davis, 476 U.S. 380 (1986).

        A significant retrenchment of Garmon occurred in Sears, Roebuck 
& Co. v. Carpenters,\1088\ in the context of state court assertion of 
jurisdiction over trespassory picketing. Objecting to the company's use 
of nonunion work in one of its departments, the union picketed the 
store, using the company's property, the lot area surrounding the store, 
instead of the public sidewalks, to walk on. After the union refused to 
move its pickets to the sidewalk, the company sought and obtained a 
state court order enjoining the picketing on company property. Depending 
upon the union motivation for the picketing, it was either arguably 
prohibited or arguably protected by federal law, the trespassory nature 
of the picketing being one factor the NLRB would have looked to in 
determining at least the protected nature of the conduct. The Court 
held, however, that under the circumstances, neither the arguably 
prohibited nor the arguably protected rationale of Garmon was sufficient 
to deprive the state court of jurisdiction.

        \1088\436 U.S. 180 (1978).

        First, as to conduct arguably prohibited by NLRA, the Court 
seemingly expanded the Garmon exception recognizing state court 
jurisdiction for conduct that touches interests ``deeply rooted in local 
feeling''\1089\ in holding that where there exists ``a significant state 
interest in protecting the citizens from the challenged conduct'' and 
there exists ``little risk of interference with the regulatory 
jurisdiction'' of the NLRB, state law is not preempted. Here, there was 
obviously a significant state interest in protecting the company from 
trespass; the second, ``critical inquiry'' was whether the controversy 
presented to the state court was identical to or different from that 
which could have been presented to the Board. The Court concluded that 
the controversy was different. The Board would have been presented with 
determining the motivation of the picketing and the location of the 
picketing would have been irrele

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vant; the motivation was irrelevant to the state court and the situs of 
the picketing was the sole inquiry. Thus, there was deemed to be no 
realistic risk of state interference with Board jurisdiction.\1090\

        \1089\San Diego Bldg Trades Council v. Garmon, 359 U.S. 236, 244 
        \1090\Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 190-198 

        Second, in determining whether the picketing was protected, the 
Board would have been concerned with the situs of the picketing, since 
under federal labor laws the employer has no absolute right to prohibit 
union activity on his property. Preemption of state court jurisdiction 
was denied, nonetheless, in this case on two joined bases. One, 
preemption is not required in those cases in which the party who could 
have presented the protection issue to the Board has not done so and the 
other party to the dispute has no acceptable means of doing so. In this 
case, the union could have filed with the Board when the company 
demanded removal of the pickets, but did not, and the company could not 
file with the Board at all. Two, even if the matter is not presented to 
the Board, preemption is called for if there is a risk of erroneous 
state court adjudication of the protection issue that is unacceptable, 
so that one must look to the strength of the argument that the activity 
is protected. While the state court had to make an initial determination 
that the trespass was not protected under federal law, the same 
determination the Board would have made, in the instance of trespassory 
conduct, the risk of erroneous determination is small, because 
experience shows that a trespass is far more likely to be unprotected 
than protected.\1091\

        \1091\Id., 199-207.

        Introduction of these two balancing tests into the Garmon 
rationale substantially complicates determining when state courts do not 
have jurisdiction and will no doubt occasion much more litigation in 
state courts than has previously existed.

        Another series of cases involves not a Court-created exception 
to the Garmon rule but the applicability and interpretation of Sec. 301 
of the Taft-Hartley Act,\1092\ which authorizes suits in federal, and 
state,\1093\ courts to enforce collective bargaining agreements. The 
Court has held that in enacting Sec. 301, Congress authorized actions 
based on conduct arguably subject to the NLRA, so that the Garmon 
preemption doctrine does not preclude judicial enforcement of duties and 
obligations which would otherwise be within the exclusive jurisdiction 
of the NLRB so long as those duties and obli

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gations are embodied in a collective-bargaining agreement, perhaps as 
interpreted in an arbitration proceeding.\1094\

        \1092\61 Stat. 156 (1947), 29 U.S.C. Sec. 185(a).
        \1093\Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). The 
state courts must, however, apply federal law. Local 174, Teamsters v. 
Lucas Flour Co., 369 U.S. 95 (1962).
        \1094\Smith v. Evening News Assn., 371 U.S. 195 (1962); Humphrey 
v. Moore, 375 U.S. 335 (1964); Vaca v. Sipes, 386 U.S. 171 (1967).

        Here, too, the permissible role of state tort actions has been 
in great dispute. Generally, a state tort action as an alternative to a 
Sec. 301 arbitration or enforcement action is preempted if it is 
substantially dependent upon analysis of the terms of a collective-
bargaining agreement.\1095\ Thus, a state damage action for the bad-
faith handling of an insurance claim under a disability plan that was 
part of a collective-bargaining agreement was preempted because it 
involved interpretation of that agreement and because state enforcement 
would frustrate the policies of Sec. 301 favoring uniform federal-law 
interpretation of collective-bargaining agreements and favoring 
arbitration as a predicate to adjudication.\1096\

        \1095\See the analysis in Lingle v. Norge Div. of Magic Chef, 
Inc., 486 U.S. 399 (1988) (state tort action for retaliatory discharge 
for exercising rights under a state workers' compensation law is not 
preempted by Sec. 301, there being no required interpretation of a 
collective-bargaining agreement).
        \1096\Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). See 
also Intl. Brotherhood of Electric Workers v. Hechler, 481 U.S. 851 
(1987) (state-law claim that union breached duty to furnish employee a 
reasonably safe workplace preempted); United Steelworkers of America v. 
Rawson, 495 U.S. 362 (1990) (state-law claim that union was negligent in 
inspecting a mine, the duty to inspect being created by the collective-
bargaining agreement preempted).

        Finally, the Court has indicated that with regard to some 
situations, Congress has intended to leave the parties to a labor 
dispute free to engage in ``self-help,'' so that conduct not subject to 
federal law is nonetheless withdrawn from state control.\1097\ However, 
the NLRA is concerned primarily ``with establishing an equitable process 
for determining terms and conditions of employment, and not with 
particular substantive terms of the bargain that is struck when the 
parties are negotiating from relatively equal positions,'' so States are 
free to impose minimum labor standards.\1098\

        \1097\Brotherhood of Railroad Trainmen v. Jacksonville Terminal 
Co., 394 U.S. 369 (1969); Machinists & Aerospace Workers v. WERC, 427 
U.S. 132 (1976); Golden Gate Transit Corp. v. City of Los Angeles, 475 
U.S. 608 (1986). And, cf New York Telephone Co. v. New York State Dept. 
of Labor, 440 U.S. 519 (1979).
        \1098\Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 
(1985) (upholding a state requirement that health-care plans, including 
those resulting from collective bargaining, provide minimum benefits for 
mental-health care).

                       COMMERCE WITH INDIAN TRIBES

        Congress' power to regulate commerce ``with the Indian tribes,'' 
once almost rendered superfluous by Court decision,\1099\ has now

[[Page 261]]
been resurrected and made largely the basis for informing judicial 
judgment with respect to controversies concerning the rights and 
obligations of Native Americans. Although Congress in 1871 forbade the 
further making of treaties with Indian tribes,\1100\ cases disputing the 
application of the old treaties and especially their effects upon 
attempted state taxation and regulation of on-reservation activities 
continue to be a staple of the Court's docket.\1101\ But this clause is 
one of the two bases now found sufficient to empower Federal Government 
authority over Native Americans. ``The source of federal authority over 
Indian matters has been the subject of some confusion, but it is now 
generally recognized that the power derives from federal responsibility 
for regulating commerce with Indian tribes and for treaty 
making.''\1102\ Forsaking reliance upon other theories and rationales, 
the Court has established the preemption doctrine as the analytical 
framework within which to judge the permissibility of assertions of 
state jurisdiction over the Indians. However, the ``semi-autonomous 
status'' of Indian tribes erects an ``independent but related'' barrier 
to the exercise of state authority over commercial activity on an Indian 
reservation.\1103\ Thus, the question of preemption is not governed by 
the standards of preemption developed in other areas. ``Instead, the 
traditional notions of tribal sovereignty, and the recognition and 
encouragement of this sovereignty in congressional Acts, inform the pre-
emption analysis that governs this inquiry. . . . As a result, 
ambiguities in federal law should be construed generously, and federal 
pre-emption is not limited to those situations where Congress has 
explicitly announced an intention to pre-empt state activity.''\1104\ A

[[Page 262]]
corollary is that the preemption doctrine will not be applied strictly 
to prevent States from aiding Native Americans.\1105\ However, the 
protective rule is inapplicable to state regulation of liquor 
transactions, since there has been no tradition of tribal sovereignty 
with respect to that subject.\1106\

        \1099\United States v. Kagama, 118 U.S. 375 (1886). Rejecting 
the commerce clause as a basis for congressional enactment of a system 
of criminal laws for Indians living on reservations, the Court 
nevertheless sustained the act on the ground that the Federal Government 
had the obligation and thus the power to protect a weak and dependent 
people. Cf. United States v. Holiday, 3 Wall. (70 U.S.) 407 (1866); 
United States v. Sandoval, 231 U.S. 28 (1913). This special fiduciary 
responsibility can also be created by statute. E.g., United States v. 
Mitchell, 463 U.S. 206 (1983).
        \1100\16 Stat. 544, 566, 25 U.S.C. Sec. 71.
        \1101\E.g., Puyallup Tribe v. Washington Game Dept., 433 U.S. 
165 (1977); Washington v. Washington State Commercial Passenger Fishing 
Vessel Assn., 443 U.S. 658 (1979); Montana v. United States, 450 U.S. 
544 (1981).
        \1102\McClanahan v. Arizona Tax Comm., 411 U.S. 164, 172 n. 7 
(1973). See also Morton v. Mancari, 417 U.S. 535, 551-553 (1974); United 
States v. Mazurie, 419 U.S. 544, 553-556 (1974); Bryan v. Itasca County, 
426 U.S. 373, 376 n. 2 (1976); White Mountain Apache Tribe v. Bracker, 
448 U.S. 136, 142 (1980); Ramah Navajo School Board v. Bureau of Revenue 
of New Mexico, 458 U.S. 832, 837 (1982).
        \1103\White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-
143 (1980); Ramah Navajo School Board v. Bureau of Revenue of New 
Mexico, 458 U.S. 832, 837-838 (1982). ``The two barriers are independent 
because either, standing alone, can be a sufficient basis for holding 
state law inapplicable to activity undertaken on the reservation or by 
tribal members.'' Id., 837 (quoting White Mountain, supra, 143).
        \1104\Ramah Navajo School Board v. Bureau of Revenue of New 
Mexico, 458 U.S. 832, 838 (1982). See also New Mexico v. Mescalero 
Apache Tribe, 462 U.S. 324 (1983).
        \1105\Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 
(1984) (upholding state-court jurisdiction to hear claims of Native 
Americans against non-Indians involving transactions that occurred in 
Indian country). However, attempts by States to retrocede jurisdiction 
favorable to Native Americans may be held to be preempted. Three 
Affiliated Tribes v. Wold Engineering, 476 U.S. 877 (1986).
        \1106\Rice v. Rehner, 463 U.S. 713 (1983).

        The scope of state taxing powers--the conflict of ``the plenary 
power of the States over residents within their borders with the semi-
autonomous status of Indians living on tribal reservations''\1107\--has 
been often litigated. Absent cession of jurisdiction or other 
congressional consent, States possess no power to tax Indian reservation 
lands or Indian income from activities carried on within the boundaries 
of the reservation.\1108\ Off-reservation Indian activities require an 
express federal exemption to deny state taxing power.\1109\ Subjection 
to taxation of non-Indians doing business with Indians on the 
reservation involves a close analysis of the federal statutory 
framework, although the operating premise was for many years to deny 
state power because of its burdens upon the development of tribal self-
sufficiency as promoted through federal law and its interference with 
the tribes' ability to exercise their sovereign functions.\1110\

        \1107\McClanahan v. Arizona Tax Comm., 411 U.S. 164, 165 (1973).
        \1108\Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); 
McClanahan v. Arizona Tax Comm., 411 U.S. 164 (1973); Moe v. 
Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); Bryan v. 
Itasca County, 426 U.S. 373 (1976); Washington v. Confederated Colville 
Tribes, 447 U.S. 134 (1980); Montana v. Blackfeet Tribe, 471 U.S. 759 
(1985). See also Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian 
Tribe, 498 U.S. 505 (1991). A discernable easing of the reluctance to 
find congressional cession is reflected in more recent cases. See County 
of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 
112 S.Ct. 683 (1992).
        \1109\Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149 
        \1110\White Mountain Apache Tribe v. Bracker, 448 U.S. 136 
(1980); Central Machinery Co. v. Arizona Tax Comm., 448 U.S. 160 (1980); 
Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 
832 (1982).

        That operating premise, however, seems to have been eroded. For 
example, in Cotton Petroleum Corp. v. New Mexico,\1111\ the Court held 
that, in spite of the existence of multiple taxation occasioned by a 
state oil and gas severance tax applied to on-reservation operations by 
non-Indians, which was already taxed by the tribe,\1112\ the impairment 
of tribal sovereignty was ``too indirect and too insubstantial'' to 
warrant a finding of preemption. The fact that the State provided 
significant services to the oil and gas les

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sees justified state taxation and also distinguished earlier cases in 
which the State had ``asserted no legitimate regulatory interest that 
might justify the tax.''\1113\ Still further erosion, or relaxation, of 
the principle of construction may be found in a later case, in which the 
Court, confronted with arguments that the imposition of particular state 
taxes on Indian property on the reservation was inconsistent with self-
determination and self-governance, denominated these as ``policy'' 
arguments properly presented to Congress rather than the Court.\1114\

        \1111\490 U.S. 163 (1989).
        \1112\Held permissible in Merrion v. Jicarilla Apache Tribe, 455 
U.S. 130 (1982).
        \1113\Id., 490 U.S., 185 (distinguishing Bracker and Ramah 
Navaho School Bd).
        \1114\County of Yakima v. Confederated Tribes & Bands of the 
Yakima Indian Nation, 112 S.Ct. 683, 692 (1992). To be sure, this 
response was in the context of the reading of statutory texts and giving 
effect to them, but the unqualified designation is suggestive.

        The impact on tribal sovereignty is also a prime determinant of 
relative state and tribal regulatory authority.\1115\

        \1115\E.g., New Mexico v. Mescalero Tribe, 462 U.S. 324 (1983).

        Since Worcester v. Georgia,\1116\ it has been recognized that 
Indian tribes are unique aggregations possessing attributes of 
sovereignty over both their members and their territory.\1117\ They are, 
of course, no longer possessed of the full attributes of 
sovereignty,\1118\ having relinquished some part of it by their 
incorporation within the territory of the United States and their 
acceptance of its protection. By specific treaty provision, they yielded 
up other sovereign powers, and Congress has removed still others. ``The 
sovereignty that the Indian tribes retain is of a unique and

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limited character. It exists only at the sufferance of Congress and is 
subject to complete defeasance.''\1119\

        \1116\6 Pet. (31 U.S.) 515 (1832). See also Cherokee Nation v. 
Georgia, 5 Pet. (30 U.S.) 1 (1831). Under this doctrine, tribes possess 
sovereign immunity from suit in the same way as the United States and 
the States do. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); 
United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 
512-513 (1940). The Court has repeatedly rejected arguments to abolish 
tribal sovereign immunity or at least to curtail it. Oklahoma Tax Comm. 
v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 510 (1991).
        \1117\United States v. Wheeler, 435 U.S. 313 (1978) (inherent 
sovereign power to punish tribal offenders). But tribes possess no 
criminal authority over non-Indians. Oliphant v. Suquamish Indian Tribe, 
435 U.S. 191 (1978). And see Duro v. Reina, 495 U.S. 676 (1990) (tribe 
has no criminal jurisdiction over non-tribal Indians who commit crimes 
on the reservation; jurisdiction over members rests on consent of the 
self-governed, and absence of consent defeats jurisdiction). Compare 
California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) 
(state regulation of on-reservation bingo is preempted as basically 
civil/regulatory rather than criminal/prohibitory), with Brendale v. 
Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 
(1989) (extensive ownership of land within ``open areas'' of reservation 
by non-members of tribe precludes application of tribal zoning within 
such areas). Among the fundamental attributes of sovereignty which a 
tribe possesses unless divested of it by federal law is the power to tax 
non-Indians entering the reservation to engage in economic activities. 
Washington v. Confederated Colville Tribes, 447 U.S. 134 (1980); Merrion 
v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).
        \1118\United States v. Kagama, 118 U.S. 375, 381 (1886); United 
States v. Wheeler, 435 U.S. 313, 323 (1978).
        \1119\United States v. Wheeler, 435 U.S. 313, 323 (1978).

        In a case of major import for the settlement of Indian land 
claims, the Court ruled in County of Oneida v. Oneida Indian 
Nation,\1120\that an Indian tribe may obtain damages for wrongful 
possession of land conveyed in 1795 without the federal approval 
required by the Nonintercourse Act.\1121\The Act reflected the accepted 
principle that extinguishment of the title to land by Native Americans 
required the consent of the United States and left intact a tribe's 
common-law remedies to protect possessory rights. The Court reiterated 
the accepted rule that enactments are construed liberally in favor of 
Native Americans and that Congress may abrogate Indian treaty rights or 
extinguish aboriginal land title only if it does so clearly and 
unambiguously. Consequently, federal approval of land-conveyance 
treaties containing references to earlier conveyances that had violated 
the Nonintercourse Act did not constitute ratification of the invalid 
conveyances.\1122\Similarly, the Court refused to apply the general rule 
for borrowing a state statute of limitations for the federal common-law 
action, and it rejected the dissent's view that, given ``the 
extraordinary passage of time,'' the doctrine of laches should have been 
applied to bar the claim.\1123\

        \1120\470 U.S. 226 (1985).
        \1121\1 Stat. 379 (1793).
        \1122\Id., 470 U.S., 246-248.
        \1123\Id., 255, 257 (Justice Stevens).

        While the power of Congress over Indian affairs is broad, it is 
not limitless.\1124\ The Court has promulgated a standard of review that 
defers to the legislative judgment ``[a]s long as the special treatment 
can be tied rationally to the fulfillment of Congress' unique obligation 
toward the Indians . . . ``\1125\ A more searching review is warranted 
when it is alleged that the Federal Government's behavior toward the 
Indians has been in contravention of its obligation and that it has in 
fact taken property from a tribe which it had heretofore guaranteed to 
the tribe, without either com

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pensating the tribe or otherwise giving the Indians the full value of 
the land.\1126\

        \1124\``The power of Congress over Indian affairs may be of a 
plenary nature; but it is not absolute.'' United States v. Alcea Bank of 
Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion) (quoted with 
approval in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84 
        \1125\Morton v. Mancari, 417 U.S. 535, 555 (1974). The Court 
applied the standard to uphold a statutory classification that favored 
Indians over non-Indians. But in Delaware Tribal Business Comm. v. 
Weeks, 430 U.S. 73 (1977), the same standard was used to sustain a 
classification that disfavored, although inadvertently, one group of 
Indians as against other groups. While Indian tribes are unconstrained 
by federal or state constitutional provisions, Congress has legislated a 
``bill of rights'' statute covering them. See Santa Clara Pueblo v. 
Martinez, 436 U.S. 49 (1978).
        \1126\United States v. Sioux Nation, 448 U.S. 371 (1980). See 
also Solem v. Bartlett, 465 U.S. 463, 472 (1984) (there must be 
``substantial and compelling evidence of congressional intention to 
diminish Indian lands'' before the Court will hold that a statute 
removed land from a reservation).

  Clause 4. The Congress shall have Power * * * To establish an uniform 
Rule of Naturalization, and uniform Laws on the subject of Bankruptcies 
throughout the United States.


      Nature and Scope of Congress' Power

        Naturalization has been defined by the Supreme Court as ``the 
act of adopting a foreigner, and clothing him with the privileges of a 
native citizen.''\1127\ In the Dred Scott case,\1128\ the Court asserted 
that the power of Congress under this clause applies only to ``persons 
born in a foreign country, under a foreign government.''\1129\ These 
dicta are much too narrow to describe the power that Congress has 
actually exercised on the subject. The competence of Congress in this 
field merges, in fact, with its indefinite, inherent powers in the field 
of foreign relations. ``As a government, the United States is invested 
with all the attributes of sovereignty. As it has the character of 
nationality it has the powers of nationality, especially those which 
concern its relations and intercourse with other countries.''\1130\

        \1127\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892).
        \1128\Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).
        \1129\Id., 417, 419.
        \1130\Mackenzie v. Hare, 239 U.S. 299, 311 (1915).

        Congress' power over naturalization is an exclusive power; no 
State has the power to constitute a foreign subject a citizen of the 
United States.\1131\ But power to naturalize aliens may be, and was 
early, devolved by Congress upon state courts of record.\1132\ And 
States may confer the right of suffrage upon resident aliens who have 
declared their intention to become citizens and many did so until 

        \1131\Chirac v. Chirac, 2 Wheat. (15 U.S.) 259, 269 (1817); 
United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898).
        \1132\The first naturalization act, 1 Stat. 103 (1790), so 
provided. See 8 U.S.C. Sec. 1421. In Holmgren v. United States, 217 U.S. 
509 (1910), it was held that Congress may provide for the punishment of 
false swearing in the proceedings in state courts.
        \1133\Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. 
Foster, 2 Binn. (Pa.) 110 (1809). See K. Porter, A History of Suffrage 
in the United States (New York: 1918), ch. 5.


[[Page 266]]

        Citizenship by naturalization is a privilege to be given, 
qualified, or withheld as Congress may determine, an individual may 
claim it as a right only upon compliance with the terms Congress 
imposes.\1134\ This interpretation makes of the naturalization power the 
only power granted in Sec. 8 of Article I that is unrestrained by 
constitutional limitations on its exercise. Thus, the first 
naturalization act enacted by the first Congress restricted 
naturalization to ``free white persons[s],''\1135\ which was expanded in 
1870 so that persons of ``African nativity and . . . descent'' were 
entitled to be naturalized.\1136\ Orientals were specifically excluded 
from eligibility in 1882,\1137\ and the courts enforced these provisions 
without any indication that constitutional issues were thereby 
raised.\1138\ These exclusions are no longer law. Present naturalization 
statutes continue and expand on provisions designed to bar subversives, 
dissidents, and radicals generally from citizenship.\1139\

        \1134\United States v. Macintosh, 283 U.S. 605, 615 (1931); Fong 
Yue Ting v. United States, 149 U.S. 698, 707-708 (1893). A caveat to 
this statement is that with regard to persons naturalized in the United 
States the qualification may only be a condition precedent and not a 
condition subsequent, Schneider v. Rusk, 377 U.S. 163 (1964), whereas 
persons born abroad who are made citizens at birth by statute if one or 
both of their parents are citizens are subject to conditions subsequent. 
Rogers v. Bellei, 401 U.S. 815 (1971).
        \1135\1 Stat. 103 (1790).
        \1136\Act of July 14, 1870, Sec. 7, 16 Stat. 254, 256.
        \1137\Act of May 6, 1882, Sec. 1, 22 Stat. 58.
        \1138\Cf. Ozawa v. United States, 260 U.S. 178 (1922); United 
States v. Bhagat Singh Thind, 261 U.S. 204 (1923); Toyota v. United 
States, 268 U.S. 402 (1925); Morrison v. California, 291 U.S. 82 (1934). 
The Court refused to review the only case in which the constitutional 
issue was raised and rejected. Kharaiti Ram Samras v. United States, 125 
F. 2d 879 (9th Cir., 1942), cert. den., 317 U.S. 634 (1942).
        \1139\The Alien and Sedition Act of 1798, 1 Stat. 570, empowered 
the President to deport any alien he found dangerous to the peace and 
safety of the Nation. In 1903, Congress provided for denial of 
naturalization and for deportation for mere belief in certain doctrines, 
i.e., anarchy. Act of March 3, 1903, 32 Stat. 1214. See United States ex 
rel. Turner v. Williams, 194 U.S. 279 (1904). The range of forbidden 
views was broadened in 1918. Act of October 15, 1918, Sec. 1, 40 Stat. 
1012. The present law is found in 8 U.S.C. Sec. 1424 and is discussed 
infra, pp.268-270.

        Although the usual form of naturalization is through individual 
application and official response on the basis of general congressional 
rules, naturalization is not so limited. Citizenship can be conferred by 
special act of Congress,\1140\ it can be conferred collectively either 
through congressional action, such as the naturalization of all 
residents of an annexed territory or of a territory made a State,\1141\ 
or through treaty provision.\1142\

        \1140\E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an 
``honorary citizen of the United States.'').
        \1141\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); 
Contzen v. United States, 179 U.S. 191 (1900).
        \1142\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168-
169 (1892).


[[Page 267]]
      Categories of Citizens: Birth and Naturalization

        The first sentence of Sec. 1 of the Fourteenth Amendment 
contemplates two sources of citizenship and two only: birth and 
naturalization.\1143\ This contemplation is given statutory expression 
in Sec. 301 of the Immigration and Nationality Act of 1952,\1144\ which 
itemizes those categories of persons who are citizens of the United 
States at birth; all other persons in order to become citizens must pass 
through the naturalization process. The first category merely tracks the 
language of the first sentence of Sec. 1 of the Fourteenth Amendment in 
declaring that all persons born in the United States and subject to the 
jurisdiction thereof are citizens by birth.\1145\ But there are six 
other categories of citizens by birth. They are: (2) a person born in 
the United States to a member of an Indian, Eskimo, Aleutian, or other 
aboriginal tribe, (3) a person born outside the United States of citizen 
parents one of whom has been resident in the United States, (4) a person 
born outside the United States of one citizen parent who has been 
continuously resident in the United States for one year prior to the 
birth and of a parent who is a national but not a citizen, (5) a person 
born in an outlying possession of the United States of one citizen 
parent who has been continuously resident in the United States or an 
outlying possession for one year prior to the birth, (6) a person of 
unknown parentage found in the United States while under the age of five 
unless prior to his twenty-first birthday he is shown not to have been 
born in the United States, and (7) a person born outside the United 
States of an alien parent and a citizen parent who has been resident in 
the United States for a period of ten years, provided the person is to 
lose his citizenship unless he resides continuously in the United States 
for a period of five years between his fourteenth and twenty-eighth 

        \1143\United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).
        \1144\66 Stat. 235, 8 U.S.C. Sec. 1401.
        \1145\Sec. 301(a)(1), 8 U.S.C. Sec. 1401(a)(1).

        Subsection (7) citizens must satisfy the condition subsequent of 
five years continuous residence within the United States between the 
ages of fourteen and twenty-eight, a requirement held to be 
constitutional,\1146\ which means in effect that for constitutional 
purposes, according to the prevailing interpretation, there is a 
difference between persons born or naturalized in, that is, within, the 
United States and persons born outside the confines of the United States 
who are statutorily made citizens.\1147\ The principal dif

[[Page 268]]
ference is that the former persons may not be involuntarily expatriated 
whereas the latter may be, subject only to due process 

        \1146\Rogers v. Bellei, 401 U.S. 815 (1971).
        \1147\Compare Schneider v. Rusk, 377 U.S. 163 (1964); Afroyim v. 
Rusk, 387 U.S. 253 (1967). It will be noted that in practically all 
cases persons statutorily made citizens at birth will be dual nationals, 
having the citizenship of the country where they were born. Congress has 
never required a citizen having dual nationality to elect at some point 
one and forsake the other but it has enacted several restrictive 
statutes limiting the actions of dual nationals which have occasioned 
much litigation. E.g., Savorgnan v. United States, 338 U.S. 491 (1950); 
Kawakita v. United States, 343 U.S. 717 (1952); Kennedy v. Mendoza-
Martinez, 372 U.S. 144 (1963); Schneider v. Rusk, 377 U.S. 163 (1964); 
Rogers v. Bellei, 401 U.S. 815 (1971).
        \1148\Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. 
Mendoza-Martinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 
58-62 (1958).
      The Naturalization of Aliens

        Although, as has been noted, throughout most of our history 
there were significant racial and ethnic limitations upon eligibility 
for naturalization, the present law prohibits any such discrimination.

        ``The right of a person to become a naturalized citizen of the 
United States shall not be denied or abridged because of race or sex or 
because such person is married.''\1149\ However, any person ``who 
advocates or teaches, or who is a member of or affiliated with any 
organization that advocates or teaches . . . opposition to all organized 
government, or ``who advocates or teaches or who is a member of or 
affiliated with any organization that advocates or teaches the overthrow 
by force or violence or other unconstitutional means of the Government 
of the United States'' or who is a member of or affiliated with the 
Communist Party, or other communist organizations, or other totalitarian 
organizations is ineligible.\1150\ These provisions moreover are 
``applicable to any applicant for naturalization who at any time within 
a period of ten years immediately preceding the filing of the petition 
for naturalization or after such filing and before taking the final oath 
of citizenship is, or has been found to be, within any of the classes 
enumerated within this section, notwithstanding that at the time the 
petition is filed he may not be included within such classes.''\1151\

        \1149\Sec. 311, 66 Stat. 239 (1952), 8 U.S.C. Sec. 1422.
        \1150\Sec. 313(a), 66 Stat. 240 (1952), 8 U.S.C. Sec. 1424(a). 
Whether ``mere'' membership is sufficient to constitute grounds for 
ineligibility is unclear. Compare Galvan v. Press, 347 U.S. 522 (1954), 
with Berenyi v. Immigration Director, 385 U.S. 630 (1967).
        \1151\Sec. 313(c), 66 Stat. 241 (1952), 8 U.S.C. Sec. 1424(c).

        Other limitations on eligibility are also imposed. Eligibility 
may turn upon the decision of the responsible officials whether the 
petitioner is of ``good moral character.''\1152\ The immigration and 
nationality laws themselves include a number of specific congressional 
determinations that certain persons do not possess ``good

[[Page 269]]
moral character,'' including persons who are ``habitual 
drunkards,''\1153\ adulterers,\1154\ polygamists or advocates of 
polygamy,\1155\ gamblers,\1156\ convicted felons,\1157\ and 
homosexuals.\1158\ In order to petition for naturalization, an alien 
must have been resident for at least five years and to have possessed 
``good moral character'' for all of that period.

        \1152\Sec. 316(a)(3), 66 Stat. 242, 8 U.S.C. Sec. 1427(a)(3).
        \1153\Sec. 101(f)(1), 66 Stat. 172, 8 U.S.C. Sec. 1101(f)(1).
        \1154\Sec. 101(f)(2), 66 Stat. 172, 8 U.S.C. Sec. 1101(f)(2).
        \1155\Sec. 212(a)(11), 66 Stat. 182, 8 U.S.C. Sec. 1182(a)(11).
        \1156\Sec. 101(f) (4) and (5), 66 Stat. 172, 8 U.S.C. 
Sec. 1101(f) (4) and (5).
        \1157\Sec. 101(f) (7) and (8), 66 Stat. 172, 8 U.S.C. 
Sec. 1101(f) (7) and (8).
        \1158\Sec. 212(a)(4), 66 Stat. 182, 8 U.S.C. Sec. 1182(a)(4), 
barring aliens afflicted with ``psychopathic personality,'' a 
congressional euphemism including homosexuality. Boutilier v. 
Immigration and Naturalization Service, 387 U.S. 118 (1967).

        The process of naturalization culminates in the taking in open 
court of an oath ``(1) to support the Constitution of the United States; 
(2) to renounce and abjure absolutely and entirely all allegiance and 
fidelity to any foreign prince, potentate, state, or sovereignty of whom 
or which the petitioner was before a subject or citizen; (3) to support 
and defend the Constitution and the laws of the United States against 
all enemies, foreign and domestic; (4) to bear true faith and allegiance 
to the same; and (5)(A) to bear arms on behalf of the United States when 
required by the law, or (B) to perform noncombatant service in the Armed 
Forces of the United States when required by the law, or (C) to perform 
work of national importance under civilian direction when required by 

        \1159\Sec. 337(a), 66 Stat. 258 (1952), 8 U.S.C. Sec. 1448(a). 
In United States v. Schwimmer, 279 U.S. 644 (1929), and United States v. 
Macintosh, 283 U.S. 605 (1931), a divided Court held that clauses (3) 
and (4) of the oath, as then prescribed, required the candidate for 
naturalization to be willing to bear arms for the United States, thus 
disqualifying conscientious objectors. These cases were overturned, 
purely as a matter of statutory interpretation by Girouard v. United 
States, 328 U.S. 61 (1946), and Congress codified the result, 64 Stat. 
1017 (1950), as it now appears in the cited statute.

        Any naturalized person who takes this oath with mental 
reservations or conceals or misrepresents beliefs, affiliations, and 
conduct, which under the law disqualify one for naturalization, is 
subject, upon these facts being shown in a proceeding brought for the 
purpose, to have his certificate of naturalization cancelled.\1160\ 
Moreover, if within a year of his naturalization a person joins an 
organization or becomes in any way affiliated with one which was

[[Page 270]]
a disqualification for naturalization if he had been a member at the 
time, the fact is made prima facie evidence of his bad faith in taking 
the oath and grounds for instituting proceedings to revoke his admission 
to citizenship.\1161\

        \1160\Sec. 340(a), 66 Stat. 260 (1952), 8 U.S.C. Sec. 1451(a). 
See Kungys v. United States, 485 U.S. 759 (1988) (badly fractured Court 
opinion dealing with the statutory requirements in a denaturalization 
proceeding under this section). And see Johannessen v. United States, 
225 U.S. 227 (1912). Congress has imposed no time bar applicable to 
proceedings to revoke citizenship, so that many years after 
naturalization has taken place a naturalized citizen remains subject to 
divestment upon proof of fraud. Costello v. United States, 365 U.S. 265 
(1961); Polites v. United States, 364 U.S. 426 (1960); Knauer v. United 
States, 328 U.S. 654 (1946); Fedorenko v. United States, 449 U. S. 490 
        \1161\340(c), 66 Stat. 261 (1952), 8 U.S.C. Sec. 1451(c). The 
time period had previously been five years.
      Rights of Naturalized Persons

        Chief Justice Marshall early stated in dictum that ``[a] 
naturalized citizen . . . becomes a member of the society, possessing 
all the rights of a native citizen, and standing, in the view of the 
Constitution, on the footing of a native. The Constitution does not 
authorize Congress to enlarge or abridge those rights. The simple power 
of the national legislature is, to prescribe a uniform rule of 
naturalization, and the exercise of this power exhausts it, so far as 
respects the individual.''\1162\ A similar idea was expressed in Knauer 
v. United States.\1163\ ``Citizenship obtained through naturalization is 
not a second-class citizenship. . . . [It] carries with it the privilege 
of full participation in the affairs of our society, including the right 
to speak freely, to criticize officials and administrators, and to 
promote changes in our laws including the very Charter of our 

        \1162\Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 
737, 827 (1824). One must be aware, however, that this language does not 
appear in any case having to do with citizenship or naturalization or 
the rights of naturalized citizens and its force may be therefore 
questioned. Compare Afroyim v. Rusk, 387 U.S. 253, 261 (1967) (Justice 
Black for the Court: ``a mature and well-considered dictum . . .''), 
with id., 275-276 (Justice Harlan dissenting: the dictum, ``cannot have 
been intended to reach the question of citizenship.''). The issue in 
Osborn was the right of the Bank to sue in federal court. Osborn had 
argued that the fact that the bank was chartered under the laws of the 
United States did not make any legal issue involving the bank one 
arising under the laws of the United States for jurisdictional purposes; 
to argue the contrary, Osborn contended, was like suggesting that the 
fact that persons were naturalized under the laws of Congress meant such 
persons had an automatic right to sue in federal courts, unlike natural-
born citizens. The quoted language of Marshall's rejects this attempted 
        \1163\328 U.S. 654, 658 (1946).

        Despite these dicta, it is clear that particularly in the past 
but currently as well a naturalized citizen has been and is subject to 
requirements not imposed on native-born citizens. Thus, as we have noted 
above, a naturalized citizen is subject at any time to have his good 
faith in taking the oath of allegiance to the United States inquired 
into and to lose his citizenship if lack of such faith is shown in 
proper proceedings.\1164\ And the naturalized citizen within a year of 
his naturalization will join a questionable organi

[[Page 271]]
zation at his peril.\1165\ In Luria v. United States,\1166\ the Court 
sustained a statute making prima facie evidence of bad faith a 
naturalized citizen's assumption of residence in a foreign country 
within five years after the issuance of a certificate of 
naturalization.But in Schneider v. Rusk,\1167\ the Court voided a 
statute that provided that a naturalized citizen should lose his United 
States citizenship if following naturalization he resided continuously 
for three years in his former homeland. ``We start,'' Justice Douglas 
wrote for the Court, ``from the premise that the rights of citizenship 
of the native-born and of the naturalized person are of the same dignity 
and are coextensive. The only difference drawn by the Constitution is 
that only the `natural born' citizen is eligible to be 
President.''\1168\ The failure of the statute, the Court held, was that 
it impermissibly distinguished between native-born and naturalized 
citizens, denying the latter the equal protection of the laws.\1169\ 
``This statute proceeds on the impermissible assumption that naturalized 
citizens as a class are less reliable and bear less allegiance to this 
country than do the native-born. This is an assumption that is 
impossible for us to make. . . . A native-born citizen is free to reside 
abroad indefinitely without suffering loss of citizenship. The 
discrimination aimed at naturalized citizens drastically limits their 
rights to live and work abroad in a way that other citizens may. It 
creates indeed a second-class citizenship. Living abroad, whether the 
citizen be naturalized or native-born, is no badge of lack of allegiance 
and in no way evidences a voluntary renunciation of nationality and 

        \1164\Johannessen v. United States, 225 U.S. 227 (1912); Knauer 
v. United States, 328 U.S. 654 (1946); Costello v. United States, 365 
U.S. 265 (1961).
        \1165\See 8 U.S.C. Sec. 1451(c).
        \1166\231 U.S. 9 (1913). The provision has been modified to 
reduce the period to one year. 8 U.S.C. Sec. 1451(d).
        \1167\377 U.S. 163 (1964).
        \1168\Id., 165.
        \1169\While there is no equal protection clause specifically 
applicable to the Federal Government, it is established that the due 
process clause of the fifth Amendment forbids discrimination in much the 
same manner as the equal protection clause of the Fourteenth Amendment.
        \1170\Schneider v. Rusk, 377 U.S. 163, 168-169 (1964).

        The Schneider equal protection rationale was abandoned in the 
next case in which the Court held that the Fourteenth Amendment forbade 
involuntary expatriation of naturalized persons.\1171\ But in Rogers v. 
Bellei,\1172\ the Court refused to extend this holding to persons 
statutorily naturalized at birth abroad because one of their parents was 
a citizen and similarly refused to apply Schneider. Thus, one who failed 
to honor a condition subsequent had his citizenship revoked. ``Neither 
are we persuaded that a condition subse

[[Page 272]]
quent in this area impresses one with `second-class citizenship.' That 
cliche is too handy and too easy, and, like most cliches, can be 
misleading. That the condition subsequent may be beneficial is apparent 
in the light of the conceded fact that citizenship was fully deniable. 
The proper emphasis is on what the statute permits him to gain from the 
possible starting point of noncitizenship, not on what he claims to lose 
from the possible starting point of full citizenship to which he has no 
constitutional right in the first place. His citizenship, while it 
lasts, although conditional, is not `second-class.'''\1173\

        \1171\Afroyim v. Rusk, 387 U.S. 253 (1967).
        \1172\401 U.S. 815 (1971).
        \1173\Id., 835-836.

        It is not clear where the progression of cases has left us in 
this area. Clearly, naturalized citizens are fully entitled to all the 
rights and privileges of those who are citizens because of their birth 
here. But it seems equally clear that with regard to retention of 
citizenship, naturalized citizens are not in the secure position of 
citizens born here.\1174\

        \1174\At least, there is a difference so long as Afroyim 
prevents Congress from making expatriation the consequence of certain 
acts when done by natural born citizens as well.

        On another point, the Court has held that, absent a treaty or 
statute to the contrary, a child born in the United States who is taken 
during minority to the country of his parents' origin, where his parents 
resume their former allegiance, does not thereby lose his American 
citizenship and that it is not necessary for him to make an election and 
return to the United States.\1175\ On still another point, it has been 
held that naturalization is so far retroactive as to validate an 
acquisition of land prior to naturalization as to which the alien was 
under a disability.\1176\

        \1175\Perkins v. Elg, 307 U.S. 325 (1939). The qualifying phrase 
``absent a treaty or statute . . .'' is error now, so long as Afroyim 
remains in effect. But note Rogers v. Bellei, 401 U.S. 815, 832-833 
        \1176\Governeur v. Robertson, 11 Wheat. (24 U.S.) 332 (1826); 
Osterman v. Baldwin, 6 Wall. (73 U.S.) 116 (1867); Manuel v. Wulff, 152 
U.S. 505 (1894).
      Expatriation: Loss of Citizenship

        The history of the right of expatriation, voluntarily on the 
part of the citizen or involuntarily under duress of statute, is shadowy 
in United States constitutional law. Justice Story, in the course of an 
opinion,\1177\ and Chancellor Kent, in his writings,\1178\ accepted the 
ancient English doctrine of perpetual and unchangeable allegiance to the 
government of one's birth, a citizen being precluded from renouncing his 
allegiance without permission of that government. The pre-Civil War 
record on the issue is so vague because

[[Page 273]]
there was wide disagreement on the basis of national citizenship in the 
first place, with some contending that national citizenship was 
derivative from state citizenship, which would place the power of 
providing for expatriation in the state legislatures, and with others 
contending for the primacy of national citizenship, which would place 
the power in Congress.\1179\ The citizenship basis was settled by the 
first sentence of Sec. 1 of the Fourteenth Amendment, but expatriation 
continued to be a muddled topic. An 1868 statute specifically recognized 
``the right of expatriation'' by individuals, but it was directed to 
affirming the right of foreign nationals to expatriate themselves and to 
become naturalized United States citizens.\1180\ An 1865 law provided 
for the forfeiture of the ``rights of citizenship'' of draft-dodgers and 
deserters, but whether the statute meant to deprive such persons of 
citizenship or of their civil rights is unclear.\1181\

        \1177\Shanks v. DuPont, 3 Pet. (28 U.S.) 242, 246 (1830).
        \1178\2 J. Kent, Commentaries (New York: 1827), 49-50.
        \1179\J. Tenbroek, Anti-Slavery Origins of the Fourteenth 
Amendment (New York: 1951), 71-94; see generally J. Roche, The Early 
Development of United States Citizenship (New York: 1949).
        \1180\Act of July 27, 1868, 15 Stat. 223. While the Act's 
preamble rhetorically proclaims the ``natural and inherent right of all 
people'' to expatriate themselves, its title is ``An Act concerning the 
Rights of American Citizens in foreign States'' and its operative parts 
are concerned with that subject. It has long been taken, however, as a 
general proclamation of United States recognition of the right of United 
States citizens to expatriate themselves. Mackenzie v. Hare, 239 U.S. 
299, 309 (1915); Mandoli v. Acheson, 344 U.S. 133, 135-136 (1952). Cf. 
Savorgnan v. United States, 338 U.S. 491, 498 n. 11 (1950).
        \1181\The Enrollment Act of March 3, 1865, Sec. 21, 13 Stat. 
487, 490. The language of the section appears more consistent with a 
deprivation of civil rights than of citizenship. Note also that Sec. 14 
of the Wade-Davis Bill, pocket-vetoed by President Lincoln, specifically 
provided that any person holding office in the Confederate Government 
``is hereby declared not to be a citizen of the United States.'' 6 J. 
Richardson, Messages and Papers of the Presidents (Washington: 1899), 

        Beginning in 1940, however, Congress did enact laws designed to 
strip of their citizenship persons who committed treason,\1182\ deserted 
the armed forces in wartime,\1183\ left the country to evade the 
draft,\1184\ or attempted to overthrow the Government by force or 
violence.\1185\ In 1907, Congress provided that female citizens who 
married foreign citizens were to have their citizenship held ``in 
abeyance'' while they remained wedded but to be entitled to reclaim it 
when the marriage was dissolved.\1186\

        \1182\Nationality Act of 1940, 54 Stat. 1169.
        \1184\58 Stat. 746 (1944).
        \1185\68 Stat. 1146 (1954).
        \1186\34 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922).

        About the simplest form of expatriation, the renunciation of 
citizenship by a person, there is no constitutional difficulty. 
``Expatriation is the voluntary renunciation or abandonment of national

[[Page 274]]
ity and allegiance.''\1187\ But while the Court has hitherto insisted on 
the voluntary character of the renunciation, it has sustained the power 
of Congress to prescribe conditions and circumstances the voluntary 
entering into of which constitutes renunciation; the person need not 
intend to renounce so long as he intended to do what he did in fact 

        \1187\Perkins v. Elg, 307 U.S. 325, 334 (1939).
        \1188\Mackenzie v. Hare, 239 U.S. 299, 309, 311-312 (1915); 
Savorgnan v. United States, 338 U.S. 491, 506 (1950).

        The Court first encountered the constitutional issue of forced 
expatriation in the rather anomalous form of the statute,\1189\ which 
placed in limbo the citizenship of any American female who married a 
foreigner. Sustaining the statute, the Court relied on the congressional 
foreign relations power exercised in order to prevent the development of 
situations that might entangle the United States in embarrassing or 
hostile relationships with a foreign country. Noting too the fictional 
merging of identity of husband and wife, the Court thought it well 
within congressional power to attach certain consequences to these 
actions, despite the woman's contrary intent and understanding at the 
time she entered the relationship.\1190\

        \1189\34 Stat. 1228 (1907).
        \1190\Mackenzie v. Hare, 239 U.S. 299 (1915).

        Beginning in 1958, the Court had a running encounter with the 
provisions of the 1952 Immigration and Nationality Act, which prescribed 
expatriation for a lengthy series of actions.\1191\ In 1958, a five-to-
four decision sustained the power to divest a dual national of his 
United States citizenship because he had voted in an election in the 
other country of which he was a citizen.\1192\ But at the same

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time, another five-to-four decision, in which a majority rationale was 
lacking, struck down punitive expatriation visited on persons convicted 
by court-martial of desertion from the armed forces in wartime.\1193\ In 
the next case, the Court struck down another punitive expatriation 
visited on persons who, in time of war or emergency, leave or remain 
outside the country in order to evade military service.\1194\ And in the 
following year, the Court held unconstitutional a section of the law 
that expatriated a naturalized citizen who returned to his native land 
and resided there continuously for a period of three years.\1195\

        \1191\See generally 8 U.S.C. Sec. Sec. 1481-1489. Among the acts 
for which loss of citizenship is prescribed are (1) obtaining 
naturalization in a foreign state, (2) taking an oath of allegiance to a 
foreign state, (3) serving in the armed forces of a foreign state 
without authorization and with consequent acquisition of foreign 
nationality, (4) assuming public office under the government of a 
foreign state for which only nationals of that state are eligible, (5) 
voting in an election in a foreign state, (6) formally renouncing 
citizenship before a United states foreign service officer abroad, (7) 
formally renewing citizenship within the United States in time of war, 
subject to approval of the Attorney General, (8) being convicted and 
discharged from the armed services for desertion in wartime, (9) being 
convicted of treason or of an attempt to overthrow forcibly the 
Government of the United States, (10) fleeing or remaining outside the 
United States in wartime or a proclaimed emergency in order to evade 
military service, and (11) residing abroad if a naturalized citizen, 
subject to certain exceptions, for three years in the country of his 
birth or in which he was formerly a national or for five years in any 
other foreign state. Several of these sections have been declared 
unconstitutional, as explained in the text.
        \1192\Perez v. Brownell, 356 U.S. 44 (1958). For the Court, 
Justice Frankfurter sustained expatriation as a necessary exercise of 
the congressional power to regulate the foreign relations of the United 
States to prevent the embarrassment and potential for trouble inherent 
in our nationals voting in foreign elections. Justice Whittaker 
dissented because he saw no problem of embarrassment or potential 
trouble if the foreign state permitted aliens or dual nationals to vote. 
Chief Justice Warren and Justices Black and Douglas denied that 
expatriation is within Congress' power to prescribe for an act, like 
voting, which is not necessarily a sign of intention to relinquish 
        \1193\Trop v. Dulles, 356 U.S. 86 (1958). Chief Justice Warren 
for himself and three Justices held that expatriation for desertion was 
a cruel and unusual punishment proscribed by the Eighth Amendment. 
Justice Brennan concurred on the ground of a lack of the requisite 
relationship between the statute and Congress' war powers. For the four 
dissenters, Justice Frankfurter argued that Congress had power to impose 
loss of citizenship for certain activity and that there was a rational 
nexus between refusal to perform a duty of citizenship and deprivation 
of citizenship. Justice Frankfurter denied that the penalty was cruel 
and unusual punishment and denied that it was punishment at all ``in any 
valid constitutional sense.'' Id., 124.
        \1194\Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). For the 
Court Justice Goldberg held that penal expatriation effectuated solely 
by administrative determination violated due process because of the 
absence of procedural safeguards. Justices Black and Douglas continued 
to insist Congress could not deprive a citizen of his nationality at 
all. Justice Harlan for the dissenters thought the statute a valid 
exercise of Congress' war powers but the four dissenters divided two-to-
two on the validity of a presumption spelled out in the statute.
        \1195\Schneider v. Rusk, 377 U.S. 163 (1964).

        The cases up to this point had lacked a common rationale and 
would have seemed to permit even punitive expatriation under the proper 
circumstances. But, in Afroyim v. Rusk,\1196\ a five-to-four majority 
overruled the 1958 decision permitting expatriation for voting in a 
foreign election and announced a constitutional rule against all but 
purely voluntary renunciation of United States citizenship. The majority 
ruled that the first sentence of Sec. 1 of the Fourteenth Amendment 
constitutionally vested citizenship in every person ``born or 
naturalized in the United States'' and that Congress was powerless to 
take that citizenship away.\1197\ The continuing vitality of this 
decision was called into question by another five-to-four decision in 
1971, which technically distinguished Afroyim in upholding a 
congressionally-prescribed loss of citizenship visited

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upon a person who was statutorily naturalized ``outside'' the United 
States, and held not within the protection of the first sentence of 
Sec. 1 of the Fourteenth Amendment.\1198\ Thus, while Afroyim was 
distinguished, the tenor of the majority opinion was hostile to its 
holding, and it may be that in a future case it will be overruled.

        \1196\387 U.S. 253 (1967).
        \1197\Justice Harlan, for himself and Justices Clark, Stewart, 
and White, argued in dissent that there was no evidence that the 
drafters of the Fourteenth Amendment had at all the intention ascribed 
to them by the majority. He would have found in Afroyim's voluntary act 
of voting in a foreign election a voluntary renunciation of United 
States citizenship.
        \1198\Rogers v. Bellei, 401 U.S. 815 (1971). The three remaining 
Afroyim dissenters plus Chief Justice Burger and Justice Blackmun made 
up the majority, the three remaining Justices of the Afroyim majority 
plus Justice Marshall made up the dissenters. The continuing vitality of 
Afroyim was assumed in Vance v. Terrazas, 444 U. S. 252 (1980), in which 
a divided Court upheld a congressionally-imposed standard of proof, 
preponderance of evidence, by which to determine whether one had by his 
actions renounced his citizenship.

        The issue, then, of the constitutionality of congressionally-
prescribed expatriation must be taken as unsettled.


      The Power of Congress to Exclude Aliens

        The power of Congress ``to exclude aliens from the United States 
and to prescribe the terms and conditions on which they come in'' is 
absolute, being an attribute of the United States as a sovereign nation. 
``That the government of the United States, through the action of the 
legislative department, can exclude aliens from its territory is a 
proposition which we do not think open to controversy. Jurisdiction over 
its own territory to that extent is an incident of every independent 
nation. It is a part of its independence. If it could not exclude 
aliens, it would be to that extent subject to the control of another 
power. . . . The United States, in their relation to foreign countries 
and their subjects or citizens, are one nation, invested with powers 
which belong to independent nations, the exercise of which can be 
invoked for the maintenance of its absolute independence and security 
throughout its entire territory.''\1199\

        \1199\Chinese Exclusion Case (Chae Chan Ping v. United States), 
130 U.S. 581, 603, 604 (1889); see also Fong Yue Ting v. United States, 
149 U.S. 698, 705 (1893); The Japanese Immigrant Case (Yamataya v. 
Fisher), 189 U.S. 86 (1903); United States ex rel. Turner v. Williams, 
194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585 (1913); Hines v. 
Davidowitz, 312 U.S. 52 (1941); Kleindeist v. Mandel, 408 U. S. 753 
(1972). In Galvan v. Press, 347 U.S. 522, 530-531 (1954), Justice 
Frankfurter for the Court wrote: ``[M]uch could be said for the view, 
were we writing on a clean slate, that the Due Process Clause qualifies 
the scope of political discretion heretofore recognized as belonging to 
Congress in regulating the entry and deportation of aliens. . . . But 
the slate is not clean. As to the extent of the power of Congress under 
review, there is not merely `a page of history,' . . . but a whole 
volume. . . . [T]hat the formulation of these policies is entrusted 
exclusively to Congress has become about as firmly imbedded in the 
legislative and judicial tissues of our body politic as any aspect of 
our government.'' Although the issue of racial discrimination was before 
the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context of 
parole for undocumented aliens, the Court avoided it, holding that 
statutes and regulations precluded INS considerations of race or 
national origin. Justices Marshall and Brennan, in dissent, argued for 
reconsideration of the long line of precedents and for constitutional 
restrictions on the Government. Id., 858. That there exists some 
limitation upon exclusion of aliens is one permissible interpretation of 
Reagan v. Abourezk, 484 U.S. 1 (1987), affg. by an equally divided 
Court, 785 F.2d 1043 (D.C.Cir. 1986), holding that mere membership in 
the Communist Party could not be used to exclude an alien on the ground 
that his activities might be prejudicial to the interests of the United 
        The power of Congress to prescribe the rules for exclusion or 
expulsion of aliens is a ``fundamental sovereign attribute'' which is 
``of a political character and therefore subject only to narrow judicial 
review.'' Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21 (1976); 
Mathews v. Diaz, 426 U.S. 67, 81-82 (1976); Fiallo v. Bell, 430 U.S. 
787, 792 (1977). Although aliens are ``an identifiable class of 
persons,'' who aside from the classification at issue ``are already 
subject to disadvantages not shared by the remainder of the community,'' 
Hampton v. Mow Sun Wong, supra, 102, Congress may treat them in ways 
that would violate the equal protection clause if a State should do it. 
Diaz, supra (residency requirement for welfare benefits); Fiallo, supra 
(sex and illegitimacy classifications). Nonetheless in Mow Sun Wong, 
supra, 103, the Court observed that when the Federal Government asserts 
an overriding national interest as justification for a discriminatory 
rule that would violate the equal protection clause if adopted by a 
State, due process requires that it be shown that the rule was actually 
intended to serve that interest. The case struck down a classification 
that the Court thought justified by the interest asserted but that had 
not been imposed by a body charged with effectuating that interest. See 
Vergara v. Hampton, 581 F.2d 1281 (C.A. 7, 1978).


[[Page 277]]

        Except for the Alien Act of 1798,\1200\ Congress went almost a 
century without enacting laws regulating immigration into the United 
States. The first such statute, in 1875, barred convicts and 
prostitutes\1201\ and was followed by a series of exclusions based on 
health, criminal, moral, economic, and subversion considerations.\1202\ 
Another important phase was begun with passage of the Chinese Exclusion 
Act in 1882,\1203\ which was not repealed until 1943.\1204\ In 1924, 
Congress enacted into law a national origins quota formula which based 
the proportion of admittable aliens on the nationality breakdown of the 
1920 census, which, of course, was heavily weighed in favor of English 
and northern European ancestry.\1205\ This national origins quota system 
was in effect until it was repealed in 1965.\1206\ The basic law remains 
the Immigra

[[Page 278]]
tion and Nationality Act of 1952,\1207\ which, with certain revisions in 
1965 and later piecemeal alterations, regulates who may be admitted and 
under what conditions; the Act, it should be noted, contains a list of 
31 excludable classes of aliens.\1208\

        \1200\Act of June 25, 1798, 1 Stat. 570. The Act was part of the 
Alien and Sedition Laws and authorized the expulsion of any alien the 
President deemed dangerous.
        \1201\Act of March 3, 1875, 18 Stat. 477.
        \1202\22 Stat. 214 (1882) (excluding idiots, lunatics, convicts, 
and persons likely to become public charges); 23 Stat. 332 (1885), and 
24 Stat. 414 (1887) (regulating importing cheap foreign labor); 26 Stat. 
1084 (1891) (persons suffering from certain diseases, those convicted of 
crimes involving moral turpitude, paupers, and polygamists); 32 Stat. 
1213 (1903) (epileptics, insane persons, professional beggars, and 
anarchists); 34 Stat. 898 (1907) (feeble-minded, children unaccompanied 
by parents, persons suffering with tuberculosis, and women coming to the 
United States for prostitution or other immoral purposes).
        \1203\Act of May 6, 1882, 22 Stat. 58.
        \1204\Act of December 17, 1943, 57 Stat. 600.
        \1205\Act of May 26, 1924, 43 Stat. 153.
        \1206\Act of October 3, 1965, P.L. 89-236, 79 Stat. 911.
        \1207\Act of June 27, 1952, P.L. 82-414, 66 Stat. 163, 8 U.S.C. 
Sec. Sec. 1101 et seq. as amended.
        \1208\The list of excludable aliens may be found at 8 U.S.C. 
Sec. 1182. The list has been modified and classified by category in 
recent amendments.

        Numerous cases underscore the sweeping nature of the powers of 
the Federal Government to exclude aliens and to deport by administrative 
process persons in excluded classes. For example, in United States ex 
rel. Knauff v. Shaughnessy,\1209\ an order of the Attorney General 
excluding, on the basis of confidential information he would not 
disclose, a wartime bride, who was prima facie entitled to enter the 
United States,\1210\ was held to be unreviewable by the courts. Nor were 
regulations on which the order was based invalid as an undue delegation 
of legislative power. ``Normally Congress supplies the conditions of the 
privilege of entry into the United States. But because the power of 
exclusion of aliens is also inherent in the executive department of the 
sovereign, Congress may in broad terms authorize the executive to 
exercise the power, e.g., as was done here, for the best interest of the 
country during a time of national emergency. Executive officers may be 
entrusted with the duty of specifying the procedures for carrying out 
the congressional intent.''\1211\ However, when Congress has spelled out 
the basis for exclusion or deportation, the Court remains free to 
interpret the statute and review the administration of it and to apply 
it, often in a manner to mitigate the effects of the law on 

        \1209\338 U.S. 537 (1950). See also Shaughnessy v. United States 
ex rel. Mezei, 345 U.S. 206 (1953), in which the Court majority upheld 
the Government's power to exclude on the basis of information it would 
not disclose a permanent resident who had gone abroad for about nineteen 
months and was seeking to return on a new visa. But the Court will 
frequently read the applicable statutes and regulations strictly against 
the Government for the benefit of persons sought to be excluded. Cf. 
Delgadillo v. Carmichael, 332 U.S. 388 (1947); Kwong Hai Chew v. 
Colding, 344 U.S. 590 (1953); Rosenburg v. Fleuti, 374 U.S. 449 (1963).
        \1210\Under the War Brides Act of 1945, 59 Stat. 659.
        \1211\Id., 338 U.S., 543.
        \1212\E.g., Immigration and Naturalization Service v. Errico, 
385 U.S. 214 (1966).

        Congress' power to admit aliens under whatever conditions it 
lays down is exclusive of state regulation. The States ``can neither add 
to nor take from the conditions lawfully imposed by Congress upon 
admission, naturalization and residence of aliens in the United States 
or the several states. State laws which impose discriminatory burdens 
upon the entrance or residence of aliens lawfully within the United 
States conflict with this constitutionally derived

[[Page 279]]
federal power to regulate immigration, and have accordingly been held 
invalid.''\1213\ This principle, however, has not precluded all state 
regulations dealing with aliens.\1214\ The power of Congress to 
legislate with respect to the conduct of alien residents is a 
concomitant of its power to prescribe the terms and conditions on which 
they may enter the United States, to establish regulations for sending 
out of the country such aliens as have entered in violation of law, and 
to commit the enforcement of such conditions and regulations to 
executive officers. It is not a power to lay down a special code of 
conduct for alien residents or to govern their private relations.\1215\

        \1213\Takahashi v. Fish & Game Commission, 334 U.S. 410, 419 
(1948); De Canas v. Bica, 424 U.S. 351, 358 n. 6 (1976); Toll v. Moreno, 
458 U.S. 1, 12-13 (1982). See also Hines v. Davidowitz, 312 U.S. 52, 66 
(1941); Graham v. Richardson, 403 U.S. 365, 376-380 (1971).
        \1214\E.g., Heim v. McCall, 239 U.S. 175 (1915); Ohio ex rel. 
Clarke v. Deckebach, 274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 
634, 646-649 (1973); De Canas v. Bica, 424 U.S. 351 (1976); Cabell v. 
Chavez-Salido, 454 U.S. 432 (1982).
        \1215\Purporting to enforce this distinction, the Court voided a 
statute, which, in prohibiting the importation of ``any alien woman or 
girl for the purpose of prostitution,'' provided that whoever should 
keep for the purpose of prostitution ``any alien woman or girl within 
three years after she shall have entered the United States'' should be 
deemed guilty of a felony. Keller v. United States, 213 U.S. 138 (1909).

        Yet Congress is empowered to assert a considerable degree of 
control over aliens after their admission to the country. By the Alien 
Registration Act of 1940, Congress provided that all aliens in the 
United States, fourteen years of age and over, should submit to 
registration and finger printing and willful failure to comply was made 
a criminal offense against the United States.\1216\ This Act, taken in 
conjunction with other laws regulating immigration and naturalization, 
has constituted a comprehensive and uniform system for the regulation of 
all aliens.\1217\

        \1216\54 Stat. 670, 8 U.S.C. Sec. Sec. 1301-1306.
        \1217\See Hines v. Davidowitz, 312 U.S. 52, 69-70 (1941).

        An important benefit of this comprehensive regulation accruing 
to the alien is that it precludes state regulation that may well be more 
severe and burdensome. For example, in Hines v. Davidowitz,\1218\ the 
Court voided a Pennsylvania law requiring the annual registration and 
fingerprinting of aliens but going beyond the subsequently-enacted 
federal law to require acquisition of an alien identification card that 
had to be carried at all times and to be exhibited to any police officer 
upon demand and to other licensing officers upon applications for such 
things as drivers' licenses. The Court did not squarely hold the State 
incapable of having such a law in the absence of federal law but 
appeared to lean in that

[[Page 280]]
direction.\1219\ Another decision voided a Pennsylvania law limiting 
those eligible to welfare assistance to citizens and an Arizona law 
prescribing a fifteen-year durational residency period before an alien 
could be eligible for welfare assistance.\1220\ Congress had provided, 
Justice Blackmun wrote for a unanimous Court, that persons who were 
likely to become public charges could not be admitted to the United 
States and that any alien who became a public charge within five years 
of his admission was to be deported unless he could show that the causes 
of his economic situation arose after his entry.\1221\ Thus, in effect 
Congress had declared that lawfully admitted resident aliens who became 
public charges for causes arising after their entry were entitled to the 
full and equal benefit of all laws for the security of persons and 
property, and the States were disabled from denying aliens these 

        \1218\312 U.S. 52 (1941).
        \1219\Id., 68. But see De Canas v. Bica, 424 U.S. 351 (1976), in 
which the Court upheld a state law prohibiting an employer from hiring 
aliens not entitled to lawful residence in the United States. The Court 
wrote that States may enact legislation touching upon aliens coexistent 
with federal laws, under regular preemption standards, unless the nature 
of the regulated subject matter precludes the conclusion or unless 
Congress has unmistakably ordained the impermissibility of state law.
        \1220\Graham v. Richardson, 403 U.S. 365 (1971). See also 
Sugarman v. Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 
(1973); Cabell v. Chavez-Salido, 454 U.S. 432 (1982).
        \1221\8 U.S.C. Sec. Sec. 1182(a)(8), 1182(a)(15), 1251(a)(8).
        \1222\See 42 U.S.C. Sec. 1981, applied in Takahashi v. Fish and 
Game Commission, 334 U.S. 410, 419 n. 7 (1948).

        Unlike the exclusion proceedings,\1223\ deportation proceedings 
afford the alien a number of constitutional rights: a right against 
self-incrimination,\1224\ protection against unreasonable searches and 
seizures,\1225\ guarantees against ex post facto laws, bills of 
attainder, and cruel and unusual punishment,\1226\ a right to 
bail,\1227\ a right to procedural due process,\1228\ a right to 
counsel,\1229\ a right to notice of charges and hearing,\1230\ as well 
as a right to cross-examine.\1231\

        \1223\See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 
537, 544 (1950), where the Court noted that ``[w]hatever the procedure 
authorized by Congress is, it is due process as far as an alien denied 
entry is concerned.''
        \1224\Kimm v. Rosenberg, 363 U.S. 405 (1960).
        \1225\Abel v. United States, 362 U.S. 217, 229 (1960).
        \1226\Marcello v. Bonds, 349 U.S. 302 (1955).
        \1227\Carlson v. Landon, 342 U.S. 524, 540 (1952).
        \1228\Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950).
        \1229\8 U.S.C. Sec. 1252(b)(2).
        \1230\8 U.S.C. Sec. 1252(b)(1).
        \1231\8 U.S.C. Sec. 1252(b)(3).

        Notwithstanding these guarantees, the Supreme Court has upheld a 
number of statutory deportation measures as not uncon

[[Page 281]]
stitutional. The Internal Security Act of 1950, in authorizing the 
Attorney General to hold in custody, without bail, aliens who are 
members of the Communist Party of the United States, pending 
determination as to their deportability, is not unconstitutional.\1232\ 
Nor was it unconstitutional to deport under the Alien Registration Act 
of 1940\1233\ a legally resident alien because of membership in the 
Communist Party, although such membership ended before the enactment of 
the Act. Such application of the Act did not make it ex post facto, 
being but an exercise of the power of the United States to treminate its 
hospitality ad libitum.\1234\ And a statutory provision\1235\ making it 
a felony for an alien against whom a specified order of deportation is 
outstanding ``to willfully fail or refuse to make timely application for 
travel or other documents necessary to his departure'' was not on its 
face void for ``vagueness.''\1236\

        \1232\Carlson v. Landon, 342 U.S. 524 (1952).
        \1233\54 Stat. 670. For existing statutory provisions as to 
deportation, see 8 U.S.C. Sec. 1251 et seq.
        \1234\Carlson v. Landon, 342 U.S. 524 (1952).
        \1235\8 U.S.C. Sec. 1252(e).
        \1236\United States v. Spector, 343 U.S. 169 (1952).


      Persons Who May Be Released From Debt

        In an early case on circuit, Justice Livingston suggested that 
inasmuch as the English statutes on the subject of bankruptcy from the 
time of Henry VIII down had applied only to traders it might ``well be 
doubted, whether an act of Congress subjecting to such a law every 
description of persons within the United States, would comport with the 
spirit of the powers vested in them in relation to this subject.''\1237\ 
Neither Congress nor the Supreme Court has ever accepted this limited 
view. The first bankruptcy law, passed in 1800, departed from the 
English practice to the extent of including bankers, brokers, factors 
and underwriters as well as traders.\1238\ Asserting that the narrow 
scope of the English statutes was a mere matter of policy, which by no 
means entered into the nature of such laws, Justice Story defined 
bankruptcy legislation in the sense of the Constitution as a law making 
provisions for cases of persons failing to pay their debts.\1239\

        \1237\Adams v. Storey, 1 Fed. Cas. 141, 142 (No. 66) (C.C.D.N.Y. 
        \1238\2 Stat. 19 (1800).
        \1239\2 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1113.

        This interpretation has been ratified by the Supreme Court. In 
Hanover National Bank v. Moyses,\1240\ it held valid the Bankruptcy Act 
of 1898, which provided that persons other than traders might

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become bankrupts and that this might be done on voluntary petition. The 
Court has given tacit approval to the extension of the bankruptcy laws 
to cover practically all classes of persons and corporations,\1241\ 
including even municipal corporations\1242\ and wage-earning 
individuals. The Bankruptcy Act has, in fact been amended to provide a 
wage-earners' extension plan to deal with the unique problems of debtors 
who derive their livelihood primarily from salaries or commissions. In 
furthering the implementation of this plan, the Supreme Court has held 
that a wage earner may make use of it, notwithstanding the fact he has 
been previously discharged in bankruptcy within the last six 

        \1240\186 U.S. 181 (1902).
        \1241\Continental Bank v. Rock Island Ry., 294 U.S. 648, 670 
        \1242\United States v. Bekins, 304 U.S. 27 (1938), 
distinguishing Ashton v. Cameron County Dist., 298 U.S. 513 (1936).
        \1243\Perry v. Commerce Loan Co., 383 U.S. 392 (1966).
      Liberalization of Relief Granted and Expansion of the Rights of 
        the Trustee

        As the coverage of the bankruptcy laws has been expanded, the 
scope of the relief afforded to debtors has been correspondingly 
enlarged. The act of 1800, like its English antecedents, was designed 
primarily for the benefit of creditors. Beginning with the act of 1841, 
which opened the door to voluntary petitions, rehabilitation of the 
debtor has become an object of increasing concern to Congress. An 
adjudication in bankruptcy is no longer requisite to the exercise of 
bankruptcy jurisdiction. In 1867, the debtor for the first time was 
permitted, either before or after adjudication of bankruptcy, to propose 
terms of composition that would become binding upon acceptance by a 
designated majority of his creditors and confirmation by a bankruptcy 
court. This measure was held constitutional,\1244\ as were later acts, 
which provided for the reorganization of corporations that are insolvent 
or unable to meet their debts as they mature,\1245\ and for the 
composition and extension of debts in proceedings for the relief of 
individual farmer debtors.\1246\

        \1244\In re Reiman, 20 Fed. Cas. 490 (No. 11,673) (D.C.S.D.N.Y. 
1874), cited with approval in Continental Bank v. Rock Island Ry., 294 
U.S. 648, 672 (1935).
        \1245\Continental Bank v. Rock Island Ry., 294 U.S. 648 (1935).
        \1246\Wright v. Vinton Branch, 300 U.S. 440 (1937); Adair v. 
Bank of America Assn., 303 U.S. 350 (1938).

        Nor is the power of Congress limited to adjustment of the rights 
of creditors. The Supreme Court has also ruled that the rights of a 
purchaser at a judicial sale of the debtor's property are within reach 
of the bankruptcy power, and may be modified by a reasonable extension 
of the period for redemption from such sale.\1247\ Moreover, the Court 
expanded the bankruptcy court's

[[Page 283]]
power over the property of the estate by affording the trustee 
affirmative relief on counterclaim against a creditor filing a claim 
against the estate.\1248\

        \1247\Wright v. Union Central Ins. Co., 304 U.S. 502 (1938).
        \1248\Katchen v. Landy, 382 U.S. 323 (1966).

        Underlying most Court decisions and statutes in this area is the 
desire to achieve equity and fairness in the distribution of the 
bankrupt's funds.\1249\ United States v. Speers,\1250\ codified by an 
amendment to the Bankruptcy Act,\1251\ furthered this objective by 
strengthening the position of the trustee as regards the priority of a 
federal tax lien unrecorded at the time of bankruptcy.\1252\ The Supreme 
Court has held, in other cases dealing with the priority of various 
creditors' claims, that claims arising from the tort of the receiver is 
an ``actual and necessary'' cost of administration,\1253\ that benefits 
under a nonparticipating annuity plan are not wages and are therefore 
not given priority,\1254\ and that when taxes are allowed against a 
bankrupt's estate, penalties due because of the trustee's failure to pay 
the taxes incurred while operating a bankrupt business are also 
allowable.\1255\ The Court's attitude with regard to these and other 
developments is perhaps best summarized in the opinion in Continental 
Bank v. Rock Island Ry.,\1256\ where Justice Sutherland wrote, on behalf 
of a unanimous court: ``[T]hese acts, far-reaching though they may be, 
have not gone beyond the limit of Congressional power; but rather have 
constituted extensions into a field whose boundaries may not yet be 
fully revealed.''\1257\

        \1249\Bank of Marin v. England, 385 U.S. 99, 103 (1966).
        \1250\382 U.S. 266 (1965). Cf. United States v. Vermont, 337 
U.S. 351 (1964).
        \1251\Act of July 5, 1966, 80 Stat. 269, 11 U.S.C. Sec. 501, 
        \1252\382 U.S., 271-272.
        \1253\Reading Co. v. Brown, 391 U.S. 471 (1968).
        \1254\Joint Industrial Board of the Election Industries v. 
United States, 391 U.S. 224 (1968).
        \1255\Nicholas v. United States, 384 U.S. 678 (1966).
        \1256\294 U.S. 648 (1935).
        \1257\Id., 671.
      Constitutional Limitations on the Bankruptcy Power

        In the exercise of its bankruptcy powers, Congress must not 
transgress the Fifth and Tenth Amendments. The Bankruptcy Act provides 
that oral testimony cannot be used in violation of the bankrupt's right 
against self-incrimination.\1258\ Congress may not take from a creditor 
specific property previously acquired from a debtor, nor circumscribe 
the creditor's right to such an unreasonable extent as to deny him due 
process of law;\1259\ this principle, however, is subject to the Supreme 
Court's finding that a bank

[[Page 284]]
ruptcy court has summary jurisdiction for ordering the surrender of 
voidable preferences when the trustee successfully counterclaims to a 
claim filed by the creditor receiving such preferences.\1260\

        \1258\11 U.S.C. Sec. 344.
        \1259\Louisville Bank v. Radford, 295 U.S. 555, 589, 602 (1935).
        \1260\Katchen v. Landy, 382 U.S. 323, 327-340 (1966).

        Since Congress may not supersede the power of a State to 
determine how a corporation shall be formed, supervised, and dissolved, 
a corporation, which has been dissolved by a decree of a state court, 
may not file a petition for reorganization under the Bankruptcy 
Act.\1261\ But Congress may impair the obligation of a contract and may 
extend the provisions of the bankruptcy laws to contracts already 
entered into at the time of their passage.\1262\ Although it may not 
subject the fiscal affairs of a political subdivision of a State to the 
control of a federal bankruptcy court,\1263\ Congress may empower such 
courts to entertain petitions by taxing agencies or instrumentalities 
for a composition of their indebtedness where the State has consented to 
the proceeding and the federal court is not authorized to interfere with 
the fiscal or governmental affairs of such petitioners.\1264\ Congress 
may recognize the laws of the State relating to dower, exemption, the 
validity of mortgages, priorities of payment and similar matters, even 
though such recognition leads to different results from State to 
State;\1265\ for although bankruptcy legislation must be uniform, the 
uniformity required is geographic, not personal.

        \1261\Chicago Title and Trust Co. v. Wilcox Bldg. Corp., 302 
U.S. 120 (1937).
        \1262\In re Klein, 1 How. (42 U.S.) 277 (1843); Hanover National 
Bank v. Moyses, 186 U.S. 181 (1902).
        \1263\Ashton v. Cameron County Dist., 298 U.S. 513 (1936). See 
also United States v. Bekii 304 U.S. 27 (1938).
        \1264\United Slates v. Bekins, 304 U.S. 27 (1938).
        \1265\Stellwagon v. Clum, 245 U.S. 605 (1918); Hanover National 
Bank v. Moyses, 186 U.S. 181, 190 (1902).

        The power of Congress to vest the adjudication of bankruptcy 
claims in entities not having the constitutional status of Article III 
federal courts is unsettled. At least, it may not give to non-Article 
III courts the authority to hear state law claims made subject to 
federal jurisdiction only because of their relevance to a bankruptcy 

        \1266\Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 
458 U.S. 50 (1982). And see Granfinanciera, S.A. v. Nordberg, 492 U.S. 
33 (1989) (Seventh Amendment right to jury trial in bankruptcy cases).
      Constitutional Status of State Insolvency Laws: Preemption

        Prior to 1898, Congress exercised the power to establish 
``uniform laws on the subject of bankruptcy'' only intermittently. The 
first national bankruptcy law was not enacted until 1800 and was 
repealed in 1803; the second was passed in 1841 and was repealed

[[Page 285]]
two years later; a third was enacted in 1867 and repealed in 1878.\1267\ 
Thus, during the first eighty-nine years under the Constitution, a 
national bankruptcy law was in existence only sixteen years altogether. 
Consequently, the most important issue of interpretation that arose 
during that period concerned the effect of the clause on state law.

        \1267\Hanover National Bank v. Moyses, 186 U.S. 181, 184 (1902).

        The Supreme Court ruled at an early date that in the absence of 
congressional action the States may enact insolvency laws, since it is 
not the mere existence of the power but rather its exercise that is 
incompatible with the exercise of the same power by the States.\1268\ 
Later cases settled further that the enactment of a national bankruptcy 
law does not invalidate state laws in conflict therewith but serves only 
to relegate them to a state of suspended animation with the result that 
upon repeal of the national statute they again come into operation 
without re-enactment.\1269\

        \1268\Sturges v. Crowninshield, 4 Wheat. (17 U.S.) 122, 199 
(1819); Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 368 (1827).
        \1269\Tua v. Carriere, 117 U.S. 201 (1886); Butler v. Goreley, 
146 U.S. 303, 314 (1892).

        A State is, of course, without power to enforce any law 
governing bankruptcies, which impairs the obligation of contracts,\1270\ 
extends to persons or property outside its jurisdiction,\1271\ or 
conflicts with the national bankruptcy laws.\1272\ Giving effect to the 
policy of the federal statute, the Court has held that a state statute 
regulating this distribution of property of an insolvent was suspended 
by that law,\1273\ and that a state court was without power to proceed 
with pending foreclosure proceedings after a farmer-debtor had filed a 
petition in federal bankruptcy court for a composition or extension of 
time to pay his debts.\1274\ A state court injunction ordering a 
defendant to clean up a waste-disposal site was held to be a ``liability 
on a claim'' subject to discharge under the bankruptcy law, after the 
State had appointed a receiver to take charge of the defendant's 
property and comply with the injunction.\1275\ A

[[Page 286]]
state law governing fraudulent transfers was found to be compatible with 
the federal law.\1276\

        \1270\Sturges v. Crowninshield, 4 Wheat. (17 U.S.) 122 (1819).
        \1271\Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 368 (1827); 
Denny v. Bennett, 128 U.S. 489, 498 (1888); Brown v. Smart, 145 U.S. 454 
        \1272\In re Watts and Sachs, 190 U.S. 1, 27 (1903); 
International Shoe Co. v. Pinkus, 278 U.S. 261, 264 (1929).
        \1273\International Shoe Co. v. Pinkus, 278 U.S. 261, 265 
        \1274\Kalb v. Feurerstein, 308 U.S. 433 (1940).
        \1275\Ohio v. Kovacs, 469 U.S. 274 (1985). Compare Kelly v. 
Robinson, 479 U.S. 36 (1986) (restitution obligations imposed as 
conditions of probation in state criminal actions are nondischargeable 
in proceedings under chapter 7), with Pennsylvania Dept. of Public 
Welfare v. Davenport, 495 U.S. 552 (1990) (restitution obligations 
imposed as condition of probation in state criminal actions are 
dischargeable in proceedings under chapter 13).
        \1276\Stellwagen v. Clum, 245 U.S. 605, 615 (1918).

        Substantial disagreement has marked the actions of the Justices 
in one area, however, resulting in three five-to-four decisions first 
upholding and then voiding state laws providing that a discharge in 
bankruptcy was not to relieve a judgment arising out of an automobile 
accident upon pain of suffering suspension of his driver's 
license.\1277\ The state statutes were all similar enactments of the 
Uniform Motor Vehicle Safety Responsibility Act, which authorizes the 
suspension of the license of any driver who fails to satisfy a judgment 
against himself growing out of a traffic accident; a section of the law 
specifically provides that a discharge in bankruptcy will not relieve 
the debtor of the obligation to pay and the consequence of license 
suspension for failure to pay. In the first two decisions, the Court 
majorities decided that the object of the state law was not to see that 
such judgments were paid but was rather a device to protect the public 
against irresponsible driving.\1278\ The last case rejected this view 
and held that the Act's sole emphasis was one of providing leverage for 
the collection of damages from drivers and as such was in fact intended 
to and did frustrate the purpose of the federal bankruptcy law, the 
giving of a fresh start unhampered by debt.\1279\

        \1277\Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department 
of Public Safety, 369 U.S. 153 (1962); Perez v. Campbell, 402 U.S. 637 
        \1278\Reitz v. Mealey, 314 U.S. 33, 37 (1941); Kesler v. 
Department of Public Safety, 369 U.S. 153, 169-174 (1962).
        \1279\Perez v. Campbell, 402 U.S. 637, 644-648, 651-654 (1971). 
The dissenters, Justice Blackmun for himself and Chief Justice Burger 
and Justices Harlan and Stewart, argued, in line with the Reitz and 
Kesler majorities, that the provision at issue was merely an attempt to 
assure driving competence and care on the part of its citizens and had 
only tangential effect upon bankruptcy.

        If a State desires to participate in the assets of a bankruptcy, 
it must submit to the appropriate requirements of the bankruptcy court 
with respect to the filing of claims by a designated date. It cannot 
assert a claim for taxes by filing a demand at a later date.\1280\

        \1280\New York v. Irving Trust Co., 288 U.S. 329 (1933).
                                Cls. 5 and 6--Fiscal and Monetary Powers

  Clauses 5 and 6. The Congress shall have Power * * * To coin Money, 
regulate the Value thereof, and of foreign Coin, and fix the Standard of 
Weights and Measures.
  * * * To provide for the Punishment of counterfeiting the Securities 
and current Coin of the United States.

[[Page 287]]


      Coinage, Weights, and Measures

        The power ``to coin money'' and ``regulate the value thereof'' 
has been broadly construed to authorize regulation of every phase of the 
subject of currency. Congress may charter banks and endow them with the 
right to issue circulating notes,\1281\ and it may restrain the 
circulation of notes not issued under its own authority.\1282\ To this 
end it may impose a prohibitive tax upon the circulation of the notes of 
state banks\1283\ or of municipal corporations.\1284\ It may require the 
surrender of gold coin and of gold certificates in exchange for other 
currency not redeemable in gold. A plaintiff who sought payment for the 
gold coin and certificates thus surrendered in an amount measured by the 
higher market value of gold was denied recovery on the ground that he 
had not proved that he would suffer any actual loss by being compelled 
to accept an equivalent amount of other currency.\1285\ Inasmuch as 
``every contract for the payment of money, simply, is necessarily 
subject to the constitutional power of the government over the currency, 
whatever that power may be, and the obligation of the parties is, 
therefore, assumed with reference to that power,''\1286\ the Supreme 
Court sustained the power of Congress to make Treasury notes legal 
tender in satisfaction of antecedent debts,\1287\ and, many years later, 
to abrogate the clauses in private contracts calling for payment in gold 
coin, even though such contracts were executed before the legislation 
was passed.\1288\ The power to coin money also imports authority to 
maintain such coinage as a medium of exchange at home, and to forbid its 
diversion to other uses by defacement, melting or exportation.\1289\

        \1281\McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819).
        \1282\Veazie Bank v. Fenno, 8 Wall. (75 U.S.) 533 (1869).
        \1283\Id., 548.
        \1284\National Bank v. United States, 101 U.S. 1 (1880).
        \1285\Nortz v. United States, 249 U.S. 317 (1935).
        \1286\Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 457, 
549 (1871); Legal Tender Cases (Juilliard v. Greenman), 110 U.S. 421, 
449 (1884).
        \1287\Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 457 
        \1288\Norman v. Baltimore & O.R. Co., 294 U.S. 240 (1935).
        \1289\Ling Su Fan v. United States, 218 U.S. 302 (1910).
      Punishment of Counterfeiting

        In its affirmative aspect, this clause has been given a narrow 
interpretation; it has been held not to cover the circulation of 
counterfeit coin or the possession of equipment susceptible of use for 
making counterfeit coin.\1290\ At the same time, the Supreme Court has 
rebuffed attempts to read into this provision a limitation upon

[[Page 288]]
either the power of the States or upon the powers of Congress under the 
preceding clause. It has ruled that a State may punish the issuance of 
forged coins.\1291\ On the ground that the power of Congress to coin 
money imports ``the correspondent and necessary power and obligation to 
protect and to preserve in its purity this constitutional currency for 
the benefit of the nation,''\1292\ it has sustained federal statutes 
penalizing the importation or circulation of counterfeit coin,\1293\ or 
the willing and conscious possession of dies in the likeness of those 
used for making coins of the United States.\1294\ In short, the above 
clause is entirely superfluous. Congress would have had the power it 
purports to confer under the necessary and proper clause; and the same 
is the case with the other enumerated crimes it is authorized to punish. 
The enumeration was unnecessary and is not exclusive.\1295\

        \1290\United States v. Marigold, 9 How. (50 U.S.), 560, 568 
        \1291\Fox v. Ohio, 5 How. (46 U.S.) 410 (1847).
        \1292\United States v. Marigold, 9 How. (50 U.S.) 560, 568 
        \1294\Baender v. Barnett, 255 U.S. 224 (1921).
        \1295\Legal Tender Cases (Knox v. Lee), 122 Wall. (79 U.S.) 457, 
536 (1871).
      Borrowing Power Versus Fiscal Power

        Usually the aggregate of the fiscal and monetary powers of the 
National Government--to lay and collect taxes, to borrow money and to 
coin money and regulate the value thereof--have reinforced each other, 
and, cemented by the necessary and proper clause, have provided a secure 
foundation for acts of Congress chartering banks and other financial 
institutions,\1296\ or making its treasury notes legal tender in the 
payment of antecedent debts.\1297\ But in 1935, the opposite situation 
arose--one in which the power to regulate the value of money collided 
with the obligation incurred in the exercise of the power to borrow 
money. By a vote of eight-to-one the Supreme Court held that the 
obligation assumed by the exercise of the latter was paramount, and 
could not be repudiated to effectuate the monetary policies of 
Congress.\1298\ In a concurring opinion, Justice Stone declined to join 
with the majority in suggesting that ``the exercise of the sovereign 
power to borrow money on credit, which does not override the sovereign 
immunity from suit, may nevertheless preclude or impede the exercise of 
another sovereign power, to regulate the value of money; or to suggest 
that although there is and can be no present cause of action upon the re

[[Page 289]]
pudiated gold clause, its obligation is nevertheless, in some manner and 
to some extent, not stated, superior to the power to regulate the 
currency which we now hold to be superior to the obligation of the 
bonds.''\1299\ However, with a view to inducing purchase of savings 
bonds, the sale of which is essential to successful management of the 
national debt, Congress is competent to authorize issuance of 
regulations creating a right of survivorship in such bonds registered in 
co-ownership form, and such regulations preempt provisions of state law 
prohibiting married couples from utilizing the survivorship privilege 
whenever bonds are paid out of community property.\1300\

        \1296\McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 407 (1819); 
Osborn v. United States Bank, 9 Wheat. (22 U.S.) 737, 861 (1824); 
Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U.S. 29, 33 (1875); Smith 
v. Kansas City Title Co., 255 U.S. 180, 208 (1921).
        \1297\Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 457, 
540-547 (1871).
        \1298\Perry v. United States, 294 U.S. 330, 353 (1935).
        \1299\Id., 361.
        \1300\Free v. Bland, 369 U.S. 663 (1962).

  Clause 7. The Congress shall have Power * * * To establish Post 
Offices and post roads.

                              POSTAL POWER


        The great question raised in the early days with reference to 
the postal clause concerned the meaning to be given to the word 
``establish''--did it confer upon Congress the power to construct post 
offices and post roads, or only the power to designate from existing 
places and routes those that should serve as post offices and post 
roads? As late as 1855, Justice McLean stated that this power ``has 
generally been considered as exhausted in the designation of roads on 
which the mails are to be transported,'' and concluded that neither 
under the commerce power nor the power to establish post roads could 
Congress construct a bridge over a navigable water.\1301\ A decade 
earlier, however, the Court, without passing upon the validity of the 
original construction of the Cumberland Road, held that being ``charged 
. . . with the transportation of the mails,'' Congress could enter a 
valid compact with the State of Pennsylvania regarding the use and 
upkeep of the portion of the road lying in the State.\1302\ The debate 
on the question was terminated in 1876 by the decision in Kohl v. United 
States,\1303\ sustaining a proceeding by the United States to 
appropriate a parcel of land in Cincinnati as a site for a post office 
and courthouse.

        \1301\United States v. Railroad Bridge Co., 27 Fed. Cas. 686 
(No. 16,114) (C.C.N.D. Ill. 1855).
        \1302\Searight v. Stokes, 3 How. (44 U.S.) 151, 166 (1845).
        \1303\91 U.S. 367 (1876).

[[Page 290]]
      Power To Protect the Mails

        The postal powers of Congress embrace all measures necessary to 
insure the safe and speedy transit and prompt delivery of the 
mails.\1304\ And not only are the mails under the protection of the 
National Government, they are in contemplation of law its property. This 
principle was recognized by the Supreme Court in 1845 in holding that 
wagons carrying United States mail were not subject to a state toll tax 
imposed for use of the Cumberland Road pursuant to a compact with the 
United States.\1305\ Half a century later it was availed of as one of 
the grounds on which the national executive was conceded the right to 
enter the national courts and demand an injunction against the authors 
of any wide-spread disorder interfering with interstate commerce and the 
transmission of the mails.\1306\

        \1304\Ex parte Jackson, 96 U.S. 727, 732 (1878). See United 
States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 
114 (1981), in which the Court sustained the constitutionality of a law 
making it unlawful for persons to use, without payment of a fee 
(postage), a letterbox which has been designated an ``authorized 
depository'' of the mail by the Postal Service.
        \1305\Searight v. Stokes, 3 How. (44 U.S.) 151, 169 (1845).
        \1306\In re Debs, 158 U.S. 564, 599 (1895).

        Prompted by the efforts of Northern anti-slavery elements to 
disseminate their propaganda in the Southern States through the mails, 
President Jackson, in his annual message to Congress in 1835, suggested 
``the propriety of passing such a law as will prohibit, under severe 
penalties, the circulation in the Southern States, through the mail, of 
incendiary publications intended to instigate the slaves to 
insurrection.'' In the Senate, John C. Calhoun resisted this 
recommendation, taking the position that it belonged to the States and 
not to Congress to determine what is and what is not calculated to 
disturb their security. He expressed the fear that if Congress might 
determine what papers were incendiary, and as such prohibit their 
circulation through the mail, it might also determine what were not 
incendiary and enforce their circulation.\1307\ On this point his 
reasoning would appear to be vindicated by such decisions as those 
denying the right of the States to prevent the importation of alcoholic 
beverages from other States.\1308\

        \1307\Cong. Globe, 24th Cong., 1st Sess., 3, 10, 298 (1835).
        \1308\Bowman v. Chicago & Nw. Railway Co., 125 U.S. 465 (1888); 
Leisy v. Hardin, 135 U.S. 100 (1890).
      Power To Prevent Harmful Use of the Postal Facilities

        In 1872, Congress passed the first of a series of acts to 
exclude from the mails publications designed to defraud the public or 
corrupt its morals. In the pioneer case of Ex parte Jackson,\1309\ the

[[Page 291]]
Court sustained the exclusion of circulars relating to lotteries on the 
general ground that ``the right to designate what shall be carried 
necessarily involves the right to determine what shall be 
excluded.''\1310\ The leading fraud order case, decided in 1904, held to 
the same effect.\1311\ Pointing out that it is ``an indispensable 
adjunct to a civil government,'' to supply postal facilities, the Court 
restated its premise that the ``legislative body in thus establishing a 
postal service may annex such conditions . . . as it chooses.''\1312\

        \1309\96 U.S. 727 (1878).
        \1310\Id., 732.
        \1311\Public Clearing House v. Coyne, 194 U.S. 497 (1904), 
followed in Donaldson v. Read Magazine, 333 U.S. 178 (1948).
        \1312\194 U.S., 506.

        Later cases first qualified these sweeping assertions and then 
overturned them, holding Government operation of the mails to be subject 
to constitutional limitations. In upholding requirements that publishers 
of newspapers and periodicals seeking second-class mailing privileges 
file complete information regarding ownership, indebtedness, and 
circulation and that all paid advertisements in the publications be 
marked as such, the Court emphasized that these provisions were 
reasonably designed to safeguard the second-class privilege from 
exploitation by mere advertising publications.\1313\ Chief Justice White 
warned that the Court by no means intended to imply that it endorsed the 
Government's ``broad contentions concerning . . . the classification of 
the mails, or by the way of condition . . .''\1314\ Again, when the 
Court sustained an order of the Postmaster General excluding from the 
second-class privilege a newspaper he had found to have published 
material in contravention of the Espionage Act of 1917, the claim of 
absolute power in Congress to withhold the privilege was sedulously 

        \1313\Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913).
        \1314\Id., 316.
        \1315\United States ex rel. Milwaukee Publishing Co. v. 
Burleson, 255 U.S. 407 (1921). See also Hannegan v. Esquire, 327 U.S. 
146 (1946), denying the Post Office the right to exclude Esquire 
Magazine from the mails on grounds of the poor taste and vulgarity of 
its contents.

        A unanimous Court transformed these reservations into a holding 
in Lamont v. Postmaster General,\1316\ in which it struck down a statute 
authorizing the Post Office to detain mail it determined to be 
``communist political propaganda'' and to forward it to the addressee 
only if he notified the Post Office he wanted to see it. Noting that 
Congress was not bound to operate a postal service, the Court observed 
that while it did, it was bound to observe constitutional 
guarantees.\1317\ The statute violated the First Amendment

[[Page 292]]
because it inhibited the right of persons to receive any information 
which they wished to receive.\1318\

        \1316\381 U.S. 301 (1965).
        \1317\Id., 305, quoting Justice Holmes in United States ex rel. 
Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 437 (1921) 
(dissenting opinion): ``The United States may give up the Post Office 
when it sees fit, but while it carries it on the use of the mails is 
almost as much a part of free speech as the right to use our tongues. 
. . .'' And see Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting same 
language). But for a different perspective on the meaning and 
application of the Holmes language, see United States Postal Service v. 
Council of Greenburgh Civic Assns., 453 U.S. 114, 127 n. 5 (1981), 
although there too the Court observed that the postal power may not be 
used in a manner that abridges freedom of speech or press. Id., 126. 
Notice, too, that first-class mail is protected against opening and 
inspection, except in accordance with the Fourth Amendment. Ex parte 
Jackson, 96 U.S. 727, 733 (1878); United States v. van Leeuwen, 397 U.S. 
249 (1970). But see United States v. Ramsey, 431 U.S. 606 (1977) (border 
        \1318\Lamont v. Postmaster General, 381 U.S. 301, 306-307 
(1965). And see id., 308 (concurring opinion). Note that this was the 
first congressional statute ever voided as in conflict with the First 

        On the other hand, a statute authorizing persons to place their 
names on a list in order to reject receipt of obscene or sexually 
suggestive materials is constitutional, because no sender has a right to 
foist his material on any unwilling receiver.\1319\ But, as in other 
areas, postal censorship systems must contain procedural guarantees 
sufficient to ensure prompt resolution of disputes about the character 
of allegedly objectionable material consistently with the First 

        \1319\Rowan v. Post Office Department, 397 U.S. 728 (1970).
        \1320\Blount v. Rizzi, 400 U.S. 410 (1971).
      Exclusive Power as an Adjunct to Other Powers

        In the cases just reviewed, it was attempted to close the mails 
to communication which were deemed to be harmful. A much broader power 
of exclusion was asserted in the Public Utility Holding Company Act of 
1935.\1321\ To induce compliance with the regulatory requirements of 
that act, Congress denied the privilege of using the mails for any 
purpose to holding companies that failed to obey that law, irrespective 
of the character of the material to be carried. Viewing the matter 
realistically, the Supreme Court treated this provision as a penalty. 
While it held this statute constitutional because the regulations whose 
infractions were thus penalized were themselves valid,\1322\ it declared 
that ``Congress may not exercise its control over the mails to enforce a 
requirement which lies outside its constitutional province. 
. . .''\1323\

        \1321\49 Stat. 803, 812, 813, 15 U.S.C. Sec. Sec. 79d, 79e.
        \1322\Electric Bond Co. v. SEC, 303 U.S. 419 (1938).
        \1323\Id., 442.
      State Regulations Affecting the Mails

        In determining the extent to which state laws may impinge upon 
persons or corporations whose services are utilized by Congress in 
executing its postal powers, the task of the Supreme Court

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has been to determine whether particular measures are consistent with 
the general policies indicated by Congress. Broadly speaking, the Court 
has approved regulations having a trivial or remote relation to the 
operation of the postal service, while disallowing those constituting a 
serious impediment to it. Thus, a state statute, which granted to one 
company an exclusive right to operate a telegraph business in the State, 
was found to be incompatible with a federal law, which, in granting to 
any telegraph company the right to construct its lines upon post roads, 
was interpreted as a prohibition of state monopolies in a field Congress 
was entitled to regulate in the exercise of its combined power over 
commerce and post roads.\1324\

        \1324\Pensacola Tel. Co. v. Western Union Telegraph Co., 96 U.S. 
1 (1878).

        An Illinois statute, which, as construed by the state courts, 
required an interstate mail train to make a detour of seven miles in 
order to stop at a designated station, also was held to be an 
unconstitutional interference with the power of Congress under this 
clause.\1325\ But a Minnesota statute requiring intrastate trains to 
stop at county seats was found to be unobjectionable.\1326\

        \1325\Illinois Central Railroad v. Illinois, 163 U.S. 142 
        \1326\Gladson v. Minnesota, 166 U.S. 427 (1897).

        Local laws classifying postal workers with railroad employees 
for the purpose of determining a railroad's liability for personal 
injuries,\1327\ or subjecting a union of railway mail clerks to a 
general law forbidding any ``labor organization'' to deny any person 
membership because of his race, color or creed,\1328\ have been held not 
to conflict with national legislation or policy in this field. Despite 
the interference pro tanto with the performance of a federal function, a 
State may arrest a postal employee charged with murder while he is 
engaged in carrying out his official duties,\1329\ but it cannot punish 
a person for operating a mail truck over its highways without procuring 
a driver's license from state authorities.\1330\

        \1327\Price v. Pennsylvania R. Co., 113 U.S. 218 (1895); Martin 
v. Pittsburgh & Lake Erie R.R., 203 U.S. 284 (1906).
        \1328\Railway Mail Assn. v. Corsi, 326 U.S. 88 (1945).
        \1329\United States v. Kirby, 7 Wall. (74 U.S.) 482 (1869).
        \1330\Johnson v. Maryland, 254 U.S. 51 (1920).

  Clause 8. The Congress shall have Power * * * To promote the Progress 
of Science and useful Arts, by securing for limited Times to Authors and 
Inventors the exclusive Right to their respective Writings and 

[[Page 294]]

                         COPYRIGHTS AND PATENTS

      Scope of the Power

        This clause is the foundation upon which the national patent and 
copyright laws rest, although it uses neither of those terms. So far as 
patents are concerned, modern legislation harks back to the Statute of 
Monopolies of 1624, whereby Parliament endowed inventors with the sole 
right to their inventions for fourteen years.\1331\ Copyright law, in 
turn, traces back to the English Statute of 1710, which secured to 
authors of books the sole right of publishing them for designated 
periods.\1332\ Congress was not vested by this clause, however, with 
anything akin to the royal prerogative in the creation and bestowal of 
monopolistic privileges.\1333\ Its power is limited with regard both to 
subject matter and to the purpose and duration of the rights granted. 
Only the writings and discoveries of authors and inventors may be 
protected, and then only to the end of promoting science and the useful 
arts.\1334\ The concept of originality is central to copyright, and it 
is a constitutional requirement Congress may not exceed.\1335\ While 
Congress may grant exclusive rights only for a limited period, it may 
extend the term upon the expiration of the period originally specified, 
and in so doing may protect the rights of purchasers and 
assignees.\1336\ The copyright and patent laws do not have, of their own 
force, any extraterritorial operation.\1337\

        \1331\Pennock v. Dialogue, 2 Pet. (27 U.S.) 1, 17, 18 (1829).
        \1332\Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 656, 658 (1834).
        \1333\Cf. Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966).
        \1334\Kendall v. Winsor, 21 How. (62 U.S.) 322, 328 (1859); A. & 
P. Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950).
        \1335\Feist Publications, Inc. v. Rural Telephone Service Co., 
Inc., 499 U.S. 340 (1991) (publisher of telephone directory, consisting 
of white pages and yellow pages, not entitled to copyright in white 
pages, which are only compilations). ``To qualify for copyright 
protection, a work must be original to the author. . . . Originality, as 
the term is used in copyright, means only that the work was 
independently created by the author (as opposed to copied from other 
works), and that it possesses some minimal degree of creativity. . . . 
To be sure, the requisite level of creativity is extremely low; even a 
slight amount will suffice.'' Id., 345. First clearly articulated in The 
Trade Mark Cases, 100 U.S. 82, 94 (1879), and Burrow-Giles Lithographic 
Co. v. Saroney, 111 U.S. 53, 58-60 (1884), the requirement is expressed 
in nearly every copyright opinion, but its forceful iteration in Feist 
was noteworthy, because originality is a statutory requirement as well, 
17 U.S.C. Sec. 102(a), and it was unnecessary to discuss the concept in 
constitutional terms.
        \1336\Evans v. Jordan, 9 Cr. (13 U.S.) 199 (1815); Bloomer v. 
McQuewan, 14 How. (55 U.S.) 539, 548 (1852); Bloomer v. Millinger, 1 
Wall. (68 U.S.) 340, 350 (1864); Eunson v. Dodge, 18 Wall. (85 U.S.) 
414, 416 (1873).
        \1337\Brown v. Duchesne, 19 How. (60 U.S.) 183, 195 (1857). It 
is, however, the ultimate objective of many nations, including the 
United States, to develop a system of patent issuance and enforcement 
which transcends national boundaries; it has been recommended, 
therefore, that United States policy should be to harmonize its patent 
system with that of foreign countries so long as such measures do not 
diminish the quality of the United States patent standards. President's 
Commission on the Patent System, To Promote the Progress of Useful Arts, 
Report to the Senate Judiciary Committee, S. Doc. No. 5, 90th Cong., 1st 
sess. (1967), recommendation XXXV. Effectuation of this goal was begun 
with the United States agreement to the Berne Convention (the Convention 
for the Protection of Literary and Artistic Works, Sept. 9, 1886), and 
Congress' conditional implementation of the Convention through 
legislation. The Berne Convention Implementation Act of 1988, P. L. 100-
568, 102 Stat. 2853, 17 U.S.C. Sec. 101 and notes.


[[Page 295]]
      Patentable Discoveries

        The protection traditionally afforded by acts of Congress under 
this clause has been limited to new and useful inventions,\1338\ and 
while a patentable invention is a mental achievement,\1339\ for an idea 
to be patentable it must have first taken physical form.\1340\ Despite 
the fact that the Constitution uses the term ``discovery'' rather than 
``invention,'' a patent may not be issued for the discovery of a 
hitherto unknown phenomenon of nature. ``If there is to be invention 
from such a discovery, it must come from the application of the law of 
nature to a new and useful end.''\1341\ As for the mental processes 
which have been traditionally required, the Court has held in the past 
that an invention must display ``more ingenuity . . . than the work of a 
mechanic skilled in the art;''\1342\ and while combination patents have 
been at times sustained,\1343\ the accumulation of old devices is 
patentable ``only when the whole in some way exceeds the sum of its 
parts.''\1344\ Though ``inventive genius''

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and slightly varying language have been appearing in judicial decisions 
for almost a century,\1345\ ``novelty'' and ``utility'' has been the 
primary statutory test since the Patent Act of 1793.\1346\ With 
Congress' enactment of the Patent Act of 1952, however, Sec. 103 of the 
Act required that an innovation be of a ``nonobvious'' nature, that is, 
it must not be an improvement that would be obvious to a person having 
ordinary skill in the pertinent art.\1347\ This alteration of the 
standard of patentability was perceived by some as overruling previous 
Supreme Court cases requiring perhaps a higher standard for obtaining a 
patent,\1348\ but the Court itself interpreted the provision as 
codifying its earlier holding in Hotchkiss v. Greenwood,\1349\ in Graham 
v. John Deere Co.\1350\ The Court in this case said: ``Innovation, 
advancement, and things which add to the sum of useful knowledge are 
inherent requisites in a patent system which by constitutional command 
must `promote the Progress of . . . useful Arts.' This is the standard 
expressed in the Constitution and it may not be ignored.''\1351\ 
Congressional requirements on patentability, then, are conditions and 
tests that must fall within the constitutional standard. Underlying the 
constitutional tests and

[[Page 297]]
congressional conditions for patentability is the balancing of two 
interests--the interest of the public in being protected against 
monopolies and in having ready access to and use of new items versus the 
interest of the country, as a whole, in encouraging invention by 
rewarding creative persons for their innovations. By declaring a 
constitutional standard of patentability, however, the Court, rather 
than Congress, will be doing the ultimate weighing. As for the clarity 
of the patentability standard, the three-fold test of utility, novelty 
and advancement seems to have been made less clear by the Supreme 
Court's recent rejuvenation of ``invention'' as a standard of 

        \1338\Seymour v. Osborne, 11 Wall. (78 U.S.) 516, 549 (1871). 
Cf. Collar Company v. Van Dusen, 23 Wall. (90 U.S.) 530, 563 (1875); 
Reckendorfer v. Faber, 92 U.S. 347, 356 (1876).
        \1339\Smith v. Nichols, 21 Wall. (89 U.S.) 112, 118 (1875).
        \1340\Rubber-Tip Pencil Company v. Howard, 20 Wall. (87 U.S.) 
498, 507 (1874); Clark Thread Co. v. Willimantic Linen Co., 140 U.S. 
481, 489 (1891).
        \1341\Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948). 
Cf. Dow Co. v. Halliburton Co., 324 U.S. 320 (1945); Cuno Corp. v. 
Automatic Devices Corp., 314 U.S. 84, 89 (1941).
        \1342\Sinclair Co. v. Interchemical Corp., 325 U.S. 327, 330 
(1945); Marconi Wireless Co. v. United States, 320 U.S. 1 (1943).
        \1343\Keystone Manufacturing Co. v. Adams, 151 U.S. 139 (1894); 
Diamond Rubber Co. v. Consol. Tire Co., 220 U.S. 428 (1911).
        \1344\A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 
147 (1950). An interesting concurring opinion was filed by Justice 
Douglas for himself and Justice Black: ``It is not enough,'' says 
Justice Douglas, ``that an article is new and useful. The Constitution 
never sanctioned the patenting of gadgets. Patents serve a higher end--
the advancement of science. An invention need not be as startling as an 
atomic bomb to be patentable. But it has to be of such quality and 
distinction that masters of the scientific field in which it falls will 
recognize it as an advance.'' Id., 154-155. He then quotes the following 
from an opinion of Justice Bradley's given 70 years ago:
        ``It was never the object of those laws to grant a monopoly for 
every trifling device, every shadow of a shade of an idea, which would 
naturally and spontaneously occur to any skilled mechanic or operator in 
the ordinary progress of manufacturers. Such an indiscriminate creation 
of exclusive privileges tends rather to obstruct than to stimulate 
invention. It creates a class of speculative schemers who make it their 
business to watch the advancing wave of improvement, and gather its foam 
in the form of patented monopolies, which enable them to lay a heavy tax 
upon the industry of the country, without contributing anything to the 
real advancement of the arts. It embarrasses the honest pursuit of 
business with fears and apprehensions of concealed liens and unknown 
liabilities to lawsuits and vexatious accountings for profits made in 
good faith. ( Atlantic Works v. Brady, 107 U.S. 192, 200 (1882)).'' Id., 
        The opinion concludes: ``The attempts through the years to get a 
broader, looser conception of patents than the Constitution contemplates 
have been persistent. The Patent Office, like most administrative 
agencies, has looked with favor on the opportunity which the exercise of 
discretion affords to expand its own jurisdiction. And so it has placed 
a host of gadgets under the armour of patents--gadgets that obviously 
have had no place in the constitutional scheme of advancing scientific 
knowledge. A few that have reached this Court show the pressure to 
extend monopoly to the simplest of devices: [listing instances].'' Id., 
        \1345\``Inventive genius''--Justice Hunt in Reckendorfer v. 
Faber, 92 U.S. 347, 357 (1875); ``Genius or invention''--Chief Justice 
Fuller in Smith v. Whitman Saddle Co., 148 U.S. 674, 681 (1893); 
``Intuitive genius''--Justice Brown in Potts v. Creager, 155 U.S. 597, 
607 (1895); ``Inventive genius''--Justice Stone in Concrete Appliances 
Co. v. Gomery, 269 U.S. 177, 185 (1925); ``Inventive genius''--Justice 
Roberts in Mantle Lamp Co. v. Aluminum Co., 301 U.S. 544, 546 (1937); 
``the flash of creative genius, not merely the skill of the calling''--
Justice Douglas in Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84, 
91 (1941).
        \1346\Act of February 21, 1793, c. 11, 1 Stat. 318. See Graham 
v. John Deere Co., 383 U.S. 1, 3-4, 10 (1966).
        \1347\35 U.S.C. Sec. 103.
        \1348\E.g., A. & P. Tea Co. v. Supermarket Equip. Corp., 340 
U.S. 147 (1950); Jungerson v. Ostby & Barton Co., 335 U.S. 560 (1949); 
and Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84 (1941).
        \1349\11 How. (52 U.S.) 248 (1850).
        \1350\383 U.S. 1 (1966).
        \1351\Id., 6(first emphasis added, second emphasis by Court). 
For a thorough discussion, see Bonito Boats, Inc. v. Thunder Craft 
Boats, Inc., 489 U.S. 141, 146-152 (1989).
        \1352\Anderson's-Black Rock, Inc. v. Pavement Salvage Co., 396 
U.S. 57 (1969). ``The question of invention must turn on whether the 
combination supplied the key requirement.'' Id., 60. But the Court also 
appeared to apply the test of nonobviousness in the same decision: ``We 
conclude that the combination was reasonably obvious to one with 
ordinary skill in the art.'' Ibid. See also McClain v. Ortmayer, 141 
U.S. 419, 427 (1891), where, speaking of the use of ``invention'' as a 
standard of patentability the Court said: ``The truth is the word cannot 
be defined in such manner as to afford any substantial aid in 
determining whether a particular device involves an exercise of the 
inventive faculty or not.''
      Procedure in Issuing Patents

        The standard of patentability is a constitutional standard, and 
the question of the validity of a patent is a question of law.\1353\ 
Congress may authorize the issuance of a patent for an invention by a 
special, as well as by general, law, provided the question as to whether 
the patentees device is in truth an invention is left open to 
investigation under the general law.\1354\ The function of the 
Commissioner of Patents in issuing letters patent is deemed to be quasi-
judicial in character. Hence an act granting a right of appeal from the 
Commission to the Court of Appeals for the District of Columbia is not 
unconstitutional as conferring executive power upon a judicial 
body.\1355\ The primary responsibility, however, for weeding out 
unpatentable devices rests in the Patent Office.\1356\ The present 
system of ``de novo'' hearings before the Court of Appeals allows the 
applicant to present new evidence which the Patent Office has not 
heard,\1357\ thus making somewhat amorphous the central responsibility.

        \1353\A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950); 
Mahn v. Harwood, 112 U.S. 354, 358 (1884).
        \1354\Evans v. Eaton, 3 Wheat. (16 U.S.) 454, 512 (1818).
        \1355\United States v. Duell, 172 U.S. 576, 586-589 (1899). See 
also Butterworth v. United States ex rel. Hoe, 112 U.S. 50 (1884).
        \1356\Graham v. John Deere Co., 383 U.S. 1, 18 (1966).
        \1357\In Jennings v. Brenner, 255 F. Supp. 410, 412 (D.D.C. 
1966), District Judge Holtzoff suggested that a system of remand be 


[[Page 298]]
      Nature and Scope of the Right Secured

        The leading case bearing on the nature of the rights which 
Congress is authorized to secure is that of Wheaton v. Peters. Wheaton 
charged Peters with having infringed his copyright on the twelve volumes 
of ``Wheaton's Reports,'' wherein are reported the decisions of the 
United States Supreme Court for the years from 1816 to 1827 inclusive. 
Peters' defense turned on the proposition that inasmuch as Wheaton had 
not complied with all of the requirements of the act of Congress, his 
alleged copyright was void. Wheaton, while denying this assertion of 
fact, further contended that the statute was only intended to secure him 
in his pre-existent rights at common law. These at least, he claimed, 
the Court should protect. A divided Court held in favor of Peters on the 
legal question. It denied, in the first place, that there was any 
principle of the common law that protected an author in the sole right 
to continue to publish a work once published. It denied, in the second 
place, that there is any principle of law, common or otherwise, which 
pervades the Union except such as are embodied in the Constitution and 
the acts of Congress. Nor, in the third place, it held, did the word 
``securing'' in the Constitution recognize the alleged common law 
principle Wheaton invoked. The exclusive right Congress is authorized to 
secure to authors and inventors owes its existence solely to the acts of 
Congress securing it,\1358\ from which it follows that the rights 
granted by a patent or copyright are subject to such qualifications and 
limitations as Congress, in its unhampered consultation of the public 
interest, sees fit to impose.\1359\

        \1358\Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 660 (1834); 
Holmes v. Hurst, 174 U.S. 82 (1899). The doctrine of common-law 
copyright was long statutorily preserved for unpublished works, but the 
1976 revision of the federal copyright law abrogated the distinction 
between published and unpublished works, substituting a single federal 
system for that existing since the first copyright law in 1790. 17 
U.S.C. Sec. 301.
        \1359\Wheaton v. Peters, 8 Pet. (33 U.S.) 591, 662 (1834); Evans 
v. Jordan, 9 Cr. (13 U.S.) 199 (1815). A major limitation of copyright 
law is that ``fair use'' of a copyrighted work is not an infringement. 
Fair use can involve such things as citation for the use of criticism 
and reproduction for classroom purposes, but it may not supersede the 
use of the original work. See Harper & Row, Publishers v. Nation 
Enterprises, 471 U.S. 539 (1985) (an unauthorized 300 to 400 word 
excerpt, published as a news ``scoop'' of the authorized prepublication 
excerpt of former President Ford's memoirs and substantially affecting 
the potential market for the authorized version, was not a fair use 
within the meaning of Sec. 107 of the Copyright Act. 17 U.S.C. Sec. 107)

        The Court's ``reluctance to expand [copyright] protection 
without explicit legislative guidance'' controlled its decision in Sony 
Corp. v. Universal City Studios,\1360\ in which it held that the 
manufacture and sale of video tape (or cassette) recorders for home use 
do not constitute ``contributory'' infringement of the copyright in

[[Page 299]]
television programs. Copyright protection, the Court reiterated, is 
``wholly statutory,'' and courts should be ``circumspect'' in extending 
protections to new technology. The Court refused to hold that 
contributory infringement could occur simply through the supplying of 
the devices with which someone else could infringe, especially in view 
of the fact that VCRs are capable of substantial noninfringing ``fair 
use,'' e.g., time shifting of television viewing.

        \1360\464 U.S. 417, 431 (1984).

        In giving to authors the exclusive right to dramatize any of 
their works, Congress did not exceed its powers under this clause. Even 
as applied to pantomine dramatization by means of silent motion 
pictures, the act was sustained against the objection that it extended 
the copyright to ideas rather than to the words in which they were 
clothed.\1361\ But the copyright of the description of an art in a book 
was held not to lay a foundation for an exclusive claim to the art 
itself. The latter can be protected, if at all, only by letters 
patent.\1362\ Since copyright is a species of property distinct from the 
ownership of the equipment used in making copies of the matter 
copyrighted, the sale of a copperplate under execution did not pass any 
right to print and publish the map which the copperplate was designed to 
produce.\1363\ A patent right may, however, be subjected, by bill in 
equity, to payment of a judgment debt of the patentee.\1364\

        \1361\Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). For other 
problems arising because of technological and electronic advancement 
see, e.g., Fortnightly Corp. v. United Artists Television, Inc., 392 
U.S. 390 (1968); Sony Corp. v. Universal City Studios, 464 U.S. 417 
        \1362\Baker v. Selden, 101 U.S. 99, 105 (1880).
        \1363\Stevens v. Gladding, 17 How. (58 U.S.) 447 (1855).
        \1364\Ager v. Murray, 105 U.S. 126 (1882).
      Power of Congress Over Patent Rights

        Letters patent for a new invention or discovery in the arts 
confer upon the patentee an exclusive property in the patented invention 
which cannot be appropriated or used by the Government without just 
compensation.\1365\ Congress may, however, modify rights under an 
existing patent, provided vested property rights are not thereby 
impaired,\1366\ but it does not follow that it may authorize an inventor 
to recall rights that he has granted to others or reinvest in him rights 
of property that he had previously conveyed for a valuable and fair 
consideration.\1367\ Furthermore, the rights

[[Page 300]]
the present statutes confer are subject to the antitrust laws, though it 
can be hardly said that the cases in which the Court has endeavored to 
draw the line between the rights claimable by patentees and the kind of 
monopolistic privileges which are forbidden by those acts exhibit entire 
consistency in their holdings.\1368\

        \1365\James v. Campbell, 104 U.S. 356, 358 (1882). See also 
United States v. Burns 12 Wall. (79 U.S.) 246, 252 (1871); Cammeyer v. 
Newton, 94 U.S. 225, 234 (1877); Hollister v. Benedict Manufacturing 
Co., 113 U.S. 59, 67 (1885); United States v. Palmer, 128 U.S. 262, 271 
(1888); Belknap v. Schild, 161 U.S. 10, 16 (1896).
        \1366\McClurg v. Kingsland, 1 How. (42 U.S.) 202, 206 (1843).
        \1367\Bloomer v. McQuewan, 14 How. (55 U.S.) 539, 553 (1852).
        \1368\See Motion Picture Co. v. Universal Film Co., 243 U.S. 502 
(1917); Morton Salt Co. v. Suppiger Co., 314 U.S. 488 (1942); United 
States v. Masonite Corp., 316 U.S. 265 (1942); United States v. New 
Wrinkle, Inc., 342 U.S. 371 (1952), where the Justices divided 6 to 3 as 
to the significance for the case of certain leading precedents; and 
Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 
      State Power Affecting Patents and Copyrights

        Displacement of state police or taxing powers by federal patent 
or copyright has been a source of considerable dispute. Ordinarily, 
rights secured to inventors must be enjoyed in subordination to the 
general authority of the States over all property within their limits. A 
state statute requiring the condemnation of illuminating oils 
inflammable at less than 130 degrees Fahrenheit was held not to 
interfere with any right secured by the patent laws, although the oil 
for which the patent was issued could not be made to comply with state 
specifications.\1369\ In the absence of federal legislation, a State may 
prescribe reasonable regulations for the transfer of patent rights, so 
as to protect its citizens from fraud. Hence, a requirement of state law 
that the words ``given for a patent right'' appear on the face of notes 
given in payment for such right is not unconstitutional.\1370\ Royalties 
received from patents or copyrights are subject to a nondiscriminatory 
state income tax, a holding to the contrary being overruled.\1371\

        \1369\Patterson v. Kentucky, 97 U.S. 501 (1879).
        \1370\Allen v. Riley, 203 U.S. 347 (1906); John Woods & Sons v. 
Carl, 203 U.S. 358 (1906); Ozan Lumber Co. v. Union County Bank, 207 
U.S. 251 (1907).
        \1371\Fox Film Corp. v. Doyal, 286 U.S. 123 (1932), overruling 
Long v. Rockwood, 277 U.S. 142 (1928).

        State power to protect things not patented or copyrighted under 
federal law has been buffeted under changing Court doctrinal views. In 
two major cases, the Court held that a State could not utilize unfair 
competition laws to prevent or punish the copying of products not 
entitled to a patent. Emphasizing the necessity for a uniform national 
policy and adverting to the monopolistic effects of the state 
protection, the Court inferred that because Congress had not extended 
the patent laws to the material at issue, federal policy was to promote 
free access when the materials were thus in

[[Page 301]]
the public domain.\1372\ But, in Goldstein v. California,\1373\ the 
Court distinguished the two prior cases and held that the determination 
whether a state ``tape piracy'' statute conflicted with the federal 
copyright statute depended upon the existence of a specific 
congressional intent to forbid state protection of the ``writing'' there 
involved. Its consideration of the statute and of its legislative 
history convinced the Court that Congress in protecting certain 
``writings'' and in not protecting others bespoke no intention that 
federally unprotected materials should enjoy no state protection, only 
that Congress ``has left the area unattended.''\1374\ Similar analysis 
was used to sustain the application of a state trade secret law to 
protect a chemical process, that was patentable but not patented, from 
utilization by a commercial rival, which had obtained the process from 
former employees of the company, all of whom had signed agreements not 
to reveal the process. The Court determined that protection of the 
process by state law was not incompatible with the federal patent policy 
of encouraging invention and public use of patented inventions, inasmuch 
as the trade secret law serves other interests not similarly served by 
the patent law and where it protects matter clearly patentable it is not 
likely to deter applications for patents.\1375\

        \1372\Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964); 
Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964).
        \1373\412 U.S. 546 (1973). Informing the decisions were 
different judicial attitudes with respect to the preclusion of the 
States from acting in fields covered by the patent and copyright 
clauses, whether Congress had or had not acted. The latter case 
recognized permissible state interests, id., 552-560, whereas the former 
intimated that congressional power was exclusive. Sears, Roebuck & Co. 
v. Stiffel Co., 376 U.S. 225, 228-231 (1964).
        \1374\In the 1976 revision of the copyright law, Congress 
broadly preempted, with narrow exceptions, all state laws bearing on 
material subject to copyright. 17 U.S.C. Sec. 301. The legislative 
history makes clear Congress' intention to overturn Goldstein and ``to 
preempt and abolish any rights under the common law or statutes of a 
state that are equivalent to copyright and that extend to works coming 
within the scope of the federal copyright law.'' H. Rept. No. 94-1476, 
94th Congress, 2d sess. (1976), 130. The statute preserves state tape 
piracy and similar laws as to sound recordings fixed before February 15, 
1972, until February 15, 2047.
        \1375\Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). See 
also Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979).

        Returning to the Sears and Compco emphasis, the Court 
unanimously, in Bonito Boats v. ThunderCraft Boats,\1376\ reasserted 
that ``efficient operation of the federal patent system depends upon 
substantially free trade in publicly known, unpatented design and 
utilitarian conceptions.''\1377\ At the same time, however, the Court 
attempted to harmonize Goldstein, Kewanee, and other decisions: there is 
room for state regulation of the use of

[[Page 302]]
unpatented designs if those regulations are ``necessary to promote goals 
outside the contemplation of the federal patent scheme.''\1378\ What 
States are forbidden to do is to ``offer patent-like protection to 
intellectual creations which would otherwise remain unprotected as a 
matter of federal law.''\1379\ A state law ``aimed directly at 
preventing the exploitation of the [unpatented] design'' is invalid as 
impinging on an area of pervasive federal regulation.\1380\

        \1376\489 U.S. 141 (1989).
        \1377\Id., 156.
        \1378\Id., 166. As examples of state regulation that might be 
permissible, the Court referred to unfair competition, trademark, trade 
dress, and trade secrets laws. Perhaps by way of distinguishing Sears 
and Compco, both of which invalidated use of unfair competition laws, 
the Court suggested that prevention of ``consumer confusion'' is a 
permissible state goal that can be served in some instances by 
application of such laws. Id., 154.
        \1379\Id., 156(emphasis supplied).
        \1380\Id., 158.
      Trade-Marks and Advertisements

        In the famous Trade-Mark Cases,\1381\ decided in 1879, the 
Supreme Court held void acts of Congress, which, in apparent reliance 
upon this clause, extended the protection of the law to trade-marks 
registered in the Patent Office. ``The ordinary trade mark,'' said 
Justice Miller for the Court, ``has no necessary relation to invention 
or discovery;'' nor is it to be classified ``under the head of writings 
of authors.'' It does not ``depend upon novelty, invention, discovery, 
or any work of the brain.''\1382\ Not many years later, the Court, again 
speaking through Justice Miller, ruled that a photograph may be 
constitutionally copyrighted,\1383\ while still more recently a circus 
poster was held to be entitled to the same protection. In answer to the 
objection of the circuit court that a lithograph which ``has no other 
use than that of a mere advertisement . . . (would not be within) the 
meaning of the Constitution,'' Justice Holmes summoned forth the shades 
of Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support 
of the proposition that it is not for the courts to attempt to judge the 
worth of pictorial illustrations outside the narrowest and most obvious 

        \1381\100 U.S. 82 (1879).
        \1382\Id., 94.
        \1383\Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 
        \1384\Bleisten v. Donaldson Lithographing Co., 188 U.S. 239, 251 
                                    Cls. 9 and 10--Piracies and Felonies

  Clause 9. The Congress shall have Power * * * To constitute Tribunals 
inferior to the supreme Court; (see Article III).

[[Page 303]]

  Clause 10. The Congress shall have Power * * * To define and punish 
Piracies and Felonies committed on the high Seas, and Offences against 
the Law of Nations.


      Origin of the Clause

        ``When the United States ceased to be a part of the British 
empire, and assumed the character of an independent nation, they became 
subject to that system of rules which reason, morality, and custom had 
established among civilized nations of Europe, as their public law. 
. . . The faithful observance of this law is essential to national 
character. . . .''\1385\ These words of the Chancellor Kent expressed 
the view of the binding character of international law that was 
generally accepted at the time the Constitution was adopted. During the 
Revolutionary War, Congress took cognizance of all matters arising under 
the law of nations and professed obedience to that law.\1386\ Under the 
Articles of Confederation, it was given exclusive power to appoint 
courts for the trial of piracies and felonies committed on the high 
seas, but no provision was made for dealing with offenses against the 
law of nations.\1387\ The draft of the Constitution submitted to the 
Convention of 1787 by its Committee of Detail empowered Congress ``to 
declare the law and punishment of piracies and felonies committed on the 
high seas, and the punishment of counterfeiting the coin of the United 
States, and of offences against the law of nations.''\1388\ In the 
debate on the floor of the Convention, the discussion turned on the 
question as to whether the terms, ``felonies'' and the ``law of 
nations,'' were sufficiently precise to be generally understood. The 
view that these terms were often so vague and indefinite as to require 
definition eventually prevailed and Congress was authorized to define as 
well as punish piracies, felonies, and offenses against the law of 

        \1385\1 J. Kent, Commentaries on American Law (New York: 1826), 
        \1386\19 Journals of the Continental Congress, 315, 361 (1912); 
20 id. 762; 21 id. 1136-1137, 1158.
        \1387\Article IX.
        \1388\2 M. Farrand, The Records of the Federal Convention of 
1787 (New Haven: Rev. ed. 1937), 168, 182.
        \1389\Id., 316.
      Definition of Offenses

        The fact that the Constitutional Convention considered it 
necessary to give Congress authority to define offenses against the law

[[Page 304]]
of nations does not mean that in every case Congress must undertake to 
codify that law or mark its precise boundaries before prescribing 
punishments for infractions thereof. An act punishing ``the crime of 
piracy, as defined by the law of nations'' was held to be an appropriate 
exercise of the constitutional authority to ``define and punish'' the 
offense, since it adopted by reference the sufficiently precise 
definition of International Law.\1390\ Similarly, in Ex parte 
Quirin,\1391\ the Court found that by the reference in the Fifteenth 
Article of War to ``offenders or offenses that . . . by the law of war 
may be triable by such military commissions . . .,'' Congress had 
``exercised its authority to define and punish offenses against the law 
of nations by sanctioning, within constitutional limitations, the 
jurisdiction of military commissions to try persons for offenses which, 
according to the rules and precepts of the law of nations, and more 
particularly the law of war, are cognizable by such tribunals.''\1392\ 
Where, conversely, Congress defines with particularity a crime which is 
``an offense against the law of nations,'' the law is valid, even if it 
contains no recital disclosing that it was enacted pursuant to this 
clause. Thus, the duty which the law of nations casts upon every 
government to prevent a wrong being done within its own dominion to 
another nation with which it is at peace, or to the people thereof, was 
found to furnish a sufficient justification for the punishment of the 
counterfeiting within the United States, of notes, bonds, and other 
securities of foreign governments.\1393\

        \1390\United States v. Smith, 5 Wheat. (18 U.S.) 153, 160, 162 
(1820). See also The Marianna Flora, 11 Wheat. (24 U.S.) 1, 40-41 
(1826); United States v. Brig Malek Abhel, 2 How. (43 U.S.) 210, 232 
        \1391\317 U.S. 1, 27 (1942).
        \1392\Id., 28.
        \1393\United States v. Arjona, 120 U.S. 479 487, 488 (1887).
      Extraterritorial Reach of the Power

        Since this clause contains the only specific grant of power to 
be found in the Constitution for the punishment of offenses outside the 
territorial limits of the United States, a lower federal court held in 
1932\1394\ that the general grant of admiralty and maritime jurisdiction 
by Article III, Sec. 2, could not be construed as extending either the 
legislative or judicial power of the United States to cover offenses 
committed on vessels outside the United States but not on the high seas. 
Reversing that decision, the Supreme Court held that this provision 
``cannot be deemed to be a limitation on the powers, either legislative 
or judicial, conferred on the National Government by Article III, 
Sec. 2. The two clauses are the result of separate steps independently 
taken in the Convention, by which

[[Page 305]]
the jurisdiction in admiralty, previously divided between the 
Confederation and the States, was transferred to the National 
Government. It would be a surprising result, and one plainly not 
anticipated by the framers or justified by principles which ought to 
govern the interpretation of a constitution devoted to the 
redistribution of governmental powers, if part of them were lost in the 
process of transfer. To construe the one clause as limiting rather than 
supplementing the other would be to ignore their history, and without 
effecting any discernible purpose of their enactment, to deny to both 
the States and the National Government powers which were common 
attributes of sovereignty before the adoption of the Constitution. The 
result would be to deny to both the power to define and punish crimes of 
less gravity than felonies committed on vessels of the United States 
while on the high seas, and crimes of every grade committed on them 
while in foreign territorial waters.''\1395\ Within the meaning of this 
section, an offense is committed on the high seas even where the vessel 
on which it occurs is lying at anchor on the road in the territorial 
waters of another country.\1396\

        \1394\United States v. Flores, 3 F. Supp. 134 (E.D. Pa. 1932).
        \1395\United States v. Flores, 289 U.S. 137, 149-150 (1933).
        \1396\United States v. Furlong, 5 Wheat. (18 U.S.) 184, 200 
                                  Cls. 11, 12, 13, and 14--The War Power

  Clauses 11, 12, 13, and 14. The Congress shall have power * * * ;
  To declare War, grant Letters of Marque and Reprisal, and make Rules 
concerning Captures on Land and Water.
  To raise and support Armies, but no Appropriation of Money to that Use 
shall be for a longer Term than two Years.
  To provide and maintain a Navy.
  To make Rules for the Government and Regulation of the land and naval 

                              THE WAR POWER

      Source and Scope

        Three Theories.--Three different views regarding the source of 
the war power found expression in the early years of the Constitution 
and continued to vie for supremacy for nearly a century and a half. 
Writing in The Federalist,\1397\ Hamilton elaborated

[[Page 306]]
the theory that the war power is an aggregate of the particular powers 
granted by Article I, Sec. 8. Not many years later, in 1795, the 
argument was advanced that the war power of the National Government is 
an attribute of sovereignty and hence not dependent upon the affirmative 
grants of the written Constitution.\1398\ Chief Justice Marshall appears 
to have taken a still different view, namely that the power to wage war 
is implied from the power to declare it. In McCulloch v. Maryland,\1399\ 
he listed the power ``to declare and conduct a war''\1400\ as one of the 
``enumerated powers'' from which the authority to charter the Bank of 
the United States was deduced. During the era of the Civil War, the two 
latter theories were both given countenance by the Supreme Court. 
Speaking for four Justices in Ex parte Milligan, Chief Justice Chase 
described the power to declare war as ``necessarily'' extending ``to all 
legislation essential to the prosecution of war with vigor and success, 
except such as interferes with the command of the forces and conduct of 
campaigns.''\1401\ In another case, adopting the terminology used by 
Lincoln in his Message to Congress on July 4, 1861,\1402\ the Court 
referred to ``the war power'' as a single unified power.\1403\

        \1397\The Federalist, No. 23 (J. Cooke ed. ed.: 1937), 146-151.
        \1398\Penhallow v. Doane, 3 Dall. (3 U.S.) 53 (1795).
        \1399\4 Wheat. (17 U.S.) 316 (1819).
        \1400\Id., 407. (Emphasis supplied.)
        \1401\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866) 
(dissenting opinion); see also Miller v. United States, 11 Wall. (78 
U.S.) 268, 305 (1871); and United States v. MacIntosh, 283 U.S. 605, 622 
        \1402\Cong. Globe, 37th Congress, 1st Sess., App. 1 (1861).
        \1403\Hamilton v. Dillin, 21 Wall. (88 U.S.) 73, 86 (1875).

        An Inherent Power.--Thereafter, we find the phrase, ``the war 
power,'' being used by both Chief Justice White\1404\ and Chief Justice 
Hughes,\1405\ the former declaring the power to be ``complete and 
undivided.''\1406\ Not until 1936, however, did the Court explain the 
logical basis for imputing such an inherent power to the Federal 
Government. In United States v. Curtis-Wright Corp.,\1407\ the reasons 
for this conclusion were stated by Justice Sutherland as follows: ``As a 
result of the separation from Great Britain by the colonies acting as a 
unit, the powers of external sovereignty passed from the Crown not to 
the colonies severally, but to the colonies in their collective and 
corporate capacity as the United States of America. Even before the 
Declaration, the colonies were a unit in foreign affairs, acting through 
a common agency--namely, the Con

[[Page 307]]
tinental Congress, composed of delegates from the thirteen colonies. 
That agency exercised the powers of war and peace, raised an army, 
created a navy, and finally adopted the Declaration of Independence. 
. . . It results that the investment of the Federal Government with the 
powers of external sovereignty did not depend upon the affirmative 
grants of the Constitution. The power to declare and wage war, to 
conclude peace, to make treaties, to maintain diplomatic relations with 
other sovereignties, if they had never been mentioned in the 
Constitution, would have vested in the Federal Government as necessary 
concomitants of nationality.''\1408\

        \1404\Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 
U.S. 135, 149 (1919).
        \1405\Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398 (1934).
        \1406\Northern Pac. Ry. Co. v. North Dakota, ex rel. Langer, 250 
U.S. 135, 149 (1919).
        \1407\299 U.S. 304 (1936).
        \1408\Id., 316, 318. On the controversy respecting Curtiss-
Wright, see infra, Article II.

        A Complexus of Granted Powers.--In Lichter v. United 
States,\1409\ on the other hand, the Court speaks of the ``war powers'' 
of Congress. Upholding the Renegotiation Act, it declared that: ``In 
view of this power `To raise and support Armies, . . . and the power 
granted in the same Article of the Constitution `to make all Laws which 
shall be necessary and proper for carrying into Execution the foregoing 
Powers,' . . . the only question remaining is whether the Renegotiation 
Act was a law `necessary and proper for carrying into Execution' the war 
powers of Congress and especially its power to support armies.''\1410\ 
In a footnote, it listed the Preamble, the necessary and proper clause, 
the provisions authorizing Congress to lay taxes and provide for the 
common defense, to declare war, and to provide and maintain a navy, 
together with the clause designating the President as Commander-in-Chief 
of the Army and Navy, as being ``among the many other provisions 
implementing the Congress and the President with powers to meet the 
varied demands of war. . . .''\1411\

        \1409\334 U.S. 742 (1948).
        \1410\Id., 757-758.
        \1411\Id., 755 n. 3.
      Declaration of War

        In the early draft of the Constitution presented to the 
Convention by its Committee of Detail, Congress was empowered ``to make 
war.''\1412\ Although there were solitary suggestions that the power 
should better be vested in the President alone,\1413\ in the Senate

[[Page 308]]
alone,\1414\ or in the President and the Senate,\1415\ the sentiment of 
the Convention, as best we can determine from the limited notes of the 
proceedings, was that the potentially momentous consequences of 
initiating armed hostilities should be called up only by the concurrence 
of the President and both Houses of Congress.\1416\ In contrast to the 
English system, the Framers did not want the wealth and blood of the 
Nation committed by the decision of a single individual;\1417\ in 
contrast to the Articles of Confederation, they did not wish to forego 
entirely the advantages of executive efficiency nor to entrust the 
matter solely to a branch so close to popular passions.\1418\

        \1412\2 M. Farrand, The Records of the Federal Convention of 
1787 (New Haven: rev. ed. 1937), 313.
        \1413\Mr. Butler favored ``vesting the power in the President, 
who will have all the requisite qualities, and will not make war but 
when the Nation will support it.'' Id., 318.
        \1414\Mr. Pinkney thought the House was too numerous for such 
deliberations but that the Senate would be more capable of a proper 
resolution and more acquainted with foreign affairs. Additionally, with 
the States equally represented in the Senate, the interests of all would 
be safeguarded. Ibid.
        \1415\Hamilton's plan provided that the President was ``to make 
war or peace, with the advice of the senate . . .'' 1 id., 300.
        \1416\2 id., 318-319. In The Federalist, No. 69 (J. Cooke ed. 
1961), 465, Hamilton notes: ``[T]he President is to be commander-in-
chief of the army and navy of the United States. In this respect his 
authority would be nominally the same with that of the king of Great 
Britain, but in substance much inferior to it. It would amount to 
nothing more than the supreme command and direction of the military and 
naval forces, as first General and admiral of the confederacy; while 
that of the British king extends to the declaring of war and to the 
raising and regulating of fleets and armies,--all which, by the 
Constitution under consideration, would appertain to the legislature.'' 
(Emphasis in original). And see id., No. 26, 164-171. Cf. C. Berdahl, 
War Powers of the Executive in the United States (Urbana, Ill.: 1921), 
ch. V.
        \1417\The Federalist, No. 69 (J. Cooke ed. 1961), 464-465, 470. 
During the Convention, Gerry remarked that he ``never expected to hear 
in a republic a motion to empower the Executive alone to declare war.'' 
2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: 
rev. ed. 1937), 318.
        \1418\The Articles of Confederation vested powers with regard to 
foreign relations in the Congress.

        The result of these conflicting considerations was that the 
Convention amended the clause so as to give Congress the power to 
``declare war.''\1419\ Although this change could be read to give 
Congress the mere formal function of recognizing a state of hostilities, 
in the context of the Convention proceedings it appears more likely the 
change was intended to insure that the President was empowered to repel 
sudden attacks\1420\ without awaiting congressional action and to make 
clear that the conduct of war was vested exclusively in the 

        \1419\2 M. Farrand, The Records of the Federal Convention of 
1787 (New Haven: rev. ed. 1937), 318-319.
        \1420\Jointly introducing the amendment to substitute 
``declare'' for ``make,'' Madison and Gerry noted the change would 
``leav[e] to the Executive the power to repel sudden attacks.'' Id., 
        \1421\Connecticut originally voted against the amendment to 
substitute ``declare'' for ``make'' but ``on the remark by Mr. King that 
`make' war might be understood to `conduct' it which was an Executive 
function, Mr. Ellsworth gave up his opposition, and the vote of 
Connecticut was changed. . . .'' Id., 319. The contemporary and 
subsequent judicial interpretation was to the understanding set out in 
the text. Cf. Talbot v. Seeman, 1 Cr. (5 U.S.), 1, 28 (1801) (Chief 
Justice Marshall: ``The whole powers of war being, by the Constitution 
of the United States, vested in congress, the acts of that body alone 
can be resorted to as our guides in this inquiry.''); Ex parte Milligan, 
4 Wall. (71 U.S.) 2, 139 (1866).


[[Page 309]]

        An early controversy revolved about the issue of the President's 
powers and the necessity of congressional action when hostilities are 
initiated against us rather than the Nation instituting armed conflict. 
The Bey of Tripoli, in the course of attempting to extort payment for 
not molesting United States shipping, declared war upon the United 
States, and a debate began whether Congress had to enact a formal 
declaration of war to create a legal status of war. President Jefferson 
sent a squadron of frigates to the Mediterranean to protect our ships 
but limited its mission to defense in the narrowest sense of the term. 
Attacked by a Tripolitan cruiser, one of the frigates subdued it, 
disarmed it, and, pursuant to instructions, released it. Jefferson in a 
message to Congress announced his actions as in compliance with 
constitutional limitations on his authority in the absence of a 
declaration of war.\1422\ Hamilton espoused a different interpretation, 
contending that the Constitution vested in Congress the power to 
initiate war but that when another nation made war upon the United 
States we were already in a state of war and no declaration by Congress 
was needed.\1423\ Congress thereafter enacted a statute authorizing the 
President to instruct the commanders of armed vessels of the United 
States to seize all vessels and goods of the Bey of Tripoli ``and also 
to cause to be done all such other acts of precaution or hostility as 
the state of war will justify . . .''\1424\ But no formal declaration of 
war was passed, Congress apparently accepting Hamilton's view.\1425\

        \1422\Messages and Papers of the Presidents, J. Richardson ed. 
(Washington: 1896), 326, 327.
        \1423\7 Works of Alexander Hamilton, J. Hamilton ed. (New York: 
1851), 746-747.
        \1424\2 Stat. 129, 130 (1802) (emphasis supplied).
        \1425\Of course, Congress need not declare war in the all-out 
sense; it may provide for a limited war which, it may be, the 1802 
statute recognized. Cf. Bas v. Tingy, 4 Dall. (4 U.S.) 37 (1800).

        Sixty years later, the Supreme Court sustained the blockade of 
the Southern ports instituted by Lincoln in April 1861 at a time when 
Congress was not in session.\1426\ Congress had subsequently ratified 
Lincoln's action,\1427\ so that it was unnecessary for the Court to 
consider the constitutional basis of the President's action in the 
absence of congressional authorization, but the Court nonetheless 
approved, five-to-four, the blockade order as an exercise of

[[Page 310]]
Presidential power alone, on the ground that a state of war was a fact. 
``The President was bound to meet it in the shape it presented itself, 
without waiting for Congress to baptize it with a name; and no name 
given to it by him or them could change the fact.''\1428\ The minority 
challenged this doctrine on the ground that while the President could 
unquestionably adopt such measures as the laws permitted for the 
enforcement of order against insurgency, Congress alone could stamp an 
insurrection with the character of war and thereby authorize the legal 
consequences ensuing from a state of war.\1429\

        \1426\The Prize Cases, 2 Bl. (67 U.S.) 635 (1863).
        \1427\12 Stat. 326 (1861).
        \1428\The Prize Cases, 2 Bl. (67 U.S.) 635, 669 (1863).
        \1429\Id., 682.

        The view of the majority was proclaimed by a unanimous Court a 
few years later when it became necessary to ascertain the exact dates on 
which the war began and ended. The Court, the Chief Justice said, must 
``refer to some public act of the political departments of the 
government to fix the dates; and, for obvious reasons, those of the 
executive department, which may be, and, in fact, was, at the 
commencement of hostilities, obliged to act during the recess of 
Congress, must be taken. The proclamation of intended blockade by the 
President may therefore be assumed as marking the first of these dates, 
and the proclamation that the war had closed, as marking the 

        \1430\The Protector, 12 Wall. (79 U.S.) 700, 702 (1872).

        These cases settled the issue whether a state of war could exist 
without formal declaration by Congress. When hostile action is taken 
against the Nation, or against its citizens or commerce, the appropriate 
response by order of the President may be resort to force. But the issue 
so much a source of controversy in the era of the Cold War and so 
divisive politically in the context of United States involvement in the 
Vietnamese War has been whether the President is empowered to commit 
troops abroad to further national interests in the absence of a 
declaration of war or specific congressional authorization short of such 
a declaration.\1431\ The Supreme Court studiously refused to consider 
the issue in any of the forms in which it was presented,\1432\ and the 
lower courts gen

[[Page 311]]
erally refused, on ``political question'' grounds, to adjudicate the 
matter.\1433\ In the absence of judicial elucidation, the Congress and 
the President have been required to accommodate themselves in the 
controversy to accept from each other less than each has been willing to 
accept but more than either has been willing to grant.\1434\

        \1431\The controversy, not susceptible of definitive resolution 
in any event, was stilled for the moment, when in 1973 Congress set a 
cut-off date for United States military activities in Indochina, P.L. 
93-52, 108, 87 Stat. 134, and subsequently, over the President's veto, 
Congress enacted the War Powers Resolution, providing a framework for 
the assertion of congressional and presidential powers in the use of 
military force. P.L. 93-148, 87 Stat. 555 (1973), 50 U.S.C. 
Sec. Sec. 1541-1548.
        \1432\In Atlee v. Richardson, 411 U.S. 911 (1973), aff'g. 347 F. 
Supp. 689 (E.D.Pa., 1982), the Court summarily affirmed a three-judge 
court's dismissal of a suit challenging the constitutionality of United 
States activities in Vietnam on political question grounds. The action 
constituted approval on the merits of the dismissal, but it did not 
necessarily approve the lower court's grounds. See also Massachusetts v. 
Laird, 400 U.S. 886 (1970); Holtzman v. Schlesinger, 414 U.S. 1304, 
1316, 1321 (1973) (actions of individual justices on motions for stays). 
The Court simply denied certiorari in all cases on its discretionary 
        \1433\E.g., Velvel v. Johnson, 287 F. Supp. 846 (D.Kan. 1968), 
aff'd sub nom. Velvel v. Nixon, 415 F.2d 236 (10th Cir., 1969), cert. 
den., 396 U.S. 1042 (1970); Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 
1966), aff'd 373 F.2d 664 (C.A.D.C. 1967), cert. den., 389 U.S. 945 
(1968); Mora v. McNamara, 387 F.2d 862 (D.C.Cir., 1967), cert. den., 389 
U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970), 
and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and 
aff'd, 443 F.2d 1039 (2d Cir., 1971), cert. den., 404 U.S. 869 (1971); 
Massachusetts v. Laird, 451 F.2d 26 (1st Cir., 1971); Holtzman v. 
Schlesinger, 484 F.2d 1307 (2d Cir., 1973) cert. den., 416 U.S. 936 
(1974); Mitchell v. Laird, 488 F.2d 611 (D.C.Cir., 1973).
        During the 1980s, the courts were no more receptive to suits, 
many by Members of Congress, seeking to obtain a declaration of the 
President's powers. The political question doctrine as well as certain 
discretionary authorities were relied on. See, e.g., Crockett v. Reagan, 
558 F.Supp. 893 (D.D.C. 1982) (military aid to El Salvador), affd. 720 
F.2d 1355 (D.C.Cir. 1983), cert. den., 467 U.S. 1251 (1984); Conyers v. 
Reagan, 578 F.Supp. 324 (D.D.C. 1984) (invasion of Grenada), dismd. as 
moot, 765 F.2d 1124 (D.C.Cir. 1985); Lowry v. Reagan, 676 F.Supp. 333 
(D.D.C. 1987) (reflagging and military escort operation in Persian 
Gulf), affd. No. 87-5426 (D.C.Cir. 1988); Dellums v. Bush, 752 F.Supp. 
1141 (D.D.C. 1990) (U.S. Saudia Arabia/Persian Gulf deployment).
        \1434\For further discussion, see under section on President's 
commander-in-chief powers.


      Purpose of Specific Grants

        The clauses of the Constitution, which give Congress authority 
to raise and support armies, and so forth, were not inserted to endow 
the national government rather than the States with the power to do 
these things but to designate the department of the Federal Government, 
which would exercise the powers. As we have noted above, the English 
king was endowed with the power not only to initiate war but the power 
to raise and maintain armies and navies.\1435\ Aware historically that 
these powers had been utilized to the detriment of the liberties and 
well-being of Englishmen and aware that in the English Declaration of 
Rights of 1688 it was insisted that standing armies could not be 
maintained without the

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consent of Parliament, the Framers vested these basic powers in 

        \1435\W. Blackstone, Commentaries, St. G. Tucker ed. 
(Philadelphia: 1803), 263.
        \1436\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1187.
      Time Limit on Appropriations for the Army

        Prompted by the fear of standing armies to which Story alluded, 
the framers inserted the limitation that ``no appropriation of money to 
that use shall be for a longer term than two years.'' In 1904, the 
question arose whether this provision would be violated if the 
Government contracted to pay a royalty for use of a patent in 
constructing guns and other equipment where the payments are likely to 
continue for more than two years. Solicitor-General Hoyt ruled that such 
a contract would be lawful; that the appropriations limited by the 
Constitution ``are those only which are to raise and support armies in 
the strict sense of the word `support,' and that the inhibition of that 
clause does not extend to appropriations for the various means which an 
army may use in military operations, or which are deemed necessary for 
the common defense. . . .''\1437\ Relying on this earlier opinion, 
Attorney General Clark ruled in 1948 that there was ``no legal objection 
to a request to the Congress to appropriate funds to the Air Force for 
the procurement of aircraft and aeronautical equipment to remain 
available until expended.''\1438\

        \1437\25 Ops. Atty. Gen. 105, 108 (1904).
        \1438\40 Ops. Atty. Gen. 555 (1948).

        The constitutions adopted during the Revolutionary War by at 
least nine of the States sanctioned compulsory military service.\1439\ 
Towards the end of the War of 1812, conscription of men for the army was 
proposed by James Monroe, then Secretary of War, but opposition 
developed and peace came before the bill could be enacted.\1440\ In 
1863, a compulsory draft law was adopted and put into operation without 
being challenged in the federal courts.\1441\ Not so the Selective 
Service Act of 1917.\1442\ This measure was attacked on the grounds that 
it tended to deprive the States of the right to ``a well-regulated 
militia,'' that the only power of Congress to exact compulsory service 
was the power to provide for calling forth the militia for the three 
purposes specified in the Constitu

[[Page 313]]
tion, which did not comprehend service abroad, and finally that the 
compulsory draft imposed involuntary servitude in violation of the 
Thirteenth Amendment. The Supreme Court rejected all of these 
contentions. It held that the powers of the States with respect to the 
militia were exercised in subordination to the paramount power of the 
National Government to raise and support armies, and that the power of 
Congress to mobilize an army was distinct from its authority to provide 
for calling the militia and was not qualified or in any wise limited 

        \1439\Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox 
v. Wood, 247 U.S. 3 (1918).
        \1440\Id., 245 U.S., 385.
        \1441\Id., 386-388. The measure was upheld by a state court. 
Kneedler v. Lane, 45 Pa. St. 238 (1863).
        \1442\Act of May 18, 1917, 40 Stat. 76.
        \1443\Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918).

        Before the United States entered the first World War, the Court 
had anticipated the objection that compulsory military service would 
violate the Thirteenth Amendment and had answered it in the following 
words: ``It introduced no novel doctrine with respect of services always 
treated as exceptional, and certainly was not intended to interdict 
enforcement of those duties which individuals owe to the State, such as 
services in the army, militia, on the jury, etc. The great purpose in 
view was liberty under the protection of effective government, not the 
destruction of the latter by depriving it of essential powers.''\1444\ 
Accordingly, in the Selective Draft Law Cases,\1445\ it dismissed the 
objection under that amendment as a contention that was ``refuted by its 
mere statement.''\1446\

        \1444\Butler v. Perry, 240 U.S. 328, 333 (1916).
        \1445\245 U.S. 366 (1918).
        \1446\Id., 390.

        Although the Supreme Court has so far formally declined to pass 
on the question of the ``peacetime'' draft,\1447\ its opinions leave no 
doubt of the constitutional validity of the act. In United States v. 
O'Brien,\1448\ upholding a statute prohibiting the destruction of 
selective service registrants' certificate of registration, the Court, 
speaking through Chief Justice Warren, thought ``[t]he power of Congress 
to classify and conscript manpower for military service is `beyond 
question.'''\1449\ In noting Congress' ``broad constitutional power'' to 
raise and regulate armies and navies,\1450\ the Court has specifically 
observed that the conscription act was passed ``pursuant to'' the grant 
of authority to Congress in clauses 12-14.\1451\

        \1447\Universal Military Training and Service Act of 1948, 62 
Stat. 604, as amended, 50 U.S.C. App. Sec. Sec. 451-473. Actual 
conscription has been precluded as of July 1, 1973, P.L. 92-129, 85 
Stat. 353, 50 U.S.C. App. Sec. 467(c), and registration was discontinued 
in 1975. Pres. Proc. No. 4360, 3 C.F.R. 462, 50 U.S.C. App. Sec. 453 
note. Registration, but not conscription, was reactivated in the wake of 
the invasion of Afghanistan. P.L. 96-282, 94 Stat. 552 (1980).
        \1448\391 U.S. 367 (1968).
        \1449\Id., 377, quoting Lichter v. United States, 334 U.S. 742, 
756 (1948).
        \1450\Schlesinger v. Ballard, 419 U.S. 498, 510 (1975).
        \1451\Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id., 64-
65. And see Selective Service System v. Minnesota Public Interest 
Research Group, 468 U.S. 841 (1984) (upholding denial of federal 
financial assistance under Title IV of the Higher Education Act to young 
men who fail to register for the draft).


[[Page 314]]
      Care of the Armed Forces

        Scope of the congressional and executive authority to prescribe 
the rules for the governance of the military is broad and subject to 
great deference by the judiciary. The Court recognizes ``that the 
military is, by necessity, a specialized society separate from civilian 
society,'' that ``[t]he military constitutes a specialized community 
governed by a separate discipline from that of the civilian,'' and that 
``Congress is permitted to legislate both with greater breadth and with 
greater flexibility when prescribing the rules by which [military 
society] shall be governed than it is when prescribing rules for 
[civilian society].''\1452\ Denying that Congress or military 
authorities are free to disregard the Constitution when acting in this 
area,\1453\ the Court nonetheless operates with ``a healthy deference to 
legislative and executive judgments'' with respect to military 
affairs,\1454\ so that, while constitutional guarantees apply, ``the 
different character of the military community and of the military 
mission requires a different application of those protections.''\1455\

        \1452\Parker v. Levy, 417 U.S. 733, 743-752 (1974). See also 
Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Schlesinger v. 
Councilman, 420 U.S. 738, 746-748 (1975); Greer v. Spock, 424 U.S. 828, 
837-838 (1976); Middendorf v. Henry, 425 U.S. 25, 45-46 (1976); Brown v. 
Glines, 444 U.S. 348, 353-358 (1980); Rostker v. Goldberg, 453 U.S. 57, 
64-68 (1981).
        \1453\Rostker v. Goldberg, 453 U.S. 57, 67 (1981).
        \1454\Id., 66. ``[P]erhaps in no other area has the Court 
accorded Congress greater deference.'' Id., 64-65. See also Gilligan v. 
Morgan, 413 U.S. 1, 10 (1973).
        \1455\Parker v. Levy, 417 U.S. 733, 758 (1974). ``[T]he tests 
and limitations [of the Constitution] to be applied may differ because 
of the military context.'' Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

        In reliance upon this deference to congressional judgment with 
respect to the roles of the sexes in combat and the necessities of 
military mobilization, coupled with express congressional consideration 
of the precise questions, the Court sustained as constitutional the 
legislative judgment to provide only for registration of males for 
possible future conscription.\1456\ Emphasizing the unique, separate 
status of the military, the necessity to indoctrinate men in obedience 
and discipline, the tradition of military neutrality in political 
affairs, and the need to protect troop morale, the Court upheld the 
validity of military post regulations, backed by congressional 
enactments, banning speeches and demonstrations of a partisan political 
nature and the distribution of literature without prior approval of post 
headquarters, with the commander authorized to keep out only those 
materials that would clearly endanger

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the loyalty, discipline, or morale of troops on the base.\1457\ On the 
same basis, the Court rejected challenges on constitutional and 
statutory grounds to military regulations requiring servicemen to obtain 
approval from their commanders before circulating petitions on base, in 
the context of circulations of petitions for presentation to 
Congress.\1458\ And the statements of a military officer urging 
disobedience to certain orders could be punished under provisions that 
would have been of questionable validity in a civilian context.\1459\ 
Reciting the considerations previously detailed, the Court has refused 
to allow enlisted men and officers to sue to challenge or set aside 
military decisions and actions.\1460\

        \1456\Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero 
v. Richardson, 411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 
U.S. 498 (1975).
        \1457\Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. 
United States, 407 U.S. 197 (1972).
        \1458\Brown v. Glines, 444 U.S. 348 (1980); Secretary of the 
Navy v. Huff, 444 U.S. 453 (1980). The statutory challenge was based on 
10 U.S.C. Sec. 1034, which protects a serviceman's right to communicate 
with a Member of Congress, but which the Court interpreted narrowly.
        \1459\Parker v. Levy, 417 U.S. 733 (1974).
        \1460\Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men 
charging racial discrimination by their superiors in duty assignments 
and performance evaluations could not bring constitutional tort suits); 
United States v. Stanley, 483 U.S. 669 (1987) (officer who had been an 
unwitting, unconsenting subject of an Army experiment to test the 
effects of LSD on human subjects could not bring a constitutional tort 
for damages). These considerations are also the basis of the Court's 
construction of the Federal Tort Claims Act so that it does not reach 
injuries arising out of or in the course of military activity. Feres v. 
United States, 340 U.S. 135 (1950). In United States v. Johnson, 481 
U.S. 681 (1987), four Justices urged reconsideration of Feres, but that 
has not occurred.

        Congress has a plenary and exclusive power to determine the age 
at which a soldier or seaman shall be received, the compensation he 
shall be allowed and the service to which he shall be assigned. This 
power may be exerted to supersede parents' control of minor sons who are 
needed for military service. Where the statute requiring the consent of 
parents for enlistment of a minor son did not permit such consent to be 
qualified, their attempt to impose a condition that the son carry war 
risk insurance for the benefit of his mother was not binding on the 
Government.\1461\ Since the possession of government insurance payable 
to the person of his choice is calculated to enhance the morale of the 
serviceman, Congress may permit him to designate any beneficiary he 
desires, irrespective of state law, and may exempt the proceeds from the 
claims of creditors.\1462\ Likewise, Congress may bar a State from 
taxing the

[[Page 316]]
tangible, personal property of a soldier, assigned for duty therein, but 
domiciled elsewhere.\1463\ To safeguard the health and welfare of the 
armed forces, Congress may authorize the suppression of bordellos in the 
vicinity of the places where forces are stationed.\1464\

        \1461\United States v. Williams, 302 U.S. 46 (1937). See also In 
re Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 
        \1462\Wissner v. Wissner, 338 U.S. 655 (1950); Ridgway v. 
Ridgway, 454 U.S. 46 (1981). In the absence of express congressional 
language, like that found in Wissner, the Court nonetheless held that a 
state court division under its community property system of an officer's 
military retirement benefits conflicted with the federal program and 
could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See also 
Porter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from 
creditors' claims of disability benefits deposited by a veteran's 
guardian in a savings and loan association).
        \1463\Dameron v. Brodhead, 345 U.S. 322 (1953). See also 
California v. Buzard, 382 U.S. 386 (1966); Sullivan v. United States, 
395 U.S. 169 (1969).
        \1464\McKinley v. United States, 249 U.S. 397 (1919).
      Trial and Punishment of Offenses: Servicemen, Civilian Employees, 
        and Dependents

        Under its power to make rules for the government and regulation 
of the armed forces, Congress has set up a system of criminal law 
binding on all servicemen, with its own substantive laws, its own courts 
and procedures, and its own appeals procedure.\1465\ The drafters of 
these congressional enactments conceived of a military justice system 
with application to all servicemen wherever they are, to reservists 
while on inactive duty training, and to certain civilians in special 
relationships to the military. In recent years, all these conceptions 
have been restricted.

        \1465\The Uniform Code of Military Justice of 1950, 64 Stat. 
107, as amended by the Military Justice Act of 1968, 82 Stat. 1335, 10 
U.S.C. Sec. 801 et seq. For prior acts, see 12 Stat. 736 (1863); 39 
Stat. 650 (1916).

        Servicemen.--Although there is extensive disagreement about the 
practice of court-martial trial of servicemen for nonmilitary offenses 
in the past,\1466\ the matter never really was raised in substantial 
degree until the Cold War period when the United States found it 
essential to maintain both at home and abroad a large standing army in 
which great numbers of servicemen were draftees. In O'Callahan v. 
Parker,\1467\ the Court held that court-martial jurisdiction was lacking 
to try servicemen charged with a crime that was not ``service 
connected.'' The Court attempted to assay no definition of ``service 
connection,'' but among the factors it noted were that the crime in 
question was committed against a civilian in peacetime in the United 
States off-base while the serviceman was lawfully off duty.\1468\ 
O'Callahan was overruled in Solorio v. United States,\1469\ the Court 
holding that ``the requirements of the

[[Page 317]]
Constitution are not violated where . . . a court-martial is convened to 
try a serviceman who was a member of the armed services at the time of 
the offense charged.''\1470\ Chief Justice Rehnquist's opinion for the 
Court insisted that O'Callahan had been based on erroneous readings of 
English and American history, and that ``the service connection approach 
. . . has proved confusing and difficult for military courts to 

        \1466\Compare Solorio v. United States, 483 U.S. 435, 441-447 
(1987) (majority opinion), with id., 456-461 (dissenting opinion), and 
O'Callahan v. Parker, 395 U.S. 258, 268-272 (1969) (majority opinion), 
with id., 276-280 (Justice Harlan dissenting). See Duke & Vogel, ``The 
Constitution and the Standing Army: Another Problem of Court-Martial 
Jurisdiction,'' 13 Vand. L. Rev. 435 (1960).
        \1467\395 U.S. 258 (1969).
        \1468\Id., 273-274. See also Relford v. Commandant, 401 U.S. 355 
(1971); Gosa v. Mayden, 413 U.S. 665 (1973).
        \1469\483 U.S. 435 (1987).
        \1470\Id., 450-451.
        \1471\Id., 448. Although the Court of Military Appeals had 
affirmed Solorio's military-court conviction on the basis that the 
service-connection test had been met, the Court elected to reconsider 
and overrule O'Callahan altogether.

        With regard to trials before court-martials, it is not clear 
what provisions of the Bill of Rights and other constitutional 
guarantees do apply. The Fifth Amendment expressly excepts ``[c]ases 
arising in the land and naval forces'' from its grand jury provision, 
and there is an implication that these cases are also excepted from the 
Sixth Amendment.\1472\ The double jeopardy provision of the Fifth 
Amendment appears to be applicable.\1473\ The Court of Military Appeals 
now holds that servicemen are entitled to all constitutional rights 
except those expressly or by implication inapplicable to the 
military.\1474\ The Uniform Code of Military Justice, supplemented by 
the Manual for Courts-Martial, affirmatively grants due process rights 
roughly comparable to civilian procedures, so that many such issues are 
unlikely to arise absolutely necessitating constitutional 
analysis.\1475\ However, the Code leaves intact much of the criticized 
traditional structure of courts-martial, including the pervasive 
possibilities of command influence,\1476\ and the Court of Military 
Appeals is limited on the scope of its review,\1477\ thus creating areas 
in which constitutional challenges are likely.

        \1472\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 123, 138-139 
(1866); Ex parte Quirin, 317 U.S. 1, 40 (1942). The matter was raised 
but left unresolved in Middendorf v. Henry, 425 U.S. 25 (1976).
        \1473\See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. 
United States, 206 U.S. 333 (1907).
        \1474\United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 
(1960); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 
(1967). This conclusion by the Court of Military Appeals is at least 
questioned and perhaps disapproved in Middendorf v. Henry, 425 U.S. 25, 
43-48 (1976), in the course of overturning a CMA rule that counsel was 
required in summary court-martial. For the CMA's response to the holding 
see United States v. Booker, 5 M. J. 238 (C.M.A. 1977), rev'd in part on 
reh., 5 M. J. 246 (C.M.A. 1978).
        \1475\The UCMJ guarantees counsel, protection from self-
incrimination and double jeopardy, and warnings of rights prior to 
interrogation, to name a few.
        \1476\Cf. O'Callahan v. Parker, 395 U.S. 258, 263-264 (1969).
        \1477\10 U.S.C. Sec. 867.

        Upholding Articles 133 and 134 of the Uniform Code of Military 
Justice, the Court stressed the special status of military soci

[[Page 318]]
ety.\1478\ This difference has resulted in a military Code regulating 
aspects of the conduct of members of the military that in the civilian 
sphere would go unregulated, but on the other hand the penalties imposed 
range from the severe to well below the threshold of that possible in 
civilian life. Because of these factors, the Court, while agreeing that 
constitutional limitations applied to military justice, was of the view 
that the standards of constitutional guarantees were significantly 
different in the military than in civilian life. Thus, the vagueness 
challenge to the Articles was held to be governed by the standard 
applied to criminal statutes regulating economic affairs, the most 
lenient of vagueness standards.\1479\ Neither did application of the 
Articles to conduct essentially composed of speech necessitate a voiding 
of the conviction, inasmuch as the speech was unprotected, and, even 
while it might reach protected speech, the officer here was unable to 
raise that issue.\1480\

        \1478\Parker v. Levy, 417 U.S. 733 (1974). Article 133 punishes 
a commissioned officer for ``conduct unbecoming an officer and 
gentleman,'' and Article 134 punishes any person subject to the Code for 
``all disorders and neglects to the prejudice of good order and 
discipline in the armed forces.''
        \1479\Id., 756.
        \1480\Id., 757-761.

        Military courts are not Article III courts but agencies 
established pursuant to Article I.\1481\ It was established in the last 
century that the civil courts have no power to interfere with courts-
martial and that court-martial decisions are not subject to civil court 
review.\1482\ Until August 1, 1984, the Supreme Court had no 
jurisdiction to review by writ of certiorari the proceedings of a 
military commission, but Congress has now conferred appellate 
jurisdiction of decisions of the Court of Military Appeals.\1483\ Prior 
to this time, civil court review of court-martial decisions was possible 
through habeas corpus jurisdiction,\1484\ an avenue that continues to 
exist, but the Court severely limited the scope of such review, 
restricting it to the issue whether the court-martial has jurisdiction 
over the person tried and the offense charged.\1485\ In Burns v. Wil

[[Page 319]]
son,\1486\ however, at least seven Justices appeared to reject the 
traditional view and adopt the position that civil courts on habeas 
corpus could review claims of denials of due process rights to which the 
military had not given full and fair consideration. Since Burns, the 
Court has thrown little light on the range of issues cognizable by a 
federal court in such litigation\1487\ and the lower federal courts have 
divided several possible ways.\1488\

        \1481\Kurtz v. Moffitt, 115 U.S. 487 (1885); Dynes v. Hoover, 20 
How. (61 U.S.) 65 (1858). Judges of Article I courts do not have the 
independence conferred by security of tenure and of compensation.
        \1482\Dynes v. Hoover, 20 How. (61 U.S.) 65 (1858).
        \1483\Military Justice Act of 1983, P.L. 98-209, 97 Stat. 1393, 
28 U.S.C. Sec. 1259.
        \1484\Cf. Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866); Ex 
parte Yerger, 8 Wall. (75 U.S.) 85 (1869); Ex parte Reed, 100 U.S. 13 
(1879). While federal courts have jurisdiction to intervene in military 
court proceedings prior to judgment, as a matter of equity, following 
the standards applicable to federal court intervention in state criminal 
proceedings, they should act when the petitioner has not exhausted his 
military remedies only in extraordinary circumstances. Schlesinger v. 
Councilman, 420 U.S. 738 (1975).
        \1485\Ex parte Reed, 100 U.S. 13 (1879); Swaim v. United States, 
165 U.S. 553 (1897); Carter v. Roberts, 177 U.S. 496 (1900); Hiatt v. 
Brown, 339 U.S. 103 (1950).
        \1486\346 U.S. 137 (1953).
        \1487\Cf. Fowler v. Wilkinson, 353 U.S. 583 (1957); United 
States v. Augenblick, 393 U.S. 348, 350 n. 3, 351 (1969); Parker v. 
Levy, 417 U.S. 733 (1974); Secretary of the Navy v. Avrech, 418 U.S. 676 
        \1488\E.g., Calley v. Callaway, 519 F. 2d 184, 194-203 (5th 
Cir., 1975) (en banc), cert. den., 425 U.S. 911 (1976).

        Civilians and Dependents.--In recent years, the Court rejected 
the view of the drafters of the Code of Military Justice with regard to 
the persons Congress may constitutionally reach under its clause 14 
powers. Thus, it held that an honorably discharged former soldier, 
charged with having committed murder during military service in Korea, 
could not be tried by court-martial but must be charged in federal 
court, if at all.\1489\ After first leaning the other way,\1490\ the 
Court on rehearing found lacking court-martial jurisdiction, at least in 
peacetime, to try civilian dependents of service personnel for capital 
crimes committed outside the United States.\1491\ Subsequently, the 
Court extended its ruling to civilian dependents overseas charged with 
noncapital crimes\1492\ and to civilian employees of the military 
charged with either capital or noncapital crimes.\1493\

        \1489\United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). 
See also Lee v. Madigan, 358 U.S. 228 (1959).
        \1490\Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 
351 U.S. 487 (1956
        \1491\Reid v. Covert, 354 U.S. 1 (1957) (voiding court-martial 
convictions of two women for murdering their soldier husbands stationed 
in Japan). Chief Justice Warren and Justices Black, Douglas, and Brennan 
were of the opinion Congress' power under clause 14 could not reach 
civilians. Justices Frankfurter and Harlan concurred, limited to capital 
cases. Justices Clark and Burton dissented.
        \1492\Kinsella v. United States ex rel. Singleton, 361 U.S. 234 
(1960) (voiding court-martial conviction for noncapital crime of wife of 
soldier husband overseas). The majority could see no reason for 
distinguishing between capital and noncapital crimes. Justices Harlan 
and Frankfurter dissented on the ground that in capital cases greater 
constitutional protection, available in civil courts, was required.
        \1493\Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United 
States ex rel. Guagliardo, 361 U.S. 281 (1960).

                             WAR LEGISLATION

      War Powers in Peacetime

        To some indeterminate extent, the power to wage war embraces the 
power to prepare for it and the power to deal with the problems of 
adjustment following its cessation. Justice Story em

[[Page 320]]
phasized that ``[i]t is important also to consider, that the surest 
means of avoiding war is to be prepared for it in peace. . . . How could 
a readiness for war in time of peace be safely prohibited, unless we 
could in like manner prohibit the preparations and establishments of 
every hostile nation? . . . It will be in vain to oppose constitutional 
barriers to the impulse of self-preservation.''\1494\ Authoritative 
judicial recognition of the power is found in Ashwander v. Tennessee 
Valley Authority,\1495\ in which the power of the Federal Government to 
construct and operate a dam and power plant, pursuant to the National 
Defense Act of June 3, 1916,\1496\ was sustained. The Court noted that 
the assurance of an abundant supply of electrical energy and of 
nitrates, which would be produced at the site, ``constitute national 
defense assets'' and the project was justifiable under the war 

        \1494\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1180.
        \1495\297 U.S. 288 (1936).
        \1496\39 Stat. 166 (1916).
        \1497\297 U.S., 327-328.

        Perhaps the most significant example of legislation adopted 
pursuant to the war powers when no actual ``shooting war'' was in 
progress, with the object of strengthening national defense, was the 
Atomic Energy Act of 1946, establishing a body to oversee and further 
the research into and development of atomic energy for both military and 
civil purposes.\1498\ Congress has also authorized a vast amount of 
highway construction, pursuant to its conception of their ``primary 
importance to the national defense,''\1499\ and the first extensive 
program of federal financial assistance in the field of education was 
the National Defense Education Act.\1500\ The post-World War II years, 
though nominally peacetime, constituted the era of the Cold War and the 
occasions for several armed conflicts, notably in Korea and Indochina, 
in which the Congress enacted much legislation designed to strengthen 
national security, including an apparently permanent draft,\1501\ 
authorization of extensive space exploration,\1502\ authorization for 
wage and price con

[[Page 321]]
trols,\1503\ and continued extension of the Renegotiation Act to 
recapture excess profits on defense contracts.\1504\ Additionally, the 
period saw extensive regulation of matter affecting individual rights, 
such as loyalty-security programs,\1505\ passport controls,\1506\ and 
limitations on members of the Communist Party and associated 
organizations,\1507\ all of which are dealt with in other sections.

        \1498\60 Stat. 755 (1946), 42 U.S.C. Sec. 1801 et seq.
        \1499\108(a), 70 Stat. 374, 378 (1956), 23 U.S.C. Sec. 101(b), 
naming the Interstate System the ``National System of Interstate and 
Defense Highways.''
        \1500\72 Stat. 1580 (1958), as amended, codified to various 
sections of Titles 20 and 42.
        \1501\Universal Military Training and Service Act of 1948, 62 
Stat. 604, as amended, 50 U.S.C. App. Sec. Sec. 451-473. Actual 
conscription has been precluded as of July 1, 1973, P. L. 92-129, 85 
Stat. 353, 50 U. S. C. App. 467(c), although registration for possible 
conscription is in effect. P. L. 96-282, 94 Stat. 552 (1980).
        \1502\National Aeronautics and Space Act of 1958, 72 Stat. 426, 
as amended, codified in various sections of Titles 5, 18, and 50.
        \1503\Title II of the Defense Production Act Amendments of 1970, 
84 Stat. 799, as amended, provided temporary authority for wage and 
price controls, a power which the President subsequently exercised. E.O. 
11615, 36 Fed Reg. 15727 (August 16, 1971). Subsequent legislation 
expanded the President's authority. 85 Stat. 743, 12 U.S.C. Sec. 1904 
        \1504\Renogtiation Act of 1951, 65 Stat. 7, as amended, 50 
U.S.C. App. Sec. 1211 et seq.
        \1505\E.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 
886 (1961); Peters v. Hobby, 349 U.S. 331 (1955).
        \1506\Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Laub, 
385 U.S. 475 (1967).
        \1507\United States v. Robel, 389 U.S. 258 (1967); United States 
v. Brown, 381 U.S. 437 (1965).

        A particular province of such legislation is that designed to 
effect a transition from war to peace. The war power ``is not limited to 
victories in the field. . . . It carries with it inherently the power to 
guard against the immediate renewal of the conflict, and to remedy the 
evils which have arisen from its rise and progress.''\1508\ This 
principle was given a much broader application after the First World War 
in Hamilton v. Kentucky Distilleries Co.,\1509\ where the War Time 
Prohibition Act\1510\ adopted after the signing of the Armistice was 
upheld as an appropriate measure for increasing war efficiency. The 
Court was unable to conclude that the war emergency had passed with the 
cessation of hostilities.\1511\ But in 1924, it held that a rent control 
law for the District of Columbia, which had been previously 
upheld,\1512\ had ceased to operate because the emergency which 
justified it had come to an end.\1513\

        \1508\Stewart v. Kahn, 11 Wall. (78 U.S.) 493, 507 (1871) 
(sustaining a congressional deduction from a statute of limitations the 
period during which the Civil War prevented the bringing of an action). 
See also Mayfield v. Richards, 115 U.S. 137 (1885).
        \1509\251 U.S. 146 (1919). See also Ruppert v. Caffey, 251 U.S. 
264 (1920).
        \1510\Act of November 21, 1918, 40 Stat. 1046.
        \1511\251 U.S., 163.
        \1512\Block v. Hirsh, 256 U.S. 135 (1921).
        \1513\Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924).

        A similar issue was presented after World War II in which the 
Court held that the authority of Congress to regulate rents by virtue of 
the war power did not end with the presidential proclamation terminating 
hostilities on December 31, 1946.\1514\ However,

[[Page 322]]
the Court cautioned that ``[w]e recognize the force of the argument that 
the effects of war under modern conditions may be felt in the economy 
for years and years, and that if the war power can be used in days of 
peace to treat all the wounds which war inflicts on our society, it may 
not only swallow up all other powers of Congress but largely obliterate 
the Ninth and Tenth Amendments as well. There are no such implications 
in today's decision.''\1515\

        \1514\Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See 
also Fleming Mohawk Wrecking Co., 331 U.S. 111 (1947).
        \1515\Id., 333 U.S., 143-144.

        In the same year, the Court sustained by only a five-to-four 
vote the Government's contention that the power which Congress had 
conferred upon the President to deport enemy aliens in times of a 
declared war was not exhausted when the shooting stopped.\1516\ ``It is 
not for us to question,'' said Justice Frankfurter for the Court, ``a 
belief by the President that enemy aliens who were justifiably deemed 
fit subjects for internment during active hostilites [sic] do not lose 
their potency for mischief during the period of confusion and conflict 
which is characteristic of a state of war even when the guns are silent 
but the peace of Peace has not come.''\1517\

        \1516\Ludecke v. Watkins, 335 U.S. 160 (1948).
        \1517\Id., 170.
      Delegation of Legislative Power in Wartime

        The Court has insisted that in times of war as in times of peace 
``the respective branches of the Government keep within the power 
assigned to each,''\1518\ thus raising the issue of permissible 
delegation, inasmuch as during a war Congress has been prone to delegate 
many more powers to the President than at other times.\1519\ But the 
number of cases actually discussing the matter is few.\1520\ Two 
theories have been advanced at times when the delegation doctrine 
carried more of a force than it has in recent years. First, it is 
suggested that inasmuch as the war power is inherent in the Federal 
Government, and one shared by the legislative and executive branches, 
Congress does not really delegate legislative power when it authorizes 
the President to exercise the war power in a prescribed manner, a view 
which entirely overlooks the fact that the Constitution expressly vests 
the war power as a legislative power in Congress. Second, it is 
suggested that Congress' power to delegate in wartime is limited as in 
other situations but that the

[[Page 323]]
existence of a state of war is a factor weighing in favor of the 
validity of the delegation.

        \1518\Lichter v. United States, 334 U.S. 742, 779 (1948).
        \1519\For an extensive consideration of this subject in the 
context of the President's redelegation of it, see N. Grundstein, 
Presidential Delegation of Authority in Wartime (Pittsburgh: 1961).
        \1520\In the Selective Draft Law Cases, 245 U.S. 366, 389 
(1918), the objection was dismissed without discussion. The issue was 
decided by reference to peacetime precedents in Yakus v. United States, 
321 U.S. 414, 424 (1944).

        The first theory was fully stated by Justice Bradley in Hamilton 
v. Dillin,\1521\ upholding a levy imposed by the Secretary of the 
Treasury pursuant to an act of Congress. To the argument that the levy 
was a tax the fixing of which Congress could not delegate, Justice 
Bradley noted that the power exercised ``does not belong to the same 
category as the power to levy and collect taxes, duties, and excises. It 
belongs to the war powers of the Government. . . .''\1522\

        \1521\21 Wall. (88 U.S.) 73 (1875).
        \1522\Id., 96-97. Cf. United States v. Chemical Foundation, 272 
U.S. 1 (1926).

        Both theories found expression in different passages of Chief 
Justice Stone's opinion in Hirabayashi v. United States,\1523\ upholding 
executive imposition of a curfew on Japanese-Americans pursuant to 
legislative delegation. On the one hand, he spoke to Congress and the 
Executive, ``acting in cooperation,'' to impose the curfew,\1524\ while 
on the other hand, he noted that a delegation in which Congress has 
determined the policy and the rule of conduct, leaving to the Executive 
the carry-out of the matter, is permissible delegation.\1525\

        \1523\320 U.S. 81 (1943).
        \1524\Id., 91-92, 104.
        \1525\Id., 104.

        A similar ambiguity is found in Lichter v. United States,\1526\ 
upholding the Renegotiation Act, but taken as a whole the Court there 
espoused the second theory. ``The power [of delegation] is especially 
significant in connection with constitutional war powers under which the 
exercise of broad discretion as to method to be employed may be 
essential to an effective use of its war powers by Congress. The degree 
to which Congress must specify its policies and standards in order that 
the administrative authority granted may not be an unconstitutional 
delegation of its own legislative power is not capable of precise 
definition. . . . Thus, while the constitutional structure and controls 
of our Government are our guides equally in war and in peace, they must 
be read with the realistic purposes of the entire instrument fully in 
mind.''\1527\ The Court then examined the exigencies of war and 
concluded that the delegation was valid.\1528\

        \1526\334 U.S. 742 (1948).
        \1527\Id., 778-779, 782.
        \1528\Id., 778-783.

[[Page 324]]


      Constitution and the Advance of the Flag

        Theater of Military Operations.--Military law to the exclusion 
of constitutional limitations otherwise applicable is the rule in the 
areas in which military operations are taking place. This view was 
assumed by all members of the Court in Ex parte Milligan,\1529\ in which 
the trial by a military commission of a civilian charged with disloyalty 
in a part of the country remote from the theater of military operations 
was held invalid. Although unanimous in the result, the Court divided 
five-to-four on the ground of decision. The point of disagreement was 
over which department of the Government had authority to say with 
finality what regions lie within the theater of military operations. The 
majority claimed this function for the courts and asserted that an area 
in which the civil courts were open and functioning does not;\1530\ the 
minority argued that the question was for Congress' determination.\1531\ 
The entire Court rejected the Government's contention that the 
President's determination was conclusive in the absence of restraining 

        \1529\4 Wall. (71 U.S.) 2 (1866).
        \1530\Id., 127.
        \1531\Id., 132, 138.
        \1532\Id., 121, 139-142.

        Similarly, in Duncan v. Kahanamoku,\1533\ the Court declared 
that the authority granted by Congress to the territorial governor of 
Hawaii to declare marital law under certain circumstances, which he 
exercised in the aftermath of the attack on Pearl Harbor, did not 
warrant the supplanting of civil courts with military tribunals and the 
trial of civilians for civilian crimes in these military tribunals at a 
time when no obstacle stood in the way of the operation of the civil 
courts, except, of course, the governor's order.

        \1533\327 U.S. 304 (1946).

        Enemy Country.--It has seemed reasonably clear that the 
Constitution does not follow the advancing troops into conquered 
territory. Persons in such territory have been held entirely beyond the 
reach of constitutional limitations and subject to the laws of war as 
interpreted and applied by the Congress and the President.\1534\ ``What 
is the law which governs an army invading an enemy's country?'' the 
Court asked in Dow v. Johnson.\1535\ ``It is not the civil law of the 
invaded country; it is not the civil law of the conquering country; it 
is military law--the law of war--and its su

[[Page 325]]
premacy for the protection of the officers and soldiers of the army, 
when in service in the field in the enemy's country, is as essential to 
the efficiency of the army as the supremacy of the civil law at home, 
and, in time of peace, is essential to the preservation of liberty.''

        \1534\New Orleans v. The Steamship Co., 20 Wall. (87 U.S.) 387 
(1874); Santiago v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 
343 U.S. 341 (1952).
        \1535\100 U.S. 158, 170 (1880).

        These conclusions follow not only from the usual necessities of 
war but as well from the Court's doctrine that the Constitution is not 
automatically applicable in all territories acquired by the United 
States, the question turning upon whether Congress has made the area 
``incorporated'' or ``unincorporated'' territory,\1536\ but in Reid v. 
Covert,\1537\ Justice Black in a plurality opinion of the Court asserted 
that wherever the United States acts it must do so only ``in accordance 
with all the limitation imposed by the Constitution. . . . 
[C]onstitutional protections for the individual were designed to 
restrict the United States Government when it acts outside of this 
country, as well as at home.''\1538\ The case, however, involved the 
trial of a United States citizen abroad and the language quoted was not 
subscribed to by a majority of the Court; thus, it must be regarded as a 
questionable rejection of the previous line of cases.\1539\

        \1536\De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United 
States, 182 U.S. 222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); 
Dorr v. United States, 195 U.S. 138 (1904).
        \1537\354 U.S. 1 (1957).
        \1538\Id., 6, 7.
        \1539\For a comprehensive treatment, preceding Reid v. Covert, 
of the matter in the context of the post-War war crimes trials, see 
Fairman, Some New Problems of the Constitution Following the Flag, 1 
Stan. L. Rev. 587 (1949).

        Enemy Property.--In Brown v. United States,\1540\ Chief Justice 
Marshall dealt definitively with the legal position of enemy property 
during wartime. He held that the mere declaration of war by Congress 
does not effect a confiscation of enemy property situated within the 
territorial jurisdiction of the United States, but the right of Congress 
by further action to subject such property to confiscation was asserted 
in the most positive terms. As an exercise of the war power, such 
confiscation was held not subject to the restrictions of the Fifth and 
Sixth Amendment. Since such confiscation is unrelated to the personal 
guilt of the owner, it is immaterial whether the property belongs to an 
alien, a neutral, or even to a citizen. The whole doctrine of 
confiscation is built upon the foundation that it is an instrument of 
coercion, which, by depriving an enemy of property within the reach of 
his power, whether within his territory or outside it, impairs his 
ability to resist the

[[Page 326]]
confiscating government while at the same time it furnishes to that 
government means for carrying on the war.\1541\

        \1540\8 Cr. (12 U.S.) 110 (1814). See also Conrad v. Waples, 96 
U.S. 279 (1878).
        \1541\Miller v. United States, 11 Wall. (78 U.S.) 268 (1871); 
Steehr v. Wallace, 255 U.S. 239 (1921); Central Trust Co. v. Garvan, 254 
U.S. 554 (1921); United States v. Chemical Foundation, 272 U.S. 1 
(1926); Silesian-American Corp. v. Clark, 332 U.S. 469 (1947); Cities 
Service Co. v. McGrath, 342 U.S. 330 (1952); Handelsbureau La Mola v. 
Kennedy, 370 U.S. 940 (1962); cf. Honda v. Clark, 386 U.S. 484 (1967).

        Prizes of War.--The power of Congress with respect to prizes is 
plenary; no one can have any interest in prizes captured except by 
permission of Congress.\1542\ Nevertheless, since international law is a 
part of our law, the Court will administer it so long as it has not been 
modified by treaty or by legislative or executive action. Thus, during 
the Civil War, the Court found that the Confiscation Act of 1861, and 
the Supplementary Act of 1863, which, in authorizing the condemnation of 
vessels, made provision for the protection of interests of loyal 
citizens, merely created a municipal forfeiture and did not override or 
displace the law of prize. It decided, therefore, that when a vessel was 
liable to condemnation under either law, the Government was at liberty 
to proceed under the most stringent rules of international law, with the 
result that the citizen would be deprived of the benefit of the 
protective provisions of the statute.\1543\ Similarly, when Cuban ports 
were blockaded during the Spanish-American War, the Court held, over the 
vigorous dissent of three of its members, that the rule of international 
law exempting unarmed fishing vessels from capture was applicable in the 
absence of any treaty provision, or other public act of the Government 
in relation to the subject.\1544\

        \1542\The Siren, 13 Wall. (80 U.S.) 389 (1871).
        \1543\The Hampton, 5 Wall. (72 U.S.) 372, 376 (1867).
        \1544\The Paquete Habana, 175 U.S. 677, 700, 711 (1900).
      The Constitution at Home in Wartime

        Personal Liberty.--``The Constitution of the United States is a 
law for rulers and people, equally in war and in peace, and covers with 
the shield of its protection all classes of men, at all times, and under 
all circumstances. No doctrine, involving more pernicious consequences, 
was ever invented by the wit of man than that any of its provisions can 
be suspended during any of the great exigencies of government. Such a 
doctrine leads directly to anarchy or despotism, but the theory of 
necessity on which it is based is false; for the government, within the 
Constitution, has all the powers granted to it, which are necessary to 
preserve its existence; as has been happily proved by the result of the 
great effort to throw off its just authority.''\1545\

        \1545\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 120-121 (1866).

[[Page 327]]

        Ex parte Milligan, from which these words are quoted, is justly 
deemed one of the great cases undergirding civil liberty in this country 
in times of war or other great crisis, holding that except in areas in 
which armed hostilities have made enforcement of civil law impossible 
constitutional rights may not be suspended and civilians subjected to 
the vagaries of military justice. Yet, the words were uttered after the 
cessation of hostilities, and the Justices themselves recognized that 
with the end of the shooting there arose the greater likelihood that 
constitutional rights could be and would be observed and that the Court 
would require the observance.\1546\ This pattern recurs with each 
critical period.

        \1546\``During the late wicked Rebellion, the temper of the 
times did not allow that calmness in deliberation and discussion so 
necessary to a correct conclusion of a purely judicial question. Then, 
considerations of safety were mingled with the exercise of power; and 
feelings and interests prevailed which were happily terminated. Now that 
the public safety is assured, this question, as well as all others, can 
be discussed and decided without passion or the admixture of any element 
not required to form a legal judgment.'' Id., 109 (emphasis by Court).

        That the power of Congress to punish seditious utterances in 
wartime is limited by the First Amendment was assumed by the Court in a 
series of cases,\1547\ in which it nonetheless affirmed conviction for 
violations of the Espionage Act of 1917.\1548\ The Court also upheld a 
state law making it an offense for persons to advocate that citizens of 
the State should refuse to assist in prosecuting war against enemies of 
the United States.\1549\ Justice Holmes matter-of-factly stated the 
essence of the pattern that we have mentioned. ``When a nation is at war 
many things that might be said in time of peace are such a hindrance to 
its effort that their utterance will not be endured so long as men fight 
and that no Court could regard them as protected by any constitutional 
right.''\1550\ By far, the most dramatic restraint of personal liberty 
imposed during World War II was the detention and relocation of the 
Japanese residents of the Western States, including those who were 
native-born citizens of the United States. When various phases of this 
program were challenged, the Court held that in order to prevent 
espionage and sabotage, the authorities could restrict the movement of 
these persons by a curfew order,\1551\ even by a regulation excluding 
them from defined areas,\1552\ but that a citizen of Japanese ances

[[Page 328]]
try whose loyalty was conceded could not be detained in a relocation 

        \1547\Schneck v. United States, 249 U.S. 47 (1919); Debs v. 
United States, 249 U.S. 211 (1919); Surgarman v. United States, 249 U.S. 
182 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Abrams v. 
United States, 250 U.S. 616 (1919).
        \1548\40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918).
        \1549\Gilbert v. Minnesota, 254 U.S. 325 (1920).
        \1550\Schenck v. United States, 249 U.S. 47, 52 (1919).
        \1551\Hirabayashi v. United States, 320 U.S. 81 (1943).
        \1552\Korematsu v. United States, 323 U.S. 214 (1944).
        \1553\Ex parte Endo, 323 U.S. 283 (1944).

        A mixed pattern emerges from an examination of the Cold War 
period. Legislation designed to regulate and punish the organizational 
activities of the Communist Party and its adherents was at first 
upheld\1554\ and then in a series of cases was practically 
vitiated.\1555\ Against a contention that Congress' war powers had been 
utilized to achieve the result, the Court struck down for the second 
time in history a congressional statute as an infringement of the First 
Amendment.\1556\ It voided a law making it illegal for any member of a 
``communist-action organization'' to work in a defense facility.\1557\ 
The majority reasoned that the law overbroadly required a person to 
choose between his First Amendment-protected right of association and 
his right to hold a job, without attempting to distinguish between those 
persons who constituted a threat and those who did not.\1558\

        \1554\E.g., Dennis v. United States, 341 U.S. 494 (1951); 
Communist Party v. Subversive Activities Control Board, 367 U.S. 1 
(1961); American Communications Association v. Douds, 339 U.S. 382 
        \1555\E.g., Yates v. United States, 354 U.S. 298 (1957); 
Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965); 
United States v. Brown, 381 U.S. 437 (1965).
        \1556\United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker 
v. Secretary of State, 378 U.S. 500 (1964). And see Schneider v. Smith, 
390 U.S. 17 (1968).
        \1557\Sec. 5(a)(1)(D) of the Subversive Control Act of 1950, 64 
Stat 992, 50 U.S.C. Sec. 784(a)(1)(D).
        \1558\Id., 389 U.S., 264-266. Justices Harlan and White 
dissented, contending that the right of association should have been 
balanced against the public interest and finding the weight of the 
latter the greater. Id., 282.

        On the other hand, in New York Times Co. v. United States,\1559\ 
a majority of the Court agreed that in appropriate circumstances the 
First Amendment would not preclude a prior restraint of publication of 
information that might result in a sufficient degree of harm to the 
national interest, although a different majority concurred in denying 
the Government's request for an injunction in that case.\1560\

        \1559\403 U.S. 713 (1971).
        \1560\The result in the case was reached by a six-to-three 
majority. The three dissenters, Chief Justice Burger, id., 748, Justice 
Harlan, id., 752, and Justice Blackmun, id., 759, would have granted an 
injunction in the case; Justices Stewart and White, id., 727, 730, would 
not in that case but could conceive of cases in which they would.

        Enemy Aliens.--The Alien Enemy Act of 1798 authorized the 
President to deport any alien or to license him to reside within the 
United States at any place to be designated by the President.\1561\ 
Though critical of the measure, many persons conceded its con

[[Page 329]]
stitutionality on the theory that Congress' power to declare war carried 
with it the power to treat the citizens of a foreign power against which 
war has been declared as enemies entitled to summary justice.\1562\ A 
similar statute was enacted during World War I\1563\ and was held valid 
in Ludecke v. Watkins.\1564\

        \1561\1 Stat. 577 (1798).
        \1562\6 Writing of James Madison, G. Hunt ed. (New York: 1904), 
        \1563\40 Stat. 531 (1918), 50 U.S.C. Sec. 21.
        \1564\335 U.S. 160 (1948).

        During World War II, the Court unanimously upheld the power of 
the President to order to trial before a military tribunal German 
saboteurs captured within this Country.\1565\ Enemy combatants, said 
Chief Justice Stone, who without uniforms come secretly through the 
lines during time of war, for the purpose of committing hostile acts, 
are not entitled to the status of prisoners of war but are unlawful 
combatants punishable by military tribunals.

        \1565\Ex parte Quirin, 317 U.S. 1 (1942).

        Eminent Domain.--An often-cited dictum uttered shortly after the 
Mexican War asserted the right of an owner to compensation for property 
destroyed to prevent its falling into the hands of the enemy, or for 
that taken for public use.\1566\ In United States v. Russell,\1567\ 
decided following the Civil War, a similar conclusion was based squarely 
on the Fifth Amendment, although the case did not necessarily involve 
the point. Finally, in United States v. Pacific Railroad,\1568\ also a 
Civil War case, the Court held that the United States was not 
responsible for the injury or destruction of private property by 
military operations, but added that it did not have in mind claims for 
property of loyal citizens taken for the use of the national forces. 
``In such cases,'' the Court said, ``it has been the practice of the 
government to make compensation for the property taken. . . . although 
the seizure and appropriation of private property under such 
circumstances by the military authorities may not be within the terms of 
the constitutional clauses.''\1569\

        \1566\Mitchell v. Harmony, 13 How. (54 U.S.) 115, 134 (1852).
        \1567\13 Wall. (80 U.S.) 623, 627 (1871).
        \1568\120 U.S. 227 (1887).
        \1569\Id., 239.

        Meantime, however, in 1874, a committee of the House of 
Representatives, in an elaborate report on war claims growing out of the 
Civil War, had voiced the opinion that the Fifth Amendment embodies the 
distinction between a taking of property in the course of military 
operations or other urgent military necessity, and other takings for war 
purposes, and required compensation of owners in the latter class of 
cases.\1570\ In determining what constitutes just compensation for 
property requisitioned for war purposes during

[[Page 330]]
World War II, the Court has assumed that the Fifth Amendment is 
applicable to such takings.\1571\ But as to property seized and 
destroyed to prevent its use by the enemy, it has relied on the 
principle enunciated in United States v. Pacific Railroad as 
justification for the conclusion that owners thereof are not entitled to 

        \1570\H.R. Rept. No. 262, 43d Cong., 1st Sess. (1874), 39-40.
        \1571\United States v. Commodities Trading Corp., 339 U.S. 121 
(1950); United States v. Toronto Nav. Co., 338 U.S. 396 (1949); Kimball 
Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Cors, 
337 U.S. 325 (1949); United States v. Felin & Co., 334 U.S. 624 (1948); 
United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. 
General Motors Corp., 323 U.S. 373 (1945).
        \1572\United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). 
Justices Douglas and Black dissented.

        Rent and Price Controls.--Even at a time when the Court was 
utilizing substantive due process to void economic regulations, it 
generally sustained such regulations in wartime. Thus, shortly following 
the end of World War I, it sustained, by a narrow margin, a rent control 
law for the District of Columbia, which not only limited permissible 
rent increases but also permitted existing tenants to continue in 
occupancy provided they paid rent and observed other stipulated 
conditions.\1573\ Justice Holmes for the majority conceded in effect 
that in the absence of a war emergency the legislation might transcend 
constitutional limitations\1574\ but noted that ``a public exigency will 
justify the legislature in restricting property rights in land to a 
certain extent without compensation.''\1575\

        \1573\Block v. Hirsh, 256 U.S. 135 (1921).
        \1574\But quaere in the light of Nebbia v. New York, 291 U.S. 
502 (1934), Olsen v. Nebraska ex rel. Western Reference and Bond 
Association, 313 U.S. 236 (1941), and their progeny.
        \1575\Block v. Hirsh, 256 U.S. 135, 156 (1921).

        During World War II and thereafter, economic controls were 
uniformly sustained.\1576\ An apartment house owner who complained that 
he was not allowed a ``fair return'' on the property was dismissed with 
the observation that ``a nation which can demand the lives of its men 
and women in the waging of . . . war is under no constitutional 
necessity of providing a system of price control . . . which will assure 
each landlord a `fair return' on his property.''\1577\ The Court also 
held that rental ceilings could be established without a prior hearing 
when the exigencies of national security precluded the delay which would 

        \1576\Yakus v. United States, 321 U.S. 414 (1944); Bowles v. 
Willingham, 321 U.S. 503 (1944); Lockerty v. Phillips, 319 U.S. 182 
(1943); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947); 
Lichter v. United States, 334 U.S. 742 (1948).
        \1577\Bowles v. Willingham, 321 U.S. 503, 519 (1944).
        \1578\Id., 521. The Court stressed, however, that Congress had 
provided for judicial review after the regulations and orders were made 


[[Page 331]]

        But in another World War I case, the Court struck down a statute 
which penalized the making of ``any unjust or unreasonable rate or 
charge in handling . . . any necessaries''\1579\ as repugnant to the 
Fifth and Sixth Amendments in that it was so vague and indefinite that 
it denied due process and failed to give adequate notice of what acts 
would violate it.\1580\

        \1579\Act of October 22, 1919, 2, 41 Stat. 297.
        \1580\United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).
                                  Cls. 15 and 16--Power over the Militia

  Clause 15. The Congress shall have Power * * * To provide for calling 
forth the Militia to execute the Laws of the Union, suppress 
Insurrections and repel Invasions.
  Clause 16. The Congress shall have Power * * * To provide for 
organizing, arming, and disciplining, the Militia, and for governing 
such Part of them as may be employed in the Service of the United 
States, reserving to the States respectively, the Appointment of the 
Officers, and the Authority of training the Militi according to the 
discipline prescribed by Congress.

                           THE MILITIA CLAUSE

      Calling Out the Militia

        The States as well as Congress may prescribe penalties for 
failure to obey the President's call of the militia. They also have a 
concurrent power to aid the National Government by calls under their own 
authority, and in emergencies may use the militia to put down armed 
insurrection.\1581\ The Federal Government may call out the militia in 
case of civil war; its authority to suppress rebellion is found in the 
power to suppress insurrection and to carry on war.\1582\ The act of 
February 28, 1795,\1583\ which delegated to the President the power to 
call out the militia, was held constitutional.\1584\ A militiaman who 
refused to obey such a call was not ``employed in the service of the 
United States so as to be subject

[[Page 332]]
to the article of war,'' but was liable to be tried for disobedience of 
the act of 1795.\1585\

        \1581\Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed, 
Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820).
        \1582\Texas v. White, 7 Wall. (74 U.S.) 700 (1869); Tyler v. 
Defrees, 11 Wall. (78 U.S.) 331 (1871).
        \1583\1 Stat. 424 (1795), 10 U.S.C. Sec. 332.
        \1584\Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32 (1827).
        \1585\Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820); Martin v. 
Mott, 12 Wheat. (25 U.S.) 19 (1827).
      Regulation of the Militia

        The power of Congress over the militia ``being unlimited, except 
in the two particulars of officering and training them . . . it may be 
exercised to any extent that may be deemed necessary by Congress. . . . 
The power of the state government to legislate on the same subjects, 
having existed prior to the formation of the Constitution, and not 
having been prohibited by that instrument, it remains with the States, 
subordinate nevertheless to the paramount law of the General Government 
. . .''\1586\ Under the National Defense Act of 1916,\1587\ the militia, 
which hitherto had been an almost purely state institution, was brought 
under the control of the National Government. The term ``militia of the 
United States'' was defined to comprehend ``all able-bodied male 
citizens of the United States and all other able-bodied males who have 
. . . declared their intention to become citizens of the United 
States,'' between the ages of eighteen and forty-five. The act 
reorganized the National Guard, determined its size in proportion to the 
population of the several States, required that all enlistments be for 
``three years in service and three years in reserve,'' limited the 
appointment of officers to those who ``shall have successfully passed 
such tests as to . . . physical, moral and professional fitness as the 
President shall prescribe,'' and authorized the President in certain 
emergencies to ``draft into the military service of the United States to 
serve therein for the period of the war unless sooner discharged, and 
all members of the National Guard and National Guard Reserve,'' who 
thereupon should ``stand discharged from the militia.''\1588\

        \1586\Houston v. Moore, 5 Wheat. (18 U.S.) 1, 16 (1820). 
Organizing and providing for the militia being constitutionally 
committed to Congress and statutorily shared with the Executive, the 
judiciary is precluded from exercising oversight over the process, 
Gilligan v. Morgan, 413 U.S. 1 (1973), although wrongs committed by 
troops are subject to judicial relief in damages. Scheuer v. Rhodes, 416 
U.S. 233 (1974).
        \1587\39 Stat. 166, 197, 198, 200, 202, 211 (1916), codified in 
sections of Titles 10 & 32. See Wiener, The Militia Clause of the 
Constitution, 54 Harv. L. Rev. 181 (1940).
        \1588\Military and civilian personnel of the National Guard are 
state, rather than federal, employees and the Federal Government is thus 
not liable under the Tort Claims Act for their negligence. Maryland v. 
United States, 381 U.S. 41 (1965).

        The militia clauses do not constrain Congress in raising and 
supporting a national army. The Court has approved the system of ``dual 
enlistment,'' under which persons enlisted in state militia (National 
Guard) units simultaneously enlist in the National

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Guard of the United States, and, when called to active duty in the 
federal service, are relieved of their status in the state militia. 
Consequently, the restrictions in the first militia clause have no 
application to the federalized National Guard; there is no 
constitutional requirement that state governors hold a veto power over 
federal duty training conducted outside the United States or that a 
national emergency be declared before such training may take 

        \1589\Perpich v. Department of Defense, 496 U.S. 434 (1990).

  Clause 17. Congress shall have power * * * To exercise exclusive 
Legislation in all Cases whatsoever, over such District (not exceeding 
ten Miles square) as may, by Cession of particular States, and the 
Acceptance of Congress, become the Seat of Government of the United 
States, and to exercise like Authority over all Places purchased by the 
Consent of the Legislature of the State in which the same shall be, for 
the Erection of Forts, Magazines, Arsenals, dock-Yards, and other 
needful Buildings.

                         SEAT OF THE GOVERNMENT

        The Convention was moved to provide for the creation of a site 
in which to locate the Capital of the Nation, completely removed from 
the control of any State, because of the humiliation suffered by the 
Continental Congress on June 21, 1783. Some eighty soldiers, unpaid and 
weary, marched on the Congress sitting in Philadelphia, physically 
threatened and verbally abused the members, and caused the Congress to 
flee the City when neither municipal nor state authorities would take 
action to protect the members.\1590\ Thus, Madison noted that ``[t]he 
indispensable necessity of complete authority at the seat of government, 
carries its own evidence with it. . . . Without it, not only the public 
authority might be insulted and its proceedings interrupted with 
impunity, but a dependence of the members of the general government on 
the State comprehending the seat of government, for protection in the 
exercise of their duty, might bring on the national council an imputa

[[Page 334]]
tion of awe or influence, equally dishonorable to the government and 
dissatisfactory to the other members of the confederacy.''\1591\

        \1590\J. Fiske, The Critical Period of American History, 1783-
1789 (Boston: 1888), 112-113; W. Tindall, The Origin and Government of 
the District of Columbia (Washington: 1903), 31-36.
        \1591\The Federalist, No. 43 (J. Cooke ed. 1961), 288-289. See 
also 3 J. Story, Commentaries on the Constitution of the United States 
(Boston: 1833), 1213, 1214.

        The actual site was selected by compromise, Northerners 
accepting the Southern-favored site on the Potomac in return for 
Southern support for a Northern aspiration, assumption of Revolutionary 
War debts by the National Government.\1592\ Maryland and Virginia both 
authorized the cession of territory\1593\ and Congress accepted.\1594\ 
Congress divided the District into two counties, Washington and 
Alexandria, and provided that the local laws of the two States should 
continue in effect.\1595\ It also established a circuit court and 
provided for the appointment of judicial and law enforcement 

        \1592\W. Tindall, The Origin and Government of the District of 
Columbia (Washington: 1903), 5-30.
        \1593\Maryland Laws 1798, ch. 2, p. 46; 13 Laws of Virginia 43 
(Hening 1789).
        \1594\Act of July 16, 1790, 1 Stat. 130. In 1846, Congress 
authorized a referendum in Alexandria County on the question of 
retroceding that portion to Virginia. The voters approved and the area 
again became part of Virginia. Laws of Virginia 1845-46, ch. 64, p. 50; 
Act of July 9, 1846, 9 Stat. 35; Proclamation of September 7, 1846; 9 
Stat. 1000. Constitutional questions were raised about the retrocession 
but suit did not reach the Supreme Court until some 40 years later and 
the Court held that the passage of time precluded the raising of the 
question. Phillips v. Payne, 92 U.S. 130 (1875).
        \1595\Act of February 27, 1801, 2, 2 Stat. 103. The declaration 
of the continuing effect of state law meant that law in the District was 
frozen as of the date of cession, unless Congress should change it, 
which it seldom did. For some of the problems, see Tayloe v. Thompson, 5 
Pet. (30 U.S.) 358 (1831); Ex parte Watkins, 7 Pet. (32 U.S.) 568 
(1833); Stelle v. Carroll, 12 Pet. (37 U.S.) 201 (1838); Van Ness v. 
United States Bank, 13 Pet. (38 U.S.) 17 (1839); United States v. 
Eliason, 16 Pet. (41 U.S.) 291 (1842).
        \1596\Act of March 3, 1801, 1, 2 Stat. 115.

        There seems to have been no consideration, at least none 
recorded, given at the Convention or in the ratifying conventions to the 
question of the governance of the citizens of the District.\1597\ 
Madison in The Federalist did assume that the inhabitants ``will have 
had their voice in the election of the government which is to exercise 
authority over them, as a municipal legislature for all local purposes, 
derived from their own suffrages, will of course be allowed them. 
. . .''\1598\ Although there was some dispute about the constitutional 
propriety of permitting local residents a measure of ``home rule,'' to 
use the recent term,\1599\ almost from the first there

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were local elections provided for. In 1802, the District was divided 
into five divisions, in some of which the governing officials were 
elected; an elected mayor was provided in 1820. District residents 
elected some of those who governed them until this form of government 
was swept away in the aftermath of financial scandals in 1874\1600\ and 
replaced with presidentially appointed Commission in 1878.\1601\ The 
Commission lasted until 1967 when it was replaced by an appointed Mayor-
Commissioner and an appointed city council.\1602\ In recent years, 
Congress provided for a limited form of self-government in the District, 
with the major offices filled by election.\1603\ District residents vote 
for President and Vice President\1604\ and elect a nonvoting delegate to 
Congress.\1605\ An effort by constitutional amendment to confer voting 
representation in the House and Senate failed of ratification.\1606\

        \1597\The objections raised in the ratifying conventions and 
elsewhere seemed to have consisted of prediction of the perils to the 
Nation of setting up the National Government in such a place. 3 J. 
Story, Commentaries on the Constitution of the United States (Boston: 
1833), 1215, 1216.
        \1598\The Federalist, No. 43 (J. Cooke ed. 1961), 289.
        \1599\Such a contention was cited and rebutted in 3 J. Story, 
Commentaries on the Constitution of the United States (Boston: 1833), 
        \1600\Act of May 3, 1802, 2 Stat. 195; Act of May 15, 1820, 3 
Stat. 583; Act of February 21, 1871, 16 Stat. 419; Act of June 20, 1874, 
18 Stat. 116. The engrossing story of the postwar changes in the 
government is related in W. Whyte, The Uncivil War: Washington During 
the Reconstruction (Washington: 1958).
        \1601\Act of June 11, 1878, 20 Stat. 103.
        \1602\Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, 
reprinted as appendix to District of Columbia Code, Title I.
        \1603\District of Columbia Self-Government and Governmental 
Reorganization Act, P.L. 93-198, 87 Stat. 774.
        \1604\Twenty-third Amendment.
        \1605\P.L. 91-405, 84 Stat. 848, D.C. Code, Sec. 1-291.
        \1606\H.J. Res. 554, 95th Congress, passed the House on March 2, 
1978, and the Senate on August 22, 1978, but only 16 States had ratified 
before the expiration after seven years of the proposal.

        Constitutionally, it appears that Congress is neither required 
to provide for a locally elected government\1607\ nor precluded from 
delegating its powers over the District to an elective local 
government.\1608\ The Court has indicated that the ``exclusive'' 
jurisdiction granted was meant to exclude any question of state power 
over the area and was not intended to require Congress to exercise all 
powers itself.\1609\

        \1607\Loughborough v. Blake, 5 Wheat. (18 U.S.) 317 (1820); 
Heald v. District of Columbia, 259 U.S. 114 (1922).
        \1608\District of Columbia v. John R. Thompson Co., 346 U.S. 100 
(1953). The case upheld the validity of ordinances enacted by the 
District governing bodies in 1872 and 1873 prohibiting racial 
discrimination in places of public accommodations.
        \1609\Id., 109-110. See also Thompson v. Lessee of Carroll, 22 
How. (63 U.S.) 422 (1860); Stoutenburgh v. Hennick, 129 U.S. 141 (1889).

        Chief Justice Marshall for the Court held in Hepburn v. 
Ellzey\1610\ that the District of Columbia was not a State within the 
meaning of the diversity jurisdiction clause of Article III. This

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view, adhered to for nearly a century and a half,\1611\ was overturned 
by the Court in 1949 upholding the constitutionality of a 1940 statute 
authorizing federal courts to take jurisdiction of nonfederal 
controversies between residents of the District of Columbia and the 
citizens of a State.\1612\ The decision was by a five to four division, 
but the five in the majority disagreed among themselves on the reasons. 
Three thought the statute to be an appropriate exercise of the power of 
Congress to legislate for the District of Columbia pursuant to this 
clause without regard to Article III.\1613\ Two others thought that 
Hepburn v. Ellzey had been erroneously decided and would have overruled 
it.\1614\ But six Justices rejected the former rationale, and seven 
Justices rejected the latter one; since five Justices agreed, however, 
that the statute was constitutional, it was sustained.

        \1610\2 Cr. (6 U.S.) 445 (1805); see also Sere v. Pitot, 6 Cf. 
(10 U.S.) 332 (1810); New Orleans v. Winter, 1 Wheat. (14 U.S.) 91 
(1816). The District was held to be a State within the terms of a 
treaty. Geofroy v. Riggs, 133 U.S. 258 (1890).
        \1611\Barney v. City of Baltimore, 6 Wall. (73 U.S.) 280 (1868); 
Hooe v. Jamieson, 166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 
        \1612\National Mutual Ins. Co. v. Tidewater Transfer Co., 337 
U.S. 582 (1949).
        \1613\Id., 588-600 (Justices Jackson, Black and Burton).
        \1614\Id., 604 (Justices Rutledge and Murphy). The dissents were 
by Chief Justice Vinson, id., 626, joined by Justice Douglas, and by 
Justice Frankfurter, id., 646, joined by Justice Reed.

        It is not disputed that the District is a part of the United 
States and that its residents are entitled to all the guarantees of the 
United States Constitution including the privilege of trial by 
jury\1615\ and of presentment by a grand jury.\1616\ Legislation 
restrictive of liberty and property in the District must find 
justification in facts adequate to support like legislation by a State 
in the exercise of its police power.\1617\

        \1615\Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction 
Co. v. Hof, 174 U.S. 1 (1899).
        \1616\United States v. Moreland, 258 U.S. 433 (1922).
        \1617\Wright v. Davidson, 181 U.S. 371, 384 (1901); cf. Adkins 
v. Children's Hospital, 261 U.S. 525 (1923), overruled in West Coast 
Hotel Co. v. Parrish, 300 U.S. 379 (1937).

        Congress possesses over the District of Columbia the blended 
powers of a local and national legislature.\1618\ This fact means that 
in some respects ordinary constitutional restrictions do not operate; 
thus, for example, in creating local courts of local jurisdiction in the 
District, Congress acts pursuant to its legislative powers under clause 
17 and need not create courts that comply that Article III court 
requirements.\1619\ And when legislating for the District Con

[[Page 337]]
gress remains the legislature of the Union, so that it may give its 
enactments nationwide operation to the extent necessary to make them 
locally effective.\1620\

        \1618\Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 
524, 619 (1838): Shoemaker v. United States, 147 U.S. 282, 300 (1893); 
Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435 (1932); 
O'Donoghue v. United States, 289 U.S. 516, 518 (1933).
        \1619\In the District of Columbia Court Reform and Criminal 
Procedure Act of 1970, P.L. 91-358, 111, 84 Stat. 475, D.C. Code, 
Sec. 11-101, Congress specifically declared it was acting pursuant to 
Article I in creating the Superior Court and the District of Columbia 
Court of Appeals and pursuant to Article III in continuing the United 
States District Court and the United States Court of Appeals for the 
District of Columbia. The Article I courts were sustained in Palmore v. 
United States, 411 U.S. 389 (1973). See also Swain v. Pressley, 430 U.S. 
372 (1977). The latter, federal courts, while Article III courts, 
traditionally have had some non-Article III functions imposed on them, 
under the ``hybrid'' theory announced in O'Donoghue v. United States, 
289 U.S. 516 (1933). E.g., Hobson v. Hansen, 265 F. Supp. 902 (D.C.D.C. 
1967), app. dismd., 393 U.S. 801 (1968) (power then vested in District 
Court to appoint school board members). See also Keller v. Potomac 
Electric Co., 261 U.S. 428 (1923); Embry v. Palmer, 107 U.S. 3 (1883).
        \1620\Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 428 (1821).



        This clause has been broadly construed to cover all structures 
necessary for carrying on the business of the National Government.\1621\ 
It includes post offices,\1622\ a hospital and a hotel located in a 
national park,\1623\ and locks and dams for the improvement of 
navigation.\1624\ But it does not cover lands acquired for forests, 
parks, ranges, wild life sanctuaries or flood control.\1625\ 
Nevertheless, the Supreme Court has held that a State may convey, and 
the Congress may accept, either exclusive or qualified jurisdiction over 
property acquired within the geographical limits of a State, for 
purposes other than those enumerated in clause 17.\1626\

        \1621\James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).
        \1622\Battle v. United States, 209 U.S. 36 (1908).
        \1623\Arlington Hotel v. Fant, 278 U.S. 439 (1929).
        \1624\James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).
        \1625\Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938).
        \1626\Id., 528.

        After exclusive jurisdiction over lands within a State has been 
ceded to the United States, Congress alone has the power to punish 
crimes committed within the ceded territory.\1627\ Private property 
located thereon is not subject to taxation by the State,\1628\ nor can 
state statutes enacted subsequent to the transfer have any operation 
therein.\1629\ But the local laws in force at the date of cession that 
are protective of private rights continue in force until abro

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gated by Congress.\1630\ Moreover, as long as there is no interference 
with the exclusive jurisdiction of the United States, an area subject 
thereto may be annexed by a municipality.\1631\

        \1627\Battle v. United States, 209 U.S. 36 (1908); Johnson v. 
Yellow Cab Co., 321 U.S. 383 (1944); Bowen v. Johnston, 306 U.S. 19 
        \1628\Surplus Trading Co. v. Cook, 281 U.S. 647 (1930).
        \1629\Western Union Telegraph Co. v. Chiles, 214 U.S. 274 
(1909); Arlington Hotel v. Fant, 278 U.S. 439 (1929); Pacific Coast 
Dairy v. Department of Agriculture, 318 U.S. 285 (1943). The 
Assimilative Crimes Act of 1948, 18 U.S.C. Sec. 13, making applicable to 
a federal enclave a subsequently enacted criminal law of the State in 
which the enclave is situated entails no invalid delegation of 
legislative power to the State. United States v. Sharpnack, 355 U.S. 
286, 294, 296-297 (1958).
        \1630\Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 545 
(1885); Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940).
        \1631\Howard v. Commissioners, 344 U.S. 624 (1953). As Howard 
recognized, such areas of federal property do not cease to be part of 
the State in which they are located and the residents of the areas are 
for most purposes residents of the State. Thus, a State may not 
constitutionally exclude such residents from the privileges of suffrage 
if they are otherwise qualified. Evans v. Cornman, 398 U.S. 419 (1970).
      Duration of Federal Jurisdiction

        A State may qualify its cession of territory by a condition that 
jurisdiction shall be retained by the United States only so long as the 
place is used for specified purposes.\1632\ Such a provision operates 
prospectively and does not except from the grant that portion of a 
described tract which is then used as a railroad right of way.\1633\ In 
1892, the Court upheld the jurisdiction of the United States to try a 
person charged with murder on a military reservation, over the objection 
that the State had ceded jurisdiction only over such portions of the 
area as were used for military purposes and that the particular place on 
which the murder was committed was used solely for farming. The Court 
held that the character and purpose of the occupation having been 
officially established by the political department of the government, it 
was not open to the Court to inquire into the actual uses to which any 
portion of the area was temporarily put.\1634\ A few years later, 
however, it ruled that the lease to a city, for use as a market, of a 
portion of an area which had been ceded to the United States for a 
particular purpose, suspended the exclusive jurisdiction of the United 

        \1632\Palmer v. Barrett, 162 U.S. 399 (1896).
        \1633\United States v. Unzeuta, 281 U.S. 138 (1930).
        \1634\Benson v. United States, 146 U.S. 325, 331 (1892).
        \1635\Palmer v. Barrett, 162 U.S. 399 (1896).

        The question arose whether the United States retains 
jurisdiction over a place, which was ceded to it unconditionally, after 
it has abandoned the use of the property for governmental purposes and 
entered into a contract for the sale thereof to private persons. 
Minnesota asserted the right to tax the equitable interest of the 
purchaser in such land, and the Supreme Court upheld its right to do so. 
The majority assumed that ``the Government's unrestricted transfer of 
property to nonfederal hands is a relinquishment of the exclusive 
legislative power.''\1636\ In separate concurring opinions,

[[Page 339]]
Chief Justice Stone and Justice Frankfurter reserved judgment on the 
question of territorial jurisdiction.\1637\

        \1636\S.R.A., Inc. v. Minnesota, 327 U.S. 558, 564 (1946).
        \1637\Id., 570, 571.
      Reservation of Jurisdiction by States

        For more than a century the Supreme Court kept alive, by 
repeated dicta,\1638\ the doubt expressed by Justice Story ``whether 
Congress are by the terms of the Constitution, at liberty to purchase 
lands for forts, dockyards, etc., with the consent of a State 
legislature, where such consent is so qualified that it will not justify 
the `exclusive legislation' of Congress there. It may well be doubted if 
such consent be not utterly void.''\1639\ But when the issue was 
squarely presented in 1937, the Court ruled that where the United States 
purchases property within a State with the consent of the latter, it is 
valid for the State to convey, and for the United States to accept, 
``concurrent jurisdiction'' over such land, the State reserving to 
itself the right to execute process ``and such other jurisdiction and 
authority over the same as is not inconsistent with the jurisdiction 
ceded to the United States.''\1640\ The holding logically renders the 
second half of clause 17 superfluous. In a companion case, the Court 
ruled further that even if a general state statute purports to cede 
exclusive jurisdiction, such jurisdiction does not pass unless the 
United States accepts it.\1641\

        \1638\Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 532 
(1885); United States v. Unzeuta, 281 U.S. 138, 142 (1930); Surplus 
Trading Co. v. Cook, 281 U.S. 647, 652 (1930).
        \1639\United States v. Cornell, 25 Fed. Cas. 646, 649 (No. 
14,867) (C.C.D.R.I. 1819).
        \1640\James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937).
        \1641\Mason Co. v. Tax Comm. 302 U.S. 186 (1937). See also 
Atkinson v. Tax Comm., 303 U.S. 20 (1938).

  Clause 18. The Congress shall have Power * * * To make all Laws which 
shall be necessary and proper for carrying into Execution the foregoing 
Powers, and all other Powers vested by the Constitution in the 
Government of the United States, or in any Department or Officer 


      Scope of Incidental Powers

        That this clause is an enlargement, not a constriction, of the 
powers expressly granted to Congress, that it enables the lawmakers to 
select any means reasonably adapted to effectuate those

[[Page 340]]
powers, was established by Marshall's classic opinion in McCulloch v. 
Maryland.\1642\ ``Let the end be legitimate,'' he wrote, ``let it be 
within the scope of the Constitution, and all means which are 
appropriate, which are plainly adapted to that end, which are not 
prohibited, but consistent with the letter and spirit of the 
Constitution, are constitutional.''\1643\ Moreover, the provision gives 
Congress a share in the responsibilities lodged in other departments, by 
virtue of its right to enact legislation necessary to carry into 
execution all powers vested in the National Government. Conversely, 
where necessary for the efficient execution of its own powers, Congress 
may delegate some measure of legislative power to other 

        \1642\4 Wheat. (17 U.S.) 316 (1819).
        \1643\Id., 420. This decision had been clearly foreshadowed 
fourteen years earlier by Marshall's opinion in United States v. Fisher, 
2 Cr. (6 U.S.) 358, 396 (1805). Upholding an act which gave priority to 
claims of the United States against the estate of a bankrupt he wrote: 
``The government is to pay the debt of the Union, and must be authorized 
to use the means which appear to itself most eligible to effect that 
object. It has, consequently, a right to make remittance, by bills or 
otherwise, and to take those precautions which will render the 
transaction safe.''
        \1644\Supra, pp. 73-89.
      Operation of Coefficient Clause

        Practically every power of the National Government has been 
expanded in some degree by the coefficient clause. Under its authority 
Congress has adopted measures requisite to discharge the treaty 
obligations of the nation;\1645\ it has organized the federal judicial 
system and has enacted a large body of law defining and punishing 
crimes. Effective control of the national economy has been made possible 
by the authority to regulate the internal commerce of a State to the 
extent necessary to protect and promote interstate commerce.\1646\ The 
right of Congress to utilize all known and appropriate means for 
collecting the revenue, including the distraint of property for federal 
taxes,\1647\ and its power to acquire property needed for the operation 
of the Government by the exercise of the power of eminent domain,\1648\ 
have greatly extended the range of national power. But the widest 
application of the necessary and proper clause has occurred in the field 
of monetary and fiscal controls. Inasmuch as the various specific powers 
granted by Article I, Sec. 8, do not add up to a general legislative 
power over such matters, the Court has relied heavily upon this clause 
in sustaining

[[Page 341]]
the comprehensive control which Congress has asserted over this 

        \1645\Neely v. Henkel, 180 U.S. 109, 121 (1901). See also 
Missouri v. Holland, 252 U.S. 416 (1920).
        \1646\Supra, pp. 165-167, 203-209.
        \1647\Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 
(59 U.S. 272, 281 (1856).
        \1648\Kohl v. United States, 91 U.S. 367, 373 (1876); United 
States v. Fox, 94 U.S. 315, 320 (1877).
        \1649\Supra., pp. 144-159.
      Definition of Punishment and Crimes

        Although the only crimes which Congress is expressly authorized 
to punish are piracies, felonies on the high seas, offenses against the 
law of nations, treason and counterfeiting of the securities and current 
coin of the United States, its power to create, define, and punish 
crimes and offenses whenever necessary to effectuate the objects of the 
Federal Government is universally conceded.\1650\ Illustrative of the 
offenses which have been punished under this power are the alteration of 
registered bonds,\1651\ the bringing of counterfeit bonds into the 
country,\1652\ conspiracy to injure prisoners in custody of a United 
States marshal,\1653\ impersonation of a federal officer with intent to 
defraud,\1654\ conspiracy to injure a citizen in the free exercise or 
enjoyment of any right or privilege secured by the Constitution or laws 
of the United States,\1655\ the receipt by Government officials of 
contributions from Government employees for political purposes,\1656\ 
advocating the overthrow of the Government by force.\1657\ Part I of 
Title 18 of the United States Code comprises more than 500 sections 
defining penal offenses against the United States.\1658\

        \1650\United States v. Fox, 95 U.S. 670, 672 (1978); United 
States v. Hall, 98 U.S. 343, 357 (1879); United States v. Worrall, 2 
Dall. (2 U.S.) 384, 394 (1798); McCulloch v. Maryland, 4 Wheat. (17 
U.S.) 316 (1819). That this power has been freely exercised is attested 
by the pages of the United States Code devoted to Title 18, entitled 
``Criminal Code and Criminal Procedure.'' In addition numerous 
regulatory measures prescribe criminal penalties for infractions 
        \1651\Ex parte Carll, 106 U.S. 521 (1883).
        \1652\United States v. Marigold, 9 How. (50 U.S.) 560, 567 
        \1653\Logan v. United States, 144 U.S. 263 (1892).
        \1654\United States v. Barnow, 239 U.S. 74 (1915).
        \1655\Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. 
Waddell, 112 U.S. 76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 
(1895); Motes v. United States, 178 U.S. 458, (1900); United States v. 
Mosley, 238 U.S. 383 (1915). See also Rakes v. United States, 212 U.S. 
55 (1909).
        \1656\Ex parte Curtis, 106 U.S. 371 (1882).
        \1657\18 U.S.C. Sec. 2385.
        \1658\See National Commission on Reform of Federal Criminal 
Laws, Final Report (Washington: 1970); National Commission on Reform of 
Federal Criminal Laws, Working Papers (Washington: 1970), 2 vols.
      Chartering of Banks

        As an appropriate means for executing ``the great powers, to lay 
and collect taxes; to borrow money; to regulate commerce; to declare and 
conduct a war; and to raise and support armies . . . ,'' Congress may 
incorporate banks and kindred institutions.\1659\

[[Page 342]]
Moreover, it may confer upon them private powers, which, standing alone, 
have no relation to the functions of the Federal Government, if those 
privileges are essential to the effective operation of such 
corporations.\1660\ Where necessary to meet the competition of state 
banks, Congress may authorize national banks to perform fiduciary 
functions, even though, apart from the competitive situation, federal 
instrumentalities might not be permitted to engage in such 
business.\1661\ The Court will not undertake to assess the relative 
importance of the public and private functions of a financial 
institution Congress has seen fit to create. It sustained the act 
setting up the Federal Farm Loan Banks to provide funds for mortgage 
loans on agricultural land against the contention that the right of the 
Secretary of the Treasury, which he had not exercised, to use these 
banks as depositories of public funds, was merely a pretext for 
chartering those banks for private purposes.\1662\

        \1659\McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 407 (1819).
        \1660\Osborn v. United States Bank, 9 Wheat. (22 U.S.) 738, 862 
(1824). See also Pittman v. Home Owners' Corp., 308 U.S. 21 (1939).
        \1661\First National Bank v. Follows ex rel. Union Trust Co., 
244 U.S. 416 (1917); Missouri ex rel. Burnes National Bank v. Duncan, 
265 U.S. 17 (1924).
        \1662\Smith v. Kansas City Title Co., 255 U.S. 180 (1921).
      Currency Regulations

        Reinforced by the necessary and proper clause, the powers ```to 
lay and collect taxes, to pay the debts and provide for the common 
defence and general welfare of the United States,' and `to borrow money 
on the credit of the United States and to coin money and regulate the 
value thereon . . . ,'''\1663\ have been held to give Congress virtually 
complete control over money and currency. A prohibitive tax on the notes 
of state banks,\1664\ the issuance of treasury notes impressed with the 
quality of legal tender in payment of private debts\1665\ and the 
abrogation of clauses in private contracts, which called for payment in 
gold coin,\1666\ were sustained as appropriate measures for carrying 
into effect some or all of the foregoing powers.

        \1663\Legal Tender Cases (Julliard v. Greenman), 110 U.S. 421, 
449 (1884).
        \1664\Veazie Bank v. Fenno, 8 Wall. (75 U.S.) 533 (1869).
        \1665\Legal Tender Cases (Julliard v. Greenman), 110 U.S. 421 
(1884). See also Legal Tender Cases (Knox v. Lee), 12 Wall. (79 U.S.) 
457 (1871).
        \1666\Norman v. B. & O. R. Co., 294 U.S. 240, 303 (1935).
      Power to Charter Corporations

        In addition to the creation of banks, Congress has been held to 
have authority to charter a railroad corporation,\1667\ or a corporation 
to construct an interstate bridge,\1668\ as instrumentalities

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for promoting commerce among the States, and to create corporations to 
manufacture aircraft\1669\ or merchant vessels\1670\ as incidental to 
the war power.

        \1667\Pacific Railroad Removal Cases, 115 U.S. 1 (1885); 
California v. Pacific Railroad Company, 127 U.S. 1, 39 (1888).
        \1668\Luxton v. North River Bridge Co., 153 U.S. 525 (1894).
        \1669\Clallam County v. United States, 263 U.S. 341 (1923).
        \1670\Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 
      Courts and Judicial Proceedings

        Inasmuch as the Constitution ``delineated only the great 
outlines of the judicial power . . . , leaving the details to Congress, 
. . . [t]he distribution and appropriate exercise of the judicial power 
must . . . be made by laws passed by Congress. . . .''\1671\ As a 
necessary and proper provision for the exercise of the jurisdiction 
conferred by Article III, Sec. 2, Congress may direct the removal from a 
state to a federal court of a criminal prosecution against a federal 
officer for acts done under color of federal law,\1672\ and may 
authorize the removal before trial of civil cases arising under the laws 
of the United States.\1673\ It may prescribe the effect to be given to 
judicial proceedings of the federal courts\1674\ and may make all laws 
necessary for carrying into execution the judgments of federal 
courts.\1675\ When a territory is admitted as a State, Congress may 
designate the court to which the records of the territorial courts shall 
be transferred and may prescribe the mode for enforcement and review of 
judgments rendered by those courts.\1676\ In the exercise of other 
powers conferred by the Constitution, apart from Article III, Congress 
may create legislative courts and ``clothe them with functions deemed 
essential or helpful in carrying those powers into execution.''\1677\

        \1671\Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 721 
        \1672\Tennessee v. Davis, 100 U.S. 257, 263 (1880).
        \1673\Railway Company v. Whitton, 13 Wall. (80 U.S.) 270, 287 
        \1674\Embry v. Palmer, 107 U.S. 3 (1883).
        \1675\Bank of the United States v. Halstead, 10 Wheat. (23 U.S.) 
51, 53 (1825).
        \1676\Express Company v. Kountze Brothers, 8 Wall. (75 U.S.) 
342, 350 (1869).
        \1677\Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). But see 
Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50 
      Special Acts Concerning Claims

        This clause enables Congress to pass special laws to require 
other departments of the Government to prosecute or adjudicate 
particular claims, whether asserted by the Government itself or by 
private persons. In 1924,\1678\ Congress adopted a Joint Resolution 
directing the President to cause suit to be instituted for the 
cancellation of certain oil leases alleged to have been obtained from 
the Government by fraud and to prosecute such other actions and 
proceedings, civil and criminal, as were warranted by the facts.

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This resolution also authorized the appointment of special counsel to 
have charge of such litigation. Private acts providing for a review of 
an order for compensation under the Longshoreman's and Harbor Workers' 
Compensation Act,\1679\ or conferring jurisdiction upon the Court of 
Claims, after it had denied recovery, to hear and determine certain 
claims of a contractor against the Government, have been held 

        \1678\43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 
263 (1929).
        \1679\Paramino Co. v. Marshall, 309 U.S. 370 (1940).
        \1680\Pope v. United States, 323 U.S. 1 (1944).
      Maritime Law

        Congress may implement the admiralty and maritime jurisdiction 
conferred upon the federal courts by revising and amending the maritime 
law that existed at the time the Constitution was adopted, but in so 
doing, it cannot go beyond the reach of that jurisdiction.\1681\ This 
power cannot be delegated to the States; hence, acts of Congress that 
purported to make state workmen's compensation laws applicable to 
maritime cases were held unconstitutional.\1682\

        \1681\Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 
        \1682\Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); 
Washington v. Dawson & Co., 264 U.S. 219 (1924).


                                ARTICLE I

                         LEGISLATIVE DEPARTMENT

  Section 9. Clause 1. The Migration or Importation of such Persons as 
any of the States now existing shall think proper to admit, shall not be 
prohibited by the Congress prior to the Year one thousand eight hundred 
and eight, but a Tax or duty may be imposed on such Importation, not 
exceeding ten dollars for each Person.

                        POWERS DENIED TO CONGRESS

      General Purpose of Section 9

        This section of the Constitution (containing eight clauses 
restricting or prohibiting legislation affecting the importation of 
slaves, the suspension of the writ of habeas corpus, the enactment of 
bills of attainder or ex post facto laws, the levying of taxes on 
exports, the granting of preference to ports of one State over another, 
the granting of titles of nobility, et cetera) is devoted to restraints 
upon the power of Congress and of the National Govern

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ment,\1683\ and in no respect affects the States in the regulation of 
their domestic affairs.\1684\

        \1683\Barron v. Baltimore, 7 Pet. (32 U.S.) 243 (1833); Morgan 
v. Louisiana, 118 U.S. 455, 467 (1886).
        \1684\Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. 
Chicago & Pacific Elevator Co., 119 U.S. 388, 400 (1886).

        The above clause, which sanctioned the importation of slaves by 
the States for twenty years after the adoption of the Constitution, when 
considered with the section requiring escaped slaves to be returned to 
their masters, Art. IV, Sec. 1, cl. 3, was held by Chief Justice Taney 
in Scott v. Sandford,\1685\ to show conclusively that such persons and 
their descendants were not embraced within the term ``citizen'' as used 
in the Constitution. Today, this ruling is interesting only as an 
historical curiosity.

        \1685\19 How. (60 U.S.) 393, 411 (1857).

  Clause 2. The Privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when in Cases of Rebellion or Invasion the public 
Safety may require it.

        This clause is the only place in the Constitution in which the 
Great Writ is mentioned, a strange fact in the context of the regard 
with which the right was held at the time the Constitution was 
written\1686\ and stranger in the context of the role the right has come 
to play in the Supreme Court's efforts to constitutionalize federal and 
state criminal procedure.\1687\

        \1686\R. Walker, The American Reception of the Writ of Liberty 
(Norman, Okla.: 1961).
        \1687\Infra, discussion under Article III.

        Only the Federal Government and not the States, it has been held 
obliquely, is limited by the clause.\1688\ The issue that has always 
excited critical attention is the authority in which the clause places 
the power to determine whether the circumstances warrant suspension of 
the privilege of the Writ.\1689\ The clause itself does

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not specify, and while most of the clauses of 9 are directed at Congress 
not all of them are.\1690\ At the Convention, the first proposal of a 
suspending authority expressly vested ``in the legislature'' the 
suspending power,\1691\ but the author of this proposal did not retain 
this language when the matter was taken up,\1692\ the present language 
then being adopted.\1693\ Nevertheless, Congress' power to suspend was 
assumed in early commentary\1694\ and stated in dictum by the 
Court.\1695\ President Lincoln suspended the privilege on his own motion 
in the early Civil War period,\1696\ but this met with such 
opposition\1697\ that he sought and received congressional 
authorization.\1698\ Three other suspensions were subsequently ordered 
on the basis of more or less express authorizations from Congress.\1699\

        \1688\Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).
        \1689\In form, of course, clause 2 is a limitation of power, not 
a grant of power, and is in addition placed in a section of limitations. 
It might be argued, therefore, that the power to suspend lies elsewhere 
and that this clause limits that authority. This argument is opposed by 
the little authority there is on the subject. 3 M. Farrand, The Records 
of the Federal Convention of 1787 (New Haven: 1937), 213 (Luther 
Martin); Ex parte Merryman, 17 Fed. Cas. 144, 148 (No. 9487), (C.C.D. 
Md. 1861); but cf. 3 J. Elliot, The Debates in the Several State 
Conventions on the Adoption of the Federal Constitution (Washington: 2d 
ed. 1836), 464 (Edmund Randolph). At the Convention, Gouverneur Morris 
proposed the language of the present clause: the first section of the 
clause, down to ``unless'' was adopted unanimously, but the second part, 
qualifying the prohibition on suspension was adopted over the opposition 
of three States. 2 M. Farrand, op. cit., 438. It would hardly have been 
meaningful for those States opposing any power to suspend to vote 
against this language if the power to suspend were conferred elsewhere.
        \1690\Cf. Clauses 7, 8.
        \1691\2 M. Farrand, The Records of the Federal Convention of 
1787 (New Haven: rev. ed. 1937), 341.
        \1692\Id., 438.
        \1694\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1336.
        \1695\Ex parte Bollman, 4 Cr. (8 U.S.) 75, 101 (1807).
        \1696\Cf. J. Randall, Constitutional Problems Under Lincoln 
(Urbana: rev. ed. 1951), 118-139.
        \1697\Including a finding by Chief Justice Taney on circuit that 
the President's action was invalid. Ex parte Merryman, 17 Fed. Cas. 144 
(No. 9487) (C.C.D. Md. 1861).
        \1698\Act of March 3, 1863, 1, 12 Stat. 755. See Sellery, 
Lincoln's Suspension of Habeas Corpus as Viewed by Congress, 1 U. Wis. 
History Bull. 213 (1907).
        \1699\The privilege of the Writ was suspended in nine counties 
in South Carolina in order to combat the Ku Klux Klan, pursuant to Act 
of April 20, 1871, 4, 17 Stat. 14. It was suspended in the Philippines 
in 1905, pursuant to the Act of July 1, 1902, 5, 32 Stat. 692. Cf. 
Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended in 
Hawaii during World War II, pursuant to a section of the Hawaiian 
Organic Act, 67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 
304 (1946). For the problem of de facto suspension through manipulation 
of the jurisdiction of the federal courts, see infra, discussion under 
Article III.

        When suspension operates, what is suspended? In Ex parte 
Milligan,\1700\ the Court asserted that the Writ is not suspended but 
only the privilege, so that the Writ would issue and the issuing court 
on its return would determine whether the person applying can proceed, 
thereby passing on the constitutionality of the suspension and whether 
the petitioner is within the terms of the suspension.

        \1700\4 Wall. (71 U.S.) 2, 130-131 (1866).

  Clause 3. No Bill of Attainder or ex post facto Law shall be passed.
[[Page 347]]

      Bills of Attainder

        ``Bills of attainder . . . are such special acts of the 
legislature, as inflict capital punishments upon persons supposed to be 
guilty of high offences, such as treason and felony, without any 
conviction in the ordinary course of judicial proceedings. If an act 
inflicts a milder degree of punishment than death, it is called a bill 
of pains and penalties. . . . In such cases, the legislature assumes 
judicial magistracy, pronouncing upon the guilt of the party without any 
of the common forms and guards of trial, and satisfying itself with 
proofs, when such proofs are within its reach, whether they are 
conformable to the rules of evidence, or not. In short, in all such 
cases, the legislature exercises the highest power of sovereignty, and 
what may be properly deemed an irresponsible despotic discretion, being 
governed solely by what it deems political necessity or expediency, and 
too often under the influence of unreasonable fears, or unfounded 
suspicions.''\1701\ The phrase ``bill of attainder,'' as used in this 
clause and in clause 1 of Sec. 10, applies to bills of pains and 
penalties as well as to the traditional bills of attainder.\1702\

        \1701\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1338.
        \1702\Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 323 (1867); 
cf. United States v. Brown, 381 U.S. 437, 441-442, (1965).

        The prohibition embodied in this clause is not to be strictly 
and narrowly construed in the context of traditional forms but is to be 
interpreted in accordance with the designs of the framers so as to 
preclude trial by legislature, a violation of the separation of powers 
concept.\1703\ The clause thus prohibits all legislative acts, ``no 
matter what their form, that apply either to named individuals or to 
easily ascertainable members of a group in such a way as to inflict 
punishment on them without a judicial trial. . . .''\1704\ That the 
Court has applied the clause dynamically is revealed by a consideration 
of the three cases in which acts of Congress have been struck down as 
violating it.\1705\ In Ex parte Garland,\1706\ the Court struck down a 
statute that required attorneys to take an oath that they had taken no 
part in the Confederate rebellion against the United States before they 
could practice in federal courts. The statute, and a state 
constitutional amendment requiring a similar oath of per

[[Page 348]]
sons before they could practice certain professions,\1707\ were struck 
down as legislative acts inflicting punishment on a specific group the 
members of which had taken part in the rebellion and therefore could not 
truthfully take the oath. The clause then lay unused until 1946 when the 
Court utilized it to strike down a rider to an appropriations bill 
forbidding the use of money appropriated therein to pay the salaries of 
three named persons whom the House of Representatives wished discharged 
because they were deemed to be ``subversive.''\1708\

        \1703\United States v. Brown, 381 U.S. 437, 442-446 (1965). Four 
dissenting Justices, however, denied that any separation of powers 
concept underlay the clause. Id., 472-473.
        \1704\United States v. Lovett, 328 U.S. 303, 315 (1946).
        \1705\For a rejection of the Court's approach and a plea to 
adhere to the traditional concept, see id., 318 (Justice Frankfurter 
        \1706\4 Wall. (71 U.S.) 333 (1867).
        \1707\Cummings v. Missouri, 4 Wall. (71 U.S.) 277 (1867).
        \1708\United States v. Lovett, 328 U.S. 303 (1946).

        Then, in United States v. Brown,\1709\ a sharply divided Court 
held void as a bill of attainder a statute making it a crime for a 
member of the Communist Party to serve as an officer or as an employee 
of a labor union. Congress could, Chief Justice Warren wrote for the 
majority, under its commerce power, protect the economy from harm by 
enacting a prohibition generally applicable to any person who commits 
certain acts or possesses certain characteristics making him likely in 
Congress' view to initiate political strikes or other harmful deeds and 
leaving it to the courts to determine whether a particular person 
committed the specified acts or possessed the specified characteristics; 
it was impermissible, however, for Congress to designate a class of 
persons--members of the Communist Party--as being forbidden to hold 
union office.\1710\ The dissenters viewed the statute as merely 
expressing in shorthand the characteristics of those persons who were 
likely to utilize union responsibilities to accomplish harmful acts; 
Congress could validly conclude that all members of the Communist Party 
possessed those characteristics.\1711\ The majority's decision in Brown 
cast in doubt certain statutes and certain statutory formulations that 
had been held not to constitute bills of attainder. For example, a 
predecessor of the statute struck down in Brown, which had conditioned a 
union's access to the NLRB upon the filing of affidavits by all of the 
union's officers attesting that they were not members of or affiliated 
with the Communist Party, had been upheld,\1712\ and although Chief 
Justice Warren distinguished the previous case from

[[Page 349]]
Brown on the basis that the Court in the previous decision had found the 
statute to be preventive rather than punitive,\1713\ he then proceeded 
to reject the contention that the punishment necessary for a bill of 
attainder had to be punitive or retributive rather than 
preventive,\1714\ thus undermining the prior decision. Of much greater 
significance was the effect of the Brown decision on ``conflict-of-
interest'' legislation typified by that upheld in Board of Governors v. 
Agnew.\1715\ The statute there forbade any partner or employee of a firm 
primarily engaged in underwriting securities from being a director of a 
national bank.\1716\ Chief Justice Warren distinguished the prior 
decision and the statute on three grounds from the statute then under 
consideration. First, the union statute inflicted its deprivation upon 
the members of a suspect political group in typical bill-of-attainder 
fashion, unlike the statute in Agnew. Second, in the Agnew statute, 
Congress did not express a judgment upon certain men or members of a 
particular group; it rather concluded that any man placed in the two 
positions would suffer a temptation any man might yield to. Third, 
Congress established in the Agnew statute an objective standard of 
conduct expressed in shorthand, which precluded persons from holding the 
two positions.

        \1709\381 U.S. 437 (1965).
        \1710\The Court of Appeals had voided the statute as an 
infringement of First Amendment expression and association rights, but 
the Court majority did not choose to utilize this ground. 334 F. 2d 488 
(9th Cir., 1964). However, in United States v. Robel, 389 U.S. 258 
(1967), a very similar statute making it unlawful for any member of a 
``Communist-action organization'' to be employed in a defense facility 
was struck down on First Amendment grounds and the bill of attainder 
argument was ignored.
        \1711\United States v. Brown, 381 U.S. 437, 462 (1965) (Justices 
White, Clark, Harlan, and Stewart dissenting).
        \1712\American Communications Assn. v. Douds, 339 U.S. 382 
        \1713\Id., 413, 414, cited in United States v. Brown, 381 U.S. 
437, 457-458 (1965).
        \1714\Id., 458-461.
        \1715\329 U.S. 441 (1947).
        \1716\12 U.S.C. Sec. 78.

        Apparently withdrawing from the Brown analysis in upholding a 
statute providing for governmental custody of documents and recordings 
accumulated during the tenure of former President Nixon,\1717\ the Court 
set out a rather different formula for deciding bill of attainder 
cases.\1718\ The law specifically applied only to President Nixon and 
directed an executive agency to assume control over the materials and 
prepare regulations providing for ultimate public dissemination of at 
least some of them; the act assumed that it did not deprive the former 
President of property rights but authorized the award of just 
compensation if it should be judicially determined that there was a 
taking. First, the Court

[[Page 350]]
denied that the clause denies the power to Congress to burden some 
persons or groups while not so treating all other plausible individuals 
or groups; even the present law's specificity in referring to the former 
President by name and applying only to him did not condemn the act 
because he ``constituted a legitimate class of one'' on whom Congress 
could ``fairly and rationally'' focus.\1719\ Second, even if the 
statute's specificity did bring it within the prohibition of the clause, 
the lodging of Mr. Nixon's materials with the GSA did not inflict 
punishment within the meaning of the clause. This analysis was a three-
pronged one: 1) the law imposed no punishment traditionally judged to be 
prohibited by the clause; 2) the law, viewed functionally in terms of 
the type and severity of burdens imposed, could rationally be said to 
further nonpunitive legislative purposes; and 3) the law had no 
legislative record evincing a congressional intent to punish.\1720\ That 
is, the Court, looking ``to its terms, to the intent expressed by 
Members of Congress who voted its passage, and to the existence or 
nonexistence of legitimate explanations for its apparent effect,'' 
concluded that the statute served to further legitimate policies of 
preserving the availability of evidence for criminal trials and the 
functioning of the adversary legal system and in promoting the 
preservation of records of historical value, all in a way that did not 
and was not intended to punish the former President.

        \1717\The Presidential Recordings and Materials Preservation 
Act, P.L. 93-526, 88 Stat. 1695 (1974), note following 44 U.S.C. 
Sec. 2107. For an application of this statute, see Nixon v. Warner 
Communications, 435 U.S. 589 (1978).
        \1718\Nixon v. Administrator of General Services, 433 U.S. 425, 
468-484 (1977). Justice Stevens' concurrence is more specifically 
directed to the facts behind the statute than is the opinion of the 
Court, id., 484, and Justice White, author of the dissent in Brown, 
merely noted he found the act nonpunitive. Id., 487. Chief Justice 
Burger and Justice Rehnquist dissented. Id., 504, 536-545, 545. Adding 
to the impression of a departure from Brown is the quotation in the 
opinion of the Court at several points of the Brown dissent, id., 470 n. 
31, 471 n. 34, while the dissent quoted and relied on the opinion of the 
Court in Brown. Id., 538, 542.
        \1719\Id., 472. Justice Stevens carried the thought further, 
although in the process he severely limited the precedential value of 
the decision. Id., 484.
        \1720\Id., 473-484.

        The clause protects individual persons and groups who are 
vulnerable to nonjudicial determinations of guilt and does not apply to 
a State; neither does a State have standing to invoke the clause for its 
citizens against the Federal Government.\1721\

        \1721\South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
      Ex Post Facto Laws

        Definition.--At the time the Constitution was adopted, many 
persons understood the term ex post facto laws to ``embrace all 
retrospective laws, or laws governing or controlling past transactions, 
whether . . . of a civil or a criminal nature.''\1722\ But in the early 
case of  Calder v. Bull,\1723\ the Supreme Court decided that the 
phrase, as used in the Constitution, applied only to penal and criminal 
statutes. But although it is inapplicable to retroactive legislation of 
any other kind,\1724\ the constitutional prohibition may

[[Page 351]]
not be evaded by giving a civil form to a measure that is essentially 
criminal.\1725\ Every law, which makes criminal an act that was innocent 
when done, or which inflicts a greater punishment than the law annexed 
to the crime when committed, is an ex post facto law within the 
prohibition of the Constitution.\1726\ A prosecution under a temporary 
statute, which was extended before the date originally set for its 
expiration, does not offend this provision even though it is instituted 
subsequent to the extension of the statute's duration for a violation 
committed prior thereto.\1727\ Since this provision has no application 
to crimes committed outside the jurisdiction of the United States 
against the laws of a foreign country, it is immaterial in extradition 
proceedings whether the foreign law is ex post facto or not.\1728\

        \1722\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1339.
        \1723\3 Dall. (3 U.S.) 386, 393 (1798).
        \1724\Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).
        \1725\Burgess v. Salmon, 97 U.S. 381 (1878).
        \1726\Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798); Ex parte 
Garland, 4 Wall. (71 U.S.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 
381, 384 (1878).
        \1727\United States v. Powers, 307 U.S. 214 (1939).
        \1728\Neely v. Henkel, 180 U.S. 109, 123 (1901). Cf. In re 
Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); 
Hirota v. MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of 
Justice Douglas).

        What Constitutes Punishment.--An act of Congress that prescribed 
as a qualification for practice before the federal courts an oath that 
the attorney had not participated in the Rebellion was found 
unconstitutional since it operated as a punishment for past acts.\1729\ 
But a statute that denied to polygamists the right to vote in a 
territorial election was upheld even as applied to one who had not 
contracted a polygamous marriage and had not cohabited with more than 
one woman since the act was passed, because the law did not operate as 
an additional penalty for the offense of polygamy but merely defined it 
as a disqualification of a voter.\1730\ A deportation law authorizing 
the Secretary of Labor to expel aliens for criminal acts committed 
before its passage is not ex post facto since deportation is not a 
punishment.\1731\ For this reason, a statutory provision terminating 
payment of old-age benefits to an alien deported for Communist 
affiliation also is not ex post facto, for the denial of a non-
contractual benefit to a deported alien is not a penalty

[[Page 352]]
but a regulation designed to relieve the Social Security System of 
administrative problems of supervision and enforcement likely to arise 
from disbursements to beneficiaries residing abroad.\1732\ Likewise an 
act permitting the cancellation of naturalization certificates obtained 
by fraud prior to the passage of the law was held not to impose a 
punishment, but it was simply to deprive the alien of his illgotten 

        \1729\Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).
        \1730\Murphy v. Ramsey, 114 U.S. 15 (1885).
        \1731\Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 
228 U.S. 585 (1913); Marcello v. Bonds, 349 U.S. 302 (1955). Justices 
Black and Douglas, reiterating in Lehman v. United States ex rel. 
Carson, 353 U.S. 685, 690-691 (1957), their dissent from the premise 
that the ex post facto clause is directed solely to penal legislation, 
disapproved a holding that an immigration law, enacted in 1952, 8 U.S.C. 
Sec. 1251, which authorized deportation of an alien who, in 1945, had 
acquired a status of nondeportability under pre-existing law is valid. 
In their opinion, to banish, in 1957, an alien who had lived in the 
United States for almost 40 years, for an offense committed in 1936, and 
for which he already had served a term in prison, was to subject him to 
new punishment retrospectively imposed.
        \1732\Flemming v. Nestor, 363 U.S. 603 (1960).
        \1733\Johannessen v. United States, 225 U.S. 227 (1912).

        Change in Place or Mode of Trial.--A change of the place of 
trial of an alleged offense after its commission is not an ex post facto 
law. If no place of trial was provided when the offense was committed, 
Congress may designate the place of trial thereafter.\1734\ A law which 
alters the rule of evidence to permit a person to be convicted upon less 
or different evidence than was required when the offense was committed 
is invalid,\1735\ but a statute which simply enlarges the class of 
persons who may be competent to testify in criminal cases is not ex post 
facto as applied to a prosecution for a crime committed prior to its 

        \1734\Cook v. United States, 138 U.S. 157, 183 (1891).
        \1735\Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798).
        \1736\Hopt v. Utah, 110 U.S. 574, 589 (1884).

  Clause 4. No Capitation, or other direct, Tax shall be laid, unless in 
Proportion to the Census or Enumeration herein before directed to be 
      Direct Taxes

        The Hylton Case.--The crucial problem under this section is to 
distinguish ``direct'' from other taxes. In its opinion in Pollock v. 
Farmers' Loan & Trust Co., the Court declared: ``It is apparent . . . 
that the distinction between direct and indirect taxation was well 
understood by the framers of the Constitution and those who adopted 
it.''\1737\ Against this confident dictum may be set the following brief 
excerpt from Madison's Notes on the Convention: ``Mr. King asked what 
was the precise meaning of direct taxation? No one answered.''\1738\ The 
first case to come before the Court on this issue was Hylton v. United 
States,\1739\ which was decided early in 1796. Congress has levied, 
according to the rule of uniformity, a specific tax upon all carriages, 
for the conveyance of persons, which were to be kept by, or for any 
person, for his own use, or

[[Page 353]]
to be let out for hire, or for the conveying of passengers. In a 
fictitious statement of facts, it was stipulated that the carriages 
involved in the case were kept exclusively for the personal use of the 
owner and not for hire. The principal argument for the constitutionality 
of the measure was made by Hamilton, who treated it as an ``excise 
tax,''\1740\ while Madison both on the floor of Congress and in 
correspondence attacked it as ``direct'' and so void, inasmuch as it was 
levied without apportionment.\1741\ The Court, taking the position that 
the direct tax clause constituted in practical operation an exception to 
the general taxing powers of Congress, held that no tax ought to be 
classified as ``direct'' which could not be conveniently apportioned, 
and on this basis sustained the tax on carriages as one on their ``use'' 
and therefore an ``excise.'' Moreover, each of the judges advanced the 
opinion that the direct tax clause should be restricted to capitation 
taxes and taxes on land, or that at most, it might cover a general tax 
on the aggregate or mass of things that generally pervade all the 
States, especially if an assessment should intervene, while Justice 
Paterson, who had been a member of the Federal Convention, testified to 
his recollection that the principal purpose of the provision had been to 
allay the fear of the Southern States lest their Negroes and land should 
be subjected to a specific tax.\1742\

        \1737\157 U.S. 429, 573 (1895).
        \1738\J. Madison, The Debates in the Federal Convention of 1787 
(G. Hunt & J. Scott eds.) (Greenwood Press ed. 1970), 435.
        \1739\3 Dall. (3 U.S.) 171 (1796).
        \1740\The Works of Alexander Hamilton, J. Hamilton ed. (New 
York: 1851), 845. ``If the meaning of the word excise is to be sought in 
the British statutes, it will be found to include the duty on carriages, 
which is there considered as an excise, and then must necessarily be 
uniform and liable to apportionment; consequently, not a direct tax.''
        \1741\4 Annals of Congress 730 (1794); 2 Letters and Other 
Writings of James Madison (Philadelphia: 1865), 14.
        \1742\3 Dall. (3 U.S.) 171, 177 (1796).

        From the Hylton to the Pollock Case.--The result of the Hylton 
case was not challenged until after the Civil War. A number of the taxes 
imposed to meet the demands of that war were assailed during the postwar 
period as direct taxes but without result. The Court sustained 
successively, as ``excises'' or ``duties,'' a tax on an insurance 
company's receipts for premiums and assessments;\1743\ a tax on the 
circulating notes of state banks,\1744\ an inheritance tax on real 
estate,\1745\ and finally a general tax on incomes.\1746\ In the last 
case, the Court took pains to state that it regarded the term ``direct 
taxes'' as having acquired a definite and fixed meaning, to wit, 
capitation taxes, and taxes on land.\1747\ Then, almost one hundred 
years after the Hylton case, the famous

[[Page 354]]
case of Pollock v. Farmers' Loan & Trust Co.\1748\ arose under the 
Income Tax Act of 1894.\1749\ Undertaking to correct ``a century of 
error,'' the Court held, by a vote of five-to-four, that a tax on income 
from property was a direct tax within the meaning of the Constitution 
and hence void because not apportioned according to the census.

        \1743\Pacific Insurance Company v. Soule, 7 Wall. (74 U.S.) 433 
        \1744\Veazie Bank v. Fenno, 8 Wall. (75 U.S.) 533 (1869).
        \1745\Scholey v. Rew, 23 Wall. (90 U.S.) 331 (1875).
        \1746\Springer v. United States, 102 U.S. 586 (1881).
        \1747\Id., 602.
        \1748\157 U.S. 429 (1895); 158 U.S. 601 (1895).
        \1749\28 Stat. 509, 553 (1894).

        Restriction of the Pollock Decision.--The Pollock decision 
encouraged taxpayers to challenge the right of Congress to levy by the 
rule of uniformity numerous taxes that had always been reckoned to be 
excises. But the Court evinced a strong reluctance to extend the 
doctrine to such exactions. Purporting to distinguish taxes levied 
``because of ownership'' or ``upon property as such'' from those laid 
upon ``privileges,''\1750\ it sustained as ``excises'' a tax on sales on 
business exchanges,\1751\ a succession tax which was construed to fall 
on the recipients of the property transmitted rather than on the estate 
of the decedent,\1752\ and a tax on manufactured tobacco in the hands of 
a dealer, after an excise tax had been paid by the manufacturer.\1753\ 
Again, in Thomas v. United States,\1754\ the validity of a stamp tax on 
sales of stock certificates was sustained on the basis of a definition 
of ``duties, imposts and excises.'' These terms, according to the Chief 
Justice, ``were used comprehensively to cover customs and excise duties 
imposed on importation, consumption, manufacture and sale of certain 
commodities, privileges, particular business transactions, vocations, 
occupations and the like.''\1755\ On the same day, it ruled, in 
Spreckels Sugar Refining Co. v. McClain,\1756\ that an exaction, 
denominated a special excise tax, imposed on the business of refining 
sugar and measured by the gross receipts thereof, was in truth an excise 
and hence properly levied by the rule of uniformity. The lesson of Flint 
v. Stone Tracy Co.\1757\ was the same. In the Flint case, what was in 
form an income tax was sustained as a tax on the privilege of doing 
business as a corporation, the value of the privilege being measured by 
the income, including income from investments. Similarly,, in Stanton v. 
Baltic Mining Co.,\1758\ a tax on the annual production of mines was 
held to be ``independently of the effect of the oper

[[Page 355]]
ation of the Sixteenth Amendment . . . not a tax upon property as such 
because of its ownership, but a true excise levied on the results of the 
business of carrying on mining operations.''\1759\

        \1750\Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); 
Knowlton v. Moore, 178 U.S. 41, 80 (1900).
        \1751\Nicol v. Ames, 173 U.S. 509 (1899).
        \1752\Knowlton v. Moore, 178 U.S. 41 (1900).
        \1753\Patton v. Brady, 184 U.S. 608 (1902).
        \1754\192 U.S. 363 (1904).
        \1755\Id., 370.
        \1756\192 U.S. 397 (1904).
        \1757\220 U.S. 107 (1911).
        \1758\240 U.S. 103 (1916).
        \1759\Id., 114.

        A convincing demonstration of the extent to which the Pollock 
decision had been whittled down by the time the Sixteenth Amendment was 
adopted is found in Billings v. United States.\1760\ In challenging an 
annual tax assessed for the year 1909 on the use of foreign built 
yachts--a levy not distinguishable in substance from the carriage tax 
involved in the Hylton case as construed by the Supreme Court--counsel 
did not even suggest that the tax should be classed as a direct tax. 
Instead, he based his argument that the exaction constituted a taking of 
property without due process of law upon the premise that it was an 
excise, and the Supreme Court disposed of the case upon the same 

        \1760\232 U.S. 261 (1914).

        In 1921, the Court cast aside the distinction drawn in Knowlton 
v. Moore between the right to transmit property on the one hand and the 
privilege of receiving it on the other, and sustained an estate tax as 
an excise. ``Upon this point,'' wrote Justice Holmes for a unanimous 
Court, ``a page of history is worth a volume of logic.''\1761\ This 
proposition being established, the Court had no difficulty in deciding 
that the inclusion in the computation of the estate tax of property held 
as joint tenants,\1762\ or as tenants by the entirety,\1763\ or the 
entire value of community property owned by husband and wife,\1764\ or 
the proceeds of insurance upon the life of the decedent,\1765\ did not 
amount to direct taxation of such property. Similarly, it upheld a 
graduated tax on gifts as an excise, saying that it was ``a tax laid 
only upon the exercise of a single one of those powers incident to 
ownership, the power to give the property owned to another.''\1766\ 
Justice Sutherland, speaking for himself and two associates, urged that 
``the right to give away one's property is as fundamental as the right 
to sell it or, indeed, to possess it.''\1767\

        \1761\New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
        \1762\Phillips v. Dime Trust & S.D. Co., 284 U.S. 160 (1931).
        \1763\Tyler v. United States, 281 U.S. 497 (1930).
        \1764\Fernandez v. Wiener, 326 U.S. 340 (1945).
        \1765\Chase Nat. Bank v. United States, 278 U.S. 327 (1929); 
United States v. Manufacturers Nat. Bank, 363 U.S. 194, 198-201 (1960).
        \1766\Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also 
Helvering v. Bullard, 303 U.S. 297 (1938).
        \1767\Bromley v. McCaughn, 280 U.S. 124, 140 (1929).

        Miscellaneous.--The power of Congress to levy direct taxes is 
not confined to the States represented in that body. Such a tax may be 
levied in proportion to population in the District of Colum

[[Page 356]]
bia.\1768\ A penalty imposed for nonpayment of a direct tax is not a 
part of the tax itself and hence is not subject to the rule of 
apportionment. Accordingly, the Supreme Court sustained the penalty of 
fifty percent, which Congress exacted for default in the payment of the 
direct tax on land in the aggregate amount of twenty million dollars 
that was levied and apportioned among the States during the Civil 

        \1768\Loughborough v. Blake, 5 Wheat. (18 U.S.) 317 (1820).
        \1769\De Treville v. Smalls, 98 U.S. 517, 527 (1879).

  Clause 5. No Tax or Duty shall be laid on Articles exported from any 
      Taxes on Exports

        This prohibition applies only to the imposition of duties on 
goods by reason of exportation.\1770\ The word ``export'' signifies 
goods exported to a foreign country, not to an unincorporated territory 
of the United States.\1771\ A general tax laid on all property alike, 
including that intended for export, is not within the prohibition, if it 
is not levied on goods in course of exportation nor because of their 
intended exportation.\1772\ Where the sale to a commission merchant for 
a foreign consignee was consummated by delivery of the goods to an 
exporting carrier, the sale was held to be a step in the exportation and 
hence exempt from a general tax on sales of such commodity.\1773\ The 
giving of a bond for exportation of distilled liquor was not the 
commencement of exportation so as to exempt from an excise tax spirits 
that were not exported pursuant to such bond.\1774\ A tax on the income 
of a corporation derived from its export trade was not a tax on 
``articles exported'' within the meaning of the Constitution.\1775\

        \1770\Turpin v. Burgess, 117 U.S. 504, 507 (1886). Cf. Almy v. 
California, 24 How. (65 U.S.) 169, 174 (1861).
        \1771\Dooley v. United States, 183 U.S. 151, 154 (1901).
        \1772\Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin v. 
Burgess, 117 U.S. 504, 507 (1886).
        \1773\Spalding & Bros. v. Edwards, 262 U.S. 66 (1923).
        \1774\Thompson v. United States, 142 U.S. 471 (1892).
        \1775\Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper 
Co. v. Bowers, 266 U.S. 373 (1924).

        Stamp Taxes.--A stamp tax imposed on foreign bills of 
lading,\1776\ charter parties,\1777\ or marine insurance policies,\1778\ 
was in effect a tax or duty upon exports, and so void; but an act 
requiring the stamping of all packages of tobacco intended for export in

[[Page 357]]
order to prevent fraud was held not to be forbidden as a tax on 

        \1776\Fairbank v. United States, 181 U.S. 283 (1901).
        \1777\United States v. Hvoslef, 237 U.S. 1 (1915).
        \1778\Thames & Mersey Inc. Co. v. United States, 237 U.S. 19 
        \1779\Pace v. Burgess, 92 U.S. 372 (1876); Turpin v. Burgess, 
117 U.S. 504, 505 (1886).

  Clause 6. No Preference shall be given by any Regulation of Commerce 
or Revenue to the Ports of one State over those of another: nor shall 
Vessels bound to, or from, one State, be obliged to enter, clear, or pay 
duties in another.
      The ``No Preference'' Clause

        The limitations imposed by this section were designed to prevent 
preferences as between ports because of their location in different 
States. They do not forbid such discriminations as between individual 
ports. Acting under the commerce clause, Congress may do many things 
that benefit particular ports and which incidentally result to the 
disadvantage of other ports in the same or neighboring States. It may 
establish ports of entry, erect and operate lighthouses, improve rivers 
and harbors, and provide structures for the convenient and economical 
handling of traffic.\1780\ A rate order of the Interstate Commerce 
Commission which allowed an additional charge to be made for ferrying 
traffic across the Mississippi to cities on the east bank of the river 
was sustained over the objection that it gave an unconstitutional 
preference to ports in Texas.\1781\ Although there were a few early 
intimations that this clause was applicable to the States as well as to 
Congress,\1782\ the Supreme Court declared emphatically in 1886 that 
state legislation was unaffected by it.\1783\ After more than a century, 
the Court confirmed, over the objection that this clause was offended, 
the power which the First Congress had exercised\1784\ in sanctioning 
the continued supervision and regulation of pilots by the States.\1785\

        \1780\Louisiana Pub. Serv. Comm. v. Texas & N.O.R. Co., 284 U.S. 
125, 131 (1931); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 
(59 U.S.) 421, 433 (1856); South Carolina v. Georgia, 93 U.S. 4 (1876). 
In Williams v. United States, 255 U.S. 336 (1921) the argument that an 
act of Congress which prohibited interstate transportation of liquor 
into States whose laws prohibited manufacture or sale of liquor for 
beverage purposes was repugnant to this clause was rejected.
        \1781\Louisiana PSC v. Texas & N.O.R. Co., 284 U.S. 125, 132 
        \1782\Passenger Cases (Smith v. Turner), 7 How. (48 U.S.) 282, 
414 (1849) (opinion of Justice Wayne); cf. Cooley v. Port Wardens, 12 
How. (53 U.S.) 299, 314 (1851).
        \1783\Morgan v. Louisiana, 118 U.S. 455, 467 (1886). See also 
Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & Pacific 
Elevator Co., 119 U.S. 388, 400 (1886).
        \1784\1 Stat. 53, 54, Sec. 4 (1789).
        \1785\Thompson v. Darden, 198 U.S. 310 (1905).

[[Page 358]]

  Clause 7. No Money shall be drawn from the Treasury but in Consequence 
of Appropriations made by Law; and a regular Statement and Account of 
the Receipts and Expenditures of all public Money shall be published 
from time to time.

        This clause is a limitation upon the power of the Executive 
Department and does not restrict Congress in appropriating moneys in the 
Treasury.\1786\ That body may recognize and pay a claim of an equitable, 
moral, or honorary nature. When it directs a specific sum to be paid to 
a certain person, neither the Secretary of the Treasury nor any court 
has discretion to determine whether the person is entitled to receive 
it.\1787\ In making appropriations to pay claims arising out of the 
Civil War, Congress could, the Court held, lawfully provide that certain 
persons, i.e., those who had aided the Rebellion, should not be paid out 
of the funds made available by the general appropriation, but that such 
persons should seek relief from Congress.\1788\ The Court has also 
recognized that Congress has a wide discretion with regard to the extent 
to which it shall prescribe details of expenditures for which it 
appropriates funds and has approved the frequent practice of making 
general appropriations of large amounts to be allotted and expended as 
directed by designated government agencies. Citing as an example that 
act of June 17, 1902,\1789\ where all moneys received from the sale and 
disposal of public lands in a large number of States and territories 
were set aside as a special fund to be expended under the direction of 
the Secretary of the Interior upon such projects as he determined to be 
practicable and advisable for the reclamation of arid and semi-arid 
lands within those States and territories, the Court declared: ``The 
constitutionality of this delegation of authority has never been 
seriously questioned.''\1790\

        \1786\Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 
(1937); Knote v. United States, 95 U.S. 149, 154 (1877).
        \1787\United States v. Price, 116 U.S. 43 (1885); United States 
v. Realty Company, 163 U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 
389, 393 (1899).
        \1788\Hart v. United States, 118 U.S. 62, 67 (1886).
        \1789\32 Stat. 388 (1902).
        \1790\Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 
      Payment of Claims

        No officer of the Federal Government is authorized to pay a debt 
due from the United States, whether reduced to judgment or not, without 
an appropriation for that purpose.\1791\ Nor may a gov

[[Page 359]]
ernment employee, by erroneous advice to a claimant, bind the United 
States through equitable estoppel principles to pay a claim for which an 
appropriation has not been made.\1792\

        \1791\Reeside v. Walker, 11 How. (52 U.S.) 272 (1851).
        \1792\OPM v. Richmond, 496 U.S. 414 (1990).

        After the Civil War, a number of controversies arose out of 
attempts by Congress to restrict the payment of the claims of persons 
who had aided the Rebellion but had thereafter received a pardon from 
the President. The Supreme Court held that Congress could not prescribe 
the evidentiary effect of a pardon in a proceeding in the Court of 
Claims for property confiscated during the Civil War,\1793\ but that 
where the confiscated property had been sold and the proceeds paid into 
the Treasury, a pardon did not of its own force authorize the 
restoration of such proceeds.\1794\ It was within the competence of 
Congress to declare that the amount due to persons thus pardoned should 
not be paid out of the Treasury and that no general appropriation should 
extend to their claims.\1795\

        \1793\United States v. Klein, 13 Wall. (80 U.S.) 128 (1872).
        \1794\Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. 
United States, 155 U.S. 417, 427 (1894).
        \1795\Hart v. United States, 118 U.S. 62, 67 (1886).

  Clause 8. No Title of Nobility shall be granted by the United States: 
And no Person holding any Office of Profit or Trust under them, shall, 
without the Consent of the Congress accept of any present, Emolument, 
Office, or Title, of any kind whatever, from any King, Prince, or 
foreign State.

        In 1871 the Attorney General of the United States ruled that: 
``A minister of the United States abroad is not prohibited by the 
Constitution from rendering a friendly service to a foreign power, even 
that of negotiating a treaty for it, provided he does not become an 
officer of that power . . . but the acceptance of a formal commission, 
as minister plenipotentiary, creates an official relation between the 
individual thus commissioned and the government which in this way 
accredits him as its representative,'' which is prohibited by this 
clause of the Constitution.\1796\

        \1796\13 Ops. Atty. Gen. 538 (1871).


                                ARTICLE I

                         LEGISLATIVE DEPARTMENT

  Section 10. No State shall enter into any Treaty, Alliance, or 
Confederation; grant Letters of Marque and Reprisal; coin Money; emit 
Bills of Credit; make any Thing but gold and sil

[[Page 360]]
ver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex 
post facto Law, or Law impairing the Obligation of Contracts, or grant 
any Title of Nobility.

                       POWERS DENIED TO THE STATES

      Treaties, Alliances, or Confederations

        At the time of the Civil War, this clause was one of the 
provisions upon which the Court relied in holding that the Confederation 
formed by the seceding States could not be recognized as having any 
legal existence.\1797\ Today, its practical significance lies in the 
limitations which it implies upon the power of the States to deal with 
matters having a bearing upon international relations. In the early case 
of Holmes v. Jennison,\1798\ Chief Justice Taney invoked it as a reason 
for holding that a State had no power to deliver up a fugitive from 
justice to a foreign State. Recently, the kindred idea that the 
responsibility for the conduct of foreign relations rests exclusively 
with the Federal Government prompted the Court to hold that, since the 
oil under the three mile marginal belt along the California coast might 
well become the subject of international dispute and since the ocean, 
including this three mile belt, is of vital consequence to the nation in 
its desire to engage in commerce and to live in peace with the world, 
the Federal Government has paramount rights in and power over that belt, 
including full dominion over the resources of the soil under the water 
area.\1799\ In Skiriotes v. Florida,\1800\ the Court, on the other hand, 
ruled that this clause did not disable Florida from regulating the 
manner in which its own citizens may engage in sponge fishing outside 
its territorial waters. Speaking for a unanimous Court, Chief Justice 
Hughes declared; ``When its action does not conflict with federal 
legislation, the sovereign authority of the State over the conduct of 
its citizens upon the high seas is analogous to the sovereign authority 
of the United States over its citizens in like circumstances.''\1801\

        \1797\Williams v. Bruffy, 96 U.S. 176, 183 (1878).
        \1798\14 Pet. (39 U.S.) 540 (1840).
        \1799\United States v. California, 332 U.S. 19 (1947).
        \1800\313 U.S. 69 (1941).
        \1801\Id., 78-79.
      Bills of Credit

        Within the sense of the Constitution, bills of credit signify a 
paper medium of exchange, intended to circulate between individuals, and 
between the Government and individuals, for the ordi

[[Page 361]]
nary purposes of society. It is immaterial whether the quality of legal 
tender is imparted to such paper. Interest bearing certificates, in 
denominations not exceeding ten dollars, which were issued by loan 
offices established by the State of Missouri and made receivable in 
payment of taxes or other moneys due to the State, and in payment of the 
fees and salaries of state officers, were held to be bills of credit 
whose issuance was banned by this section.\1802\ The States are not 
forbidden, however, to issue coupons receivable for taxes,\1803\ nor to 
execute instruments binding themselves to pay money at a future day for 
services rendered or money borrowed.\1804\ Bills issued by state banks 
are not bills of credit;\1805\ it is immaterial that the State is the 
sole stockholder of the bank,\1806\ that the officers of the bank were 
elected by the state legislature,\1807\ or that the capital of the bank 
was raised by the sale of state bonds.\1808\

        \1802\Craig v. Missouri, 4 Pet. (29 U.S.) 410, 425 (1830); Byrne 
v. Missouri, 8 Pet. (33 U.S.) 40 (1834).
        \1803\Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 
269 (1885); Chaffin v. Taylor, 116 U.S. 567 (1886).
        \1804\Houston & Texas Central Rd. v. Texas, 177 U.S. 66 (1900).
        \1805\Briscoe v. Bank of Kentucky, 11 Pet. (36 U.S.) 257 (1837).
        \1806\Darrington v. Bank of Alabama, 13 How. (54 U.S.) 12, 15 
(1851); Curran v. Arkansas, 15 How. (56 U.S.) 304, 317 (1854).
        \1807\Briscoe v. Bank of Kentucky, 11 Pet. (36 U.S.) 257 (1837).
        \1808\Woodruff v. Trapnall, 10 How. (51 U.S.) 190, 205 (1851).
      Legal Tender

        Relying on this clause, which applies only to the States and not 
to the Federal Government,\1809\ the Supreme Court has held that where 
the marshal of a state court received state bank notes in payment and 
discharge of an execution, the creditor was entitled to demand payment 
in gold or silver.\1810\ Since, however, there is nothing in the 
Constitution prohibiting a bank depositor from consenting when he draws 
a check that payment may be made by draft, a state law providing that 
checks drawn on local banks should, at the option of the bank, be 
payable in exchange drafts was held valid.\1811\

        \1809\Legal Tender Cases (Juilliard v. Greenman), 110 U.S. 421, 
446 (1884).
        \1810\Gwin v. Breedlove, 2 How. (43 U.S.) 29, 38 (1844). See 
also Griffin v. Thompson, 2 How. (43 U.S.) 244 (1844).
        \1811\Farmers & Merchants Bank v. Fed. Reserve Bank, 262 U.S. 
649, 659 (1923).
      Bills of Attainder

        Statutes passed after the Civil War with the intent and result 
of excluding persons who had aided the Confederacy from following 
certain callings, by the device of requiring them to take an oath

[[Page 362]]
that they had never given such aid, were held invalid as being bills of 
attainder, as well as ex post facto laws.\1812\

        \1812\Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 323 (1867); 
Klinger v. Missouri, 13 Wall. (80 U.S.) 257 (1872); Pierce v. Carskadon, 
16 Wall. (83 U.S.) 234, 239 (1873).

        Other attempts to raise bill-of-attainder claims have been 
unsuccessful. A Court majority denied that a municipal ordinance, that 
required all employees to execute oaths that they had never been 
affiliated with Communist or similar organizations, violated the clause, 
on the grounds that the ordinance merely provided standards of 
qualifications and eligibility for employment.\1813\ A law that 
prohibited any person convicted of a felony and not subsequently 
pardoned from holding office in a waterfront union was not a bill of 
attainder because the ``distinguishing feature of a bill of attainder is 
the substitution of a legislative for a judicial determination of 
guilt'' and the prohibition ``embodies no further implications of 
appellant's guilt than are contained in his 1920 judicial 

        \1813\Garner v. Board of Public Works of Los Angeles, 341 U.S. 
716, 722-723 (1951). Cf. Konigsberg v. State Bar of California, 366 U.S. 
36, 47 n. 9 (1961).
        \1814\De Veau v. Braisted, 363 U.S. 144, 160 (1960). Presumably, 
United States v. Brown, 381 U.S. 437 (1965), does not qualify this 
      Ex Post Facto Laws

        Scope of the Provision.--This clause, like the cognate 
restriction imposed on the Federal Government by Sec. 9, relates only to 
penal and criminal legislation and not to civil laws that affect private 
rights adversely.\1815\ There are three categories of ex post facto 
laws: those ``which punish[] as a crime an act previously committed, 
which was innocent when done; which make[] more burdensome the 
punishment for a crime, after its commission; or which deprive[] one 
charged with crime of any defense available according to law at the time 
when the act was committed.''\1816\ The bar is directed only against 
legislative action and does not touch erroneous or inconsistent 
decisions by the courts.\1817\ Even though a law is

[[Page 363]]
ex post facto and invalid as to crimes committed prior to its enactment, 
it is nonetheless valid as to subsequent offenses.\1818\ If it mitigates 
the rigor of the law in force at the time the crime was committed,\1819\ 
or if it merely penalizes the continuance of conduct lawfully begun 
before its passage, the statute is not ex post facto. Thus, measures 
penalizing the failure of a railroad to cut drains through existing 
embankments\1820\ or making illegal the continued possession of 
intoxicating liquors which were lawfully acquired\1821\ have been held 

        \1815\Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798); Watson 
v. Mercer, 8 Pet. (33 U.S.) 88, 110 (1834); Baltimore and Susquehanna 
Railroad Co. v. Nesbit, 10 How. (51 U.S.) 395, 401 (1850); Carpenter v. 
Pennsylvania, 17 How. (58 U.S.) 456, 463 (1855); Loche v. New Orleans, 4 
Wall. (71 U.S.) 172 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902); 
Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911).
        \1816\Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting 
Beazell v. Ohio, 269 U.S. 167, 169-170 (1925)). Alternatively, the Court 
described the reach of the clause as extending to laws that ``alter the 
definition of crimes or increase the punishment for criminal acts.'' 
Id., 43.
        \1817\Frank v. Mangum, 237 U.S. 309, 344 (1915); Ross v. Oregon, 
227 U.S. 150, 161 (1913). However, an unforeseeable judicial enlargement 
of a criminal statute so as to encompass conduct not covered on the face 
of the statute operates like an ex post facto law if it is applied 
retroactively and violates due process in that event. Bouie v. City of 
Columbia, 378 U.S. 347 (1964). See Marks v. United States, 430 U.S. 188 
(1977) (applying Bouie in context of Sec. 9, cl. 3). But see Splawn v. 
California, 431 U.S. 595 (1977) (rejecting application of Bouie ). The 
Court itself has not always adhered to this standard. See Ginzburg v. 
United States, 383 U.S. 463 (1966).
        \1818\Jachne v. New York, 128 U.S. 189, 190 (1888).
        \1819\Rooney v. North Dakota, 196 U.S. 319, 325 (1905).
        \1820\Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915).
        \1821\Samuels v. McCurdy, 267 U.S. 188 (1925).

        Denial of Future Privileges to Past Offenders.--The right to 
practice a profession may be denied to one who was convicted of an 
offense before the statute was enacted if the offense reasonably may be 
regarded as a continuing disqualification for the profession. Without 
offending the Constitution, statutes barring a person from practicing 
medicine after conviction of a felony\1822\ or excluding convicted 
felons from waterfront union offices, unless pardoned or in receipt of a 
parole board's good conduct certificate,\1823\ may be enforced against a 
person convicted before the measures were passed. But the test oath 
prescribed after the Civil War, whereby office holders, teachers, or 
preachers were required to swear that they had not participated in the 
Rebellion, was held invalid on the ground that it had no reasonable 
relation to fitness to perform official or professional duties, but 
rather was a punishment for past offenses.\1824\ A similar oath required 
of suitors in the courts also was held void.\1825\

        \1822\Hawker v. New York, 170 U.S. 189, 190 (1898). See also 
Reetz v. Michigan, 188 U.S. 505, 509 (1903); Lehmann v. State Board of 
Public Accountancy, 263 U.S. 394 (1923).
        \1823\De Veau v. Braisted, 363 U.S. 144, 160 (1960).
        \1824\Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 316 (1867).
        \1825\Pierce v. Carskadon, 16 Wall. (83 U.S.) 234 (1873).

        Changes in Punishment.--Statutes that changed an indeterminate 
sentence law to require a judge to impose the maximum sentence, whereas 
formerly he could impose a sentence between the minimum and 
maximum,\1826\ required criminals sentenced to death to be kept 
thereafter in solitary confinement,\1827\ or allowed a warden to fix, 
within limits of one week, and keep secret the time

[[Page 364]]
of execution,\1828\ were held to be ex post facto as applied to offenses 
committed prior to their enactment. Because it made more onerous the 
punishment for crimes committed before its enactment, a law, a law that 
altered sentencing guidelines to make it more likely the sentencing 
authority would impose on a defendant a more severe sentence than was 
previously likely and making it impossible for the defendant to 
challenge the sentence was ex post facto as to one who had committed the 
offense prior to the change.\1829\ But laws providing heavier penalties 
for new crimes thereafter committed by habitual criminals,\1830\ 
changing the punishment from hanging to electrocution, fixing the place 
therefor in the penitentiary, and permitting the presence of a greater 
number of invited witnesses,\1831\ or providing for close confinement of 
six to nine months in the penitentiary, in lieu of three to six months 
in jail prior to execution, and substituting the warden for the sheriff 
as hangman, have been sustained.\1832\

        \1826\Lindsey v. Washington, 301 U.S. 397 (1937). But note the 
limitation of Lindsey in Dobbert v. Florida, 432 U.S. 282, 298-301 
        \1827\Holden v. Minnesota, 137 U.S. 483, 491 (1890).
        \1828\Medley, Petitioner, 134 U.S. 160, 171 (1890).
        \1829\Miller v. Florida, 482 U.S. 423 (1987).
        \1830\Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. 
Massachusetts, 180 U.S. 311 (1901); Graham v. West Virginia, 224 U.S. 
616 (1912).
        \1831\Malloy v. South Carolina, 237 U.S. 180 (1915).
        \1832\Rooney v. North Dakota, 196 U.S. 319, 324 (1905).

        In Dobbert v. Florida,\1833\ the Court may have formulated a new 
test for determining when a criminal statute vis-a-vis punishment is ex 
post facto. Defendant murdered two of his children; at the time of the 
commission of the offenses, Florida law provided the death penalty upon 
conviction for certain takings of life. Subsequent to the commission of 
the capital offenses, the Supreme Court held laws similar to Florida's 
unconstitutional to the extent that death was a sentence under them, 
although convictions obtained under the statutes were not to be 
overturned,\1834\ and the Florida Supreme Court voided its death penalty 
statutes on the authority of the High Court decision. The Florida 
legislature then enacted a new capital punishment law, which was 
sustained. Dobbert was convicted and sentenced to death under the new 
law, which was enacted after the commission of his offenses. The Court 
rejected the ex post facto challenge to the sentence on the basis that 
whether the old statute was constitutional or not, ``it clearly 
indicated Florida's view of the severity of murder and of the degree of 
punishment which the legislature wished to impose upon murderers. The 
statute was intended to provide maximum deterrence, and its existence on 
the statute books provided fair warning as to the degree

[[Page 365]]
of culpability which the State ascribed to the act of murder.''\1835\ 
Whether the ``fair warning'' standard is to have any prominent place in 
ex post facto jurisprudence may be an interesting question but it is 
problematical in any event whether the fact situation will occur often 
enough to make the principle applicable in very many cases.

        \1833\432 U.S. 282, 297-298 (1977). Justices Stevens, Brennan, 
and Marshall dissented. Id., 304.
        \1834\Furman v. Georgia, 408 U.S. 238 (1972). The new law was 
sustained in Proffitt v. Florida, 428 U.S. 242 (1976).
        \1835\Id., 432 U.S., 297.

        Changes in Procedure.--An accused person does not have a right 
to be tried in all respects in accordance with the law in force when the 
crime charged was committed.\1836\ Laws shifting the place of trial from 
one county to another,\1837\ increasing the number of appellate judges 
and dividing the appellate court into divisions,\1838\ granting a right 
of appeal to the State,\1839\ changing the method of selecting and 
summoning jurors,\1840\ making separate trials for persons jointly 
indicted a matter of discretion for the trial court rather than a matter 
of right,\1841\ and allowing a comparison of handwriting experts\1842\ 
have been sustained over the objection that they were ex post facto. It 
was said or suggested in a number of these cases, and two decisions were 
rendered precisely on the basis, that the mode of procedure might be 
changed only so long as the substantial rights of the accused were not 
curtailed.\1843\ The Court has now disavowed this position.\1844\ All 
that the language of most of these cases meant was that a legislature 
might not evade the ex post facto clause by labeling changes as 
alteration of ``procedure.'' If a change labeled ``procedural'' effects 
a substantive change in the definition of a crime or increases 
punishment or denies a defense, the clause is invoked; however, if a law 
changes the procedures by which a criminal case is adjudicated, the 
clause is

[[Page 366]]
not implicated, regardless of the increase in the burden on a 

        \1836\Gibson v. Mississippi, 162 U.S. 565, 590 (1896).
        \1837\Gut v. Minnesota, 9 Wall. (76 U.S.) 35, 37 (1870).
        \1838\Duncan v. Missouri, 152 U.S. 377 (1894).
        \1839\Mallett v. North Carolina, 181 U.S. 589, 593 (1901).
        \1840\Gibson v. Mississippi, 162 U.S. 565, 588 (1896).
        \1841\Beazell v. Ohio, 269 U.S. 167 (1925).
        \1842\Thompson v. Missouri, 171 U.S. 380, 381 (1898).
        \1843\E.g., Duncan v. Missouri, 152 U.S. 377, 382-383 (1894); 
Malloy v. South Carolina, 237 U.S. 180, 183 (1915); Beazell v. Ohio, 269 
U.S. 167, 171 (1925). The two cases decided on the basis of the 
distinction were Thompson v. Utah, 170 U.S. 343 (1898) (application to 
felony trial for offense committed before enactment of change from 12-
person jury to an eight-person jury void under clause), and Kring v. 
Missouri, 107 U.S. 221 (1883) (as applied to a case arising before 
change, a law abolishing a rule under which a guilty plea functioned as 
a acquittal of a more serious offense, so that defendant could be tried 
on the more serious charge, a violation of the clause).
        \1844\Collins v. Youngblood, 497 U.S. 37, 44-52 (1990). In so 
doing, the Court overruled Kring and Thompson v. Utah.
        \1845\Id., 44, 52. Youngblood upheld a Texas statute, as applied 
to a person committing an offense and tried before passage of the law, 
that authorized criminal courts to reform an improper verdict assessing 
a punishment not authorized by law, which had the effect of denying 
defendant a new trial to which he would have been previously entitled.
      Obligation of Contracts

        ``Law'' Defined.--The term comprises statutes, constitutional 
provisions,\1846\ municipal ordinances,\1847\ and administrative 
regulations having the force and operation of statutes.\1848\ But are 
judicial decisions within the clause? The abstract principle of the 
separation of powers, at least until recently, forbade the idea that the 
courts ``make'' law and the word ``pass'' in the above clause seemed to 
confine it to the formal and acknowledged methods of exercise of the 
law-making function. Accordingly, the Court has frequently said that the 
clause does not cover judicial decisions, however erroneous, or whatever 
their effect on existing contract rights.\1849\ Nevertheless, there are 
important exceptions to this rule that are hereinafter set forth.

        \1846\Dodge v. Woolsey, 18 How. (59 U.S.) 331 (1856); Ohio & M. 
R. Co. v. McClure, 10 Wall. (77 U.S.) 511 (1871); New Orleans Gas Co. v. 
Louisiana Light Co., 115 U.S. 650 (1885); Bier v. McGehee, 148 U.S. 137, 
140 (1893).
        \1847\New Orleans Water-Works Co. v. Rivers, 115 U.S. 674 
(1885); City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1 (1898); 
City of Vicksburg v. Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast 
Line v. City of Goldsboro, 232 U.S. 548 (1914); Cuyahoga Power Co. v. 
City of Akron, 240 U.S. 462 (1916).
        \1848\Ibid.; see also Grand Trunk Ry. v. Indiana R.R. Comm., 221 
U.S. 400 (1911); Appleby v. Delaney, 271 U.S. 403 (1926).
        \1849\Central Land Company v. Laidley, 159 U.S. 103 (1895). See 
also N.O. Water-Works Co. v. La. Sugar Co., 125 U.S. 18 (1888); Hanford 
v. Davies, 163 U.S. 273 (1896); Ross v. Oregon, 227 U.S. 150 (1913); 
Detroit United Ry. v. Michigan, 242 U.S. 238 (1916); Long Sault 
Development Co. v. Call, 242, U.S. 272, (1916); McCoy v. Union Elevated 
R. Co., 247 U.S. 354 (1918); Columbia G. & E. Ry. v. South Carolina, 261 
U.S. 236 (1923); Tidal Oil Co. v. Flannagan, 263 U.S. 444 (1924).

        Status of Judicial Decision.--While the highest state court 
usually has final authority in determining the construction as well as 
the validity of contracts entered into under the laws of the State, and 
the national courts will be bound by their decision of such matters, 
nevertheless, for reasons that are fairly obvious, this rule does not 
hold when the contract is one whose obligation is alleged to have been 
impaired by state law.\1850\ Otherwise, the chal

[[Page 367]]
lenged state authority could be vindicated through the simple device of 
a modification or outright nullification by the state court of the 
contract rights in issue. Similarly, the highest state court usually has 
final authority in construing state statutes and determining their 
validity in relation to the state constitution. But this rule too has 
had to bend to some extent to the Supreme Court's interpretation of the 
obligation of contracts clause.\1851\

        \1850\Jefferson Branch Bank v. Skelly, 1 Bl. (66 U.S.) 436, 443 
(1862); Bridge Proprietors v. Hoboken Co., 1 Wall. (68 U.S.) 116, 145 
(1863); Wright v. Nagle, 101 U.S. 791, 793 (1880); McGahey v. Virginia, 
135 U.S. 662, 667 (1890); Scott v. McNeal, 154 U.S. 34, 35 (1894); 
Stearns v. Minnesota, 179 U.S. 223, 232-233 (1900); Coombes v. Getz, 285 
U.S. 434, 441 (1932); Atlantic Coast Line R. Co. v. Phillips, 332 U.S. 
168, 170 (1947).
        \1851\McCullough v. Virginia, 172 U.S. 102 (1898); Houston & 
Texas Central R. Co. v. Texas, 177 U.S. 66, 76, 77 (1900); Hubert v. New 
Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. v. Louisiana, 
233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. v. New Orleans, 235 
U.S. 164, 171 (1914).

        Suppose the following situation: (1) a municipality, acting 
under authority conferred by a state statute, has issued bonds in aid of 
a railway company; (2) the validity of this statute has been sustained 
by the highest state court; (3) later the state legislature passes an 
act to repeal certain taxes to meet the bonds; (4) it is sustained in 
doing so by a decision of the highest state court holding that the 
statute authorizing the bonds was unconstitutional ab initio. In such a 
case the Supreme Court would take an appeal from the state court and 
would reverse the latter's decision of unconstitutionality because of 
its effect in rendering operative the act to repeal the tax.\1852\

        \1852\State Bank of Ohio v. Knoop, 16 How. (57 U.S.) 369 (1854), 
and Ohio Life Insurance and Trust Co. v. Debolt, 16 How. (57 U.S.) 416 
(1854) are the leading cases. See also Jefferson Branch Bank v. Skelly, 
1 Bl. (66 U.S.) 436 (1862); Louisiana v. Pilsbury, 105 U.S. 278 (1882); 
McGahey v. Virginia, 135 U.S. 662 (1890); Mobile & Ohio Railroad v. 
Tennessee, 153 U.S. 486 (1894); Bacon v. Texas, 163 U.S. 207 (1896); 
McCullough v. Virginia, 172 U.S. 102 (1898).

        Suppose further, however, that the state court has reversed 
itself on the question of the constitutionality of the bonds in a suit 
by a creditor for payment without there having been an act of repeal. In 
this situation, the Supreme Court would still afford relief if the case 
is one between citizens of different States, which reaches it via a 
lower federal court.\1853\ This is because in cases of this nature the 
Court formerly felt free to determine questions of fundamental justice 
for itself. Indeed, in such a case, the Court has apparently in the past 
regarded itself as free to pass upon the constitutionality of the state 
law authorizing the bonds even though there has been no prior decision 
by the highest state court sustaining them, the idea being that 
contracts entered into simply on the

[[Page 368]]
faith of the presumed constitutionality of a state statute are entitled 
to this protection.\1854\

        \1853\Gelpcke v. Dubuque, 1 Wall. (68 U.S.) 175, 206 (1865); 
Havemayer v. Iowa County, 3 Wall. (70 U.S.) 294 (1866); Thomson v. Lee 
County, 3 Wall. (70 U.S.) 327 (1866); The City v. Lamson, 9 Wall. (76 
U.S.) 477 (1870); Olcott v. The Supervisors, 16 Wall. (83 U.S.) 678 
(1873); Taylor v. Ypsilanti, 105 U.S. 60 (1882); Anderson v. Santa Anna, 
116 U.S. 356 (1886); Wilkes County v. Coler, 180 U.S. 506 (1901).
        \1854\Great Southern Hotel Co. v. Jones, 193 U.S. 532, 548 

        In other words, in cases of which it has jurisdiction because of 
diversity of citizenship, the Court has held that the obligation of 
contracts is capable of impairment by subsequent judicial decisions no 
less than by subsequent statutes and that it is able to prevent such 
impairment. In cases, on the other hand, of which it obtains 
jurisdiction only on the constitutional ground and by appeal from a 
state court, it has always adhered in terms to the doctrine that the 
word ``laws'' as used in Article I, Sec. 10, does not comprehend 
judicial decisions. Yet even in these cases, it will intervene to 
protect contracts entered into on the faith of existing decisions from 
an impairment that is the direct result of a reversal of such decisions, 
but there must be in the offing, as it were, a statute of some kind--one 
possibly many years older than the contract rights involved--on which to 
pin its decision.\1855\

        \1855\Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New 
York & Harlem Railroad Co., 197 U.S. 544, 570 (1905).

        In 1922, Congress, through an amendment to the Judicial Code, 
endeavored to extend the reviewing power of the Supreme Court to suits 
involving ''. . . the validity of a contract wherein it is claimed that 
a change in the rule of law or construction of statutes by the highest 
court of a State applicable to such contract would be repugnant to the 
Constitution of the United States. . . .'' This appeared to be an 
invitation to the Court to say frankly that the obligation of a contract 
can be impaired as well by a subsequent decision as by a subsequent 
statute. The Court, however, declined the invitation in an opinion by 
Chief Justice Taft that reviewed many of the cases covered in the 
preceding paragraphs.

        Dealing with Gelpcke and adherent decisions, Chief Justice Taft 
said: ``These cases were not writs of error to the Supreme Court of a 
State. They were appeals or writs of error to federal courts where 
recovery was sought upon municipal or county bonds or some other form of 
contracts, the validity of which had been sustained by decisions of the 
Supreme Court of a State prior to their execution, and had been denied 
by the same court after their issue or making. In such cases the federal 
courts exercising jurisdiction between citizens of different States held 
themselves free to decide what the state law was, and to enforce it as 
laid down by the state Supreme Court before the contracts were made 
rather than in later decisions. They did not base this conclusion on 
Article I, Sec. 10, of the Federal Constitution, but on the state law as 
they determined it,

[[Page 369]]
which, in diverse citizenship cases, under the third Article of the 
Federal Constitution they were empowered to do. Burgess v. Seligman, 107 
U.S. 20 (1883).''\1856\ While doubtless this was an available 
explanation in 1924, the decision in 1938 in Erie Railroad Co. v. 
Tompkins,\1857\ so cut down the power of the federal courts to decide 
diversity of citizenship cases according to their own notions of 
``general principles of common law'' as to raise the question whether 
the Court will not be required eventually to put Gelpcke and its 
companions and descendants squarely on the obligation of contracts 
clause or else abandon them.

        \1856\Tidal Oil Company v. Flanagan, 263 U.S. 444, 450, 451-452 
        \1857\304 U.S. 64 (1938).

        ``Obligation'' Defined.--A contract is analyzable into two 
elements: the agreement, which comes from the parties, and the 
obligation, which comes from the law and makes the agreement binding on 
the parties. The concept of obligation is an importation from the Civil 
Law and its appearance in the contracts clause is supposed to have been 
due to James Wilson, a graduate of Scottish universities and a Civilian. 
Actually, the term as used in the contracts clause has been rendered 
more or less superfluous by the doctrine that the law in force when a 
contract is made enters into and comprises a part of the contract 
itself.\1858\ Hence, the Court sometimes recognizes the term in its 
decisions applying the clause, sometimes ignores it. In Sturges v. 
Crowninshield,\1859\ Marshall defined ``obligation of contract'' as 
``the law which binds the parties to perform their agreement;'' but a 
little later the same year he sets forth the points presented for 
consideration in Dartmouth College v. Woodward,\1860\ to be: ``1. Is 
this contract protected by the Constitution of the United States? 2. Is 
it impaired by the acts under which the defendant holds?''\1861\ The 
word ``obligation'' undoubtedly does carry the implication that the 
Constitution was intended to protect only executory contracts--i.e., 
contracts still awaiting performance, but this implication was early 
rejected for a certain class of contracts, with immensely important 
result for the clause.

        \1858\Walker v. Whitehead, 16 Wall. (83 U.S.) 314 (1873); Wood 
v. Lovett, 313 U.S. 362, 370 (1941).
        \1859\4 Wheat. (17 U.S.) 122, 197 (1819); see also Curran v. 
Arkansas, 15 How. (56 U.S.) 304 (1854).
        \1860\4 Wheat. (17 U.S.) 518 (1819).
        \1861\Id., 627.

        ``Impair'' Defined.--``The obligations of a contract,'' says 
Chief Justice Hughes for the Court in Home Building & Loan Assn. v. 
Blaisdell,\1862\ ``are impaired by a law which renders them in

[[Page 370]]
valid, or releases or extinguishes them . . ., and impairment . . . has 
been predicated upon laws which without destroying contracts derogate 
from substantial contractual rights.''\1863\ But he adds: ``Not only are 
existing laws read into contracts in order to fix obligations as between 
the parties, but the reservation of essential attributes of sovereign 
power is also read into contracts as a postulate of the legal order. The 
policy of protecting contracts against impairment presupposes the 
maintenance of a government by virtue of which contractual relations are 
worthwhile,--a government which retains adequate authority to secure the 
peace and good order of society. This principle of harmonizing the 
constitutional prohibition with the necessary residuum of state power 
has had progressive recognition in the decisions of this Court.''\1864\ 
In short, the law from which the obligation stems must be understood to 
include constitutional law and, moreover a ``progressive'' 
constitutional law.\1865\

        \1862\290 U.S. 398 (1934).
        \1863\Id., 431.
        \1864\Id., 435. And see City of El Paso v. Simmons, 379 U.S. 497 
        \1865\``The Blaisdell decision represented a realistic 
appreciation of the fact that ours is an evolving society and that the 
general words of the contract clause were not intended to reduce the 
legislative branch of government to helpless impotency.'' Justice Black, 
in Wood v. Lovett, 313 U.S. 362, 383 (1941).

        Vested Rights Not Included.--The term ``contracts'' is used in 
the contracts clause in its popular sense of an agreement of minds. The 
clause therefore does not protect vested rights that are not referable 
to such an agreement between the State and an individual, such as the 
right of recovery under a judgment. The individual in question may have 
a case under the Fourteenth Amendment, but not one under Article I, 
Sec. 10.\1866\

        \1866\Crane v. Hahlo, 258 U.S. 142, 145-146 (1922); Louisiana ex 
rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 288 (1883); Morley v. 
Lake Shore Railway Co., 146 U.S. 162, 169 (1892). That the obligation of 
contracts clause did not protect vested rights merely as such was stated 
by the Court as early as Satterlee v. Matthewson, 2 Pet. (27 U.S.) 380, 
413 (1829); and again in Charles River Bridge v. Warren Bridge, 11 Pet. 
(36 U.S.) 420, 539-540 (1837).

        Public Grants That Are Not ``Contracts''.--Not all grants by a 
State constitute ``contracts'' within the sense of Article I, Sec. 10. 
In his Dartmouth College decision, Chief Justice Marshall conceded that 
``if the act of incorporation be a grant of political power, if it 
creates a civil institution, to be employed in the administration of the 
government . . . the subject is one in which the legislature of the 
State may act according to its own judgment,'' unrestrained by the 
Constitution\1867\--thereby drawing a line between ``public'' and

[[Page 371]]
``private'' corporations that remained undisturbed for more than half a 

        \1867\Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518, 629 
        \1868\In Munn v. Illinois, 94 U.S. 113 (1877) a category of 
``business affected with a public interest'' and whose property is 
``impressed with a public use'' was recognized. A corporation engaged in 
such a business becomes a ``quasi-public'' corporation, the power of the 
State to regulate which is larger than in the case of a purely private 
corporation. Inasmuch as most corporations receiving public franchises 
are of this character, the final result of Munn was to enlarge the 
police power of the State in the case of the most important 
beneficiaries of the Dartmouth College decision.

        It has been subsequently held many times that municipal 
corporations are mere instrumentalities of the State for the more 
convenient administration of local governments, whose powers may be 
enlarged, abridged, or entirely withdrawn at the pleasure of the 
legislature.\1869\ The same principle applies, moreover, to the property 
rights which the municipality derives either directly or indirectly from 
the State. This was first held as to the grant of a franchise to a 
municipality to operate a ferry and has since then been recognized as 
the universal rule.\1870\ It was stated in a case decided in 1923 that 
the distinction between the municipality as an agent of the State for 
governmental purposes and as an organization to care for local needs in 
a private or proprietary capacity, while it limited the legal liability 
of municipalities for the negligent acts or omissions of its officers or 
agents, did not, on the other hand, furnish ground for the application 
of constitutional restraints against the State in favor of its own 
municipalities.\1871\ Thus, no contract rights were impaired by a 
statute relocating a county seat, even though the former location was by 
law to be ``permanent'' and the citizens of the community had donated 
land and furnished bonds for the erection of public buildings.\1872\ 
Similarly, a statute changing the boundaries of a school district, 
giving to the new district the property within its limits that had 
belonged to the former district, and requiring the new district to 
assume the debts of the old district, did not impair the obligation of 
contracts.\1873\ Nor was the contracts clause violated by state 
legislation authorizing state control over insolvent communities through 
a Municipal Finance Commission.\1874\

        \1869\Meriwether v. Garrett, 102 U.S. 472 (1880); Covington v. 
Kentucky, 173 U.S. 231 (1899); Hunter v. Pittsburgh, 207 U.S. 161 
        \1870\East Hartford v. Hartford Bridge Co., 10 How. (51 U.S.) 
511 (1851); Hunter v. Pittsburgh, 207 U.S. 161 (1907).
        \1871\City of Trenton v. New Jersey 262 U.S. 182, 191 (1923).
        \1872\Newton v. Commissioners, 100 U.S. 548 (1880).
        \1873\Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).
        \1874\Faitoute Co. v. City of Asbury Park, 316 U.S. 502 (1942).

        On the same ground of public agency, neither appointment nor 
election to public office creates a contract in the sense of Article I,

[[Page 372]]
Sec. 10, whether as to tenure, or salary, or duties, all of which 
remain, so far as the Constitution of the United States is concerned, 
subject to legislative modification or outright repeal.\1875\ Indeed, 
there can be no such thing in this country as property in office, 
although the common law sustained a different view that sometimes found 
reflection in early cases.\1876\ When, however, services have once been 
rendered, there arises an implied contract that they shall be 
compensated at the rate in force at the time they were rendered.\1877\ 
Also, an express contract between the State and an individual for the 
performance of specific services falls within the protection of the 
Constitution. Thus, a contract made by the governor pursuant to a 
statute authorizing the appointment of a commissioner to conduct, over a 
period of years, a geological, mineralogical, and agricultural survey of 
the State, for which a definite sum had been authorized, was held to 
have been impaired by repeal of the statute.\1878\ But a resolution of a 
local board of education reducing teachers' salaries for the school year 
1933-1934, pursuant to an act of the legislature authorizing such 
action, was held not to impair the contract of a teacher who, having 
served three years, was by earlier legislation exempt from having his 
salary reduced except for inefficiency or misconduct.\1879\ Similarly, 
it was held that an Illinois statute that reduced the annuity payable to 
retired teachers under an earlier act did not violate the contracts 
clause, since it had not been the intention of the earlier act to 
propose a contract but only to put into effect a general policy.\1880\ 
On the other hand, the right of one, who had become a `permanent 
teacher'' under the Indiana Teachers Tenure Act of 1927, to continued 
employment was held to be contractual and to have been impaired by the 
repeal in 1933 of the earlier act.\1881\

        \1875\Butler v. Pennsylvania, 10 How. (51 U.S.) 402 (1850); Fisk 
v. Jefferson Policy Jury, 116 U.S. 131 (1885); Dodge v. Board of 
Education, 302 U.S. 74 (1937); Mississippi ex rel. Robertson v. Miller, 
276 U.S. 174 (1928).
        \1876\Butler v. Pennsylvania, 10 How. (51 U.S.) 420 (1850). Cf. 
Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803); Hoke v. Henderson, 154 
N.C. (4 Dev.) 1 (1833). See also United States v. Fisher, 109 U.S. 143 
(1883); United States v. Mitchell, 109 U.S. 146 (1883); Crenshaw v. 
United States, 134 U.S. 99 (1890).
        \1877\Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); 
Mississippi ex rel. Robertson v. Miller, 276 U.S. 174 (1928).
        \1878\Hall v. Wisconsin, 103 U.S. 5 (1880). Cf. Higginbotham v. 
City of Baton Rouge, 306 U.S. 535 (1930).
        \1879\Phelps v. Board of Education, 300 U.S. 319 (1937).
        \1880\Dodge v. Board of Education, 302 U.S. 74 (1937).
        \1881\Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938).

        Tax Exemptions: When Not ``Contracts''.--From a different point 
of view, the Court has sought to distinguish between grants of 
privileges, whether to individuals or to corporations, which are 
contracts and those which are mere revocable licenses, although on

[[Page 373]]
account of the doctrine of presumed consideration mentioned earlier, 
this has not always been easy to do. In pursuance of the precedent set 
in New Jersey v. Wilson,\1882\ the legislature of a State ``may exempt 
particular parcels of property or the property of particular persons or 
corporations from taxation, either for a specified period or 
perpetually, or may limit the amount or rate of taxation, to which such 
property shall be subjected,'' and such an exemption is frequently a 
contract within the sense of the Constitution. Indeed this is always so 
when the immunity is conferred upon a corporation by the clear terms of 
its charter.\1883\ When, on the other hand, an immunity of this sort 
springs from general law, its precise nature is more open to doubt, as a 
comparison of decisions will serve to illustrate.

        \1882\7 Cr. (11 U.S.) 164 (1812).
        \1883\The Delaware Railroad Tax, 18 Wall. (85 U.S.) 206, 225 
(1874); Pacific Railroad Company v. Maguire, 20 Wall. (87 U.S.) 36, 43 
(1874); Humphrey v. Pegues, 16 Wall. (83 U.S.) 244, 249 (1873); Home of 
the Friendless v. Rouse, 8 Wall. (75 U.S.) 430, 438 (1869).

        In State Bank of Ohio v. Knoop,\1884\ a closely divided Court 
held that a general banking law of Ohio, which provided that companies 
complying therewith and their stockholders should be exempt from all but 
certain taxes, was, as to a bank organized under it and its 
stockholders, a contract within the meaning of Article I, Sec. 10. The 
provision was not, the Court said, ``a legislative command nor a rule of 
taxation until changed, but a contract stipulating against any change, 
from the nature of the language used and the circumstances under which 
it was adopted.''\1885\ When, however, the State of Michigan pledged 
itself, by a general legislative act, not to tax any corporation, 
company, or individual undertaking to manufacture salt in the State from 
water there obtained by boring on property used for this purpose and, 
furthermore, to pay a bounty on the salt so manufactured, it was held 
not to have engaged itself within the constitutional sense. ``General 
encouragements,'' said the Court, ``held out to all persons 
indiscriminately, to engage in a particular trade or manufacture, 
whether such encouragement be in the shape of bounties or drawbacks, or 
other advantage, are always under the legislative control, and may be 
discontinued at any time.''\1886\ So far as exemption from taxation is 
concerned the difference between these two cases is obviously slight, 
but the later

[[Page 374]]
one is unquestionable authority for the proposition that legislative 
bounties are repealable at will.

        \1884\16 How. (57 U.S.) 369 (1854).
        \1885\Id., 382-383.
        \1886\Salt Company v. East Saginaw, 13 Wall. (80 U.S.) 373, 379 
(1872). See also Welch v. Cook, 97 U.S. 541 (1879); Grand Lodge v. New 
Orleans, 166 U.S. 143 (1897); Wisconsin & Michigan Ry. Co. v. Powers, 
191 U.S. 379 (1903). Cf. Ettor v. Tacoma, 228 U.S. 148 (1913), in which 
it was held that the repeal of a statute providing for consequential 
damages caused by changes of grades of streets could not 
constitutionally affect an already accrued right to compensation.

        Furthermore, exemptions from taxation have in certain cases been 
treated as gratuities repealable at will, even when conferred by 
specific legislative enactments. This would seem always to be the case 
when the beneficiaries were already in existence when the exemption was 
created and did nothing of a more positive nature to qualify for it than 
to continue in existence.\1887\ Yet the cases are not always easy to 
explain in relation to each other, except in light of the fact that the 
Court's point of view has altered from time to time.\1888\

        \1887\See Rector of Christ Church, Phila. v. County of 
Philadelphia, 24 How. (65 U.S.) 300, 302 (1861); Seton Hall College v. 
South Orange, 242 U.S. 100 (1916).
        \1888\Compare the above cases with Home of the Friendless v. 
Rouse, 8 Wall. (75 U.S.) 430, 437 (1869); Illinois Central Railroad v. 
Decatur, 147 U.S. 190 (1893), with Wisconsin & Michigan Ry. Co. v. 
Powers, 191 U.S. 379 (1903).

        ``Contracts'' Include Public Contracts and Corporate Charters.--
The question, which was settled very early, was whether the clause was 
intended to be applied solely in protection of private contracts or in 
the protection also of public grants, or, more broadly, in protection of 
public contracts, in short, those to which a State is a party.\1889\ 
Support for the affirmative answer accorded this question could be 
derived from the following sources. For one thing, the clause departed 
from the comparable provision in the Northwest Ordinance (1787) in two 
respects: first, in the presence of the word ``obligation;'' secondly, 
in the absence of the word ``private.'' There is good reason for 
believing that Wilson may have been responsible for both alterations, 
inasmuch as two years earlier he had denounced a current proposal to 
repeal the Bank of North America's Pennsylvania charter in the following 
words: ``If the act for incorporating the subscribers to the Bank of 
North America shall be repealed in this manner, every precedent will be 
established for repealing, in the same manner, every other legisla

[[Page 375]]
tive charter in Pennsylvania. A pretence, as specious as any that can be 
alleged on this occasion, will never be wanting on any future occasion. 
Those acts of the state, which have hitherto been considered as the sure 
anchors of privilege and of property, will become the sport of every 
varying gust of politicks, and will float wildly backwards and forwards 
on the irregular and impetuous tides of party and faction.''\1890\

        \1889\According to Benjamin F. Wright, throughout the first 
century of government under the Constitution ``the contract clause had 
been considered in almost forty per cent of all cases involving the 
validity of State legislation,'' and of these the vast proportion 
involved legislative grants of one type or other, the most important 
category being charters of incorporation. However, the numerical 
prominence of such grants in the cases does not overrate their relative 
importance from the point of view of public interest. B. Wright, The 
Contract Clause of the Constitution, (Boston: 1938), 95.
        Madison explained the clause by allusion to what had occurred 
``in the internal administration of the States'' in the years preceding 
the Constitutional Convention, in regard to private debts. Violations of 
contracts had become familiar in the form of depreciated paper made 
legal tender, of property substituted for money, of installment laws, 
and of the occlusions of the courts of justice. 3 M. Farrand, The 
Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 
548; The Federalist, No. 44 (J. Cooke ed. 1961), 301-302.
        \1890\2 The Works of James Wilson, R. McCloskey ed. (Cambridge: 
1967), 834.

        Furthermore, in its first important constitutional case, that of 
Chisholm v. Georgia,\1891\ the Court ruled that its original 
jurisdiction extended to an action in assumpsit brought by a citizen of 
South Carolina against the State of Georgia. This construction of the 
federal judicial power was, to be sure, promptly repealed by the 
Eleventh Amendment, but without affecting the implication that the 
contracts protected by the Constitution included public contracts.

        \1891\2 Dall. (2 U.S.) 419 (1793).

        One important source of this diversity of opinion is to be found 
in that ever welling spring of constitutional doctrine in early days, 
the prevalence of natural law notions and the resulting vague 
significance of the term ``law.'' In Sturges v. Crowninshield, Marshall 
defined the obligation of contracts as ``the law which binds the parties 
to perform their undertaking.'' Whence, however, comes this law? If it 
comes from the State alone, which Marshall was later to deny even as to 
private contracts,\1892\ then it is hardly possible to hold that the 
States' own contracts are covered by the clause, which manifestly does 
not create an obligation for contracts but only protects such obligation 
as already exists. But, if, on the other hand, the law furnishing the 
obligation of contracts comprises Natural Law and kindred principles, as 
well as law which springs from state authority, then, inasmuch as the 
State itself is presumably bound by such principles, the State's own 
obligations, so far as harmonious with them, are covered by the clause.

        \1892\Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 338 (1827).

        Fletcher v. Peck,\1893\ has the double claim to fame in that it 
was the first case in which the Supreme Court held a state enactment to 
be in conflict with the Constitution, and also the first case to hold 
that the contracts clause protected public grants. By an act passed on 
January 7, 1795, the Georgia Legislature directed the sale to four land 
companies of public lands comprising most of what are now the States of 
Alabama and Mississippi. As soon became known, the passage of the 
measure had been secured by open and wholesale bribery. So when a new 
legislature took over in the

[[Page 376]]
winter of 1795-1796, almost its first act was to revoke the sale made 
the previous year.

        \1893\6 Cr. (10 U.S.) 87 (1810).

        Meantime, however, the land companies had disposed of several 
millions of acres of their holdings to speculators and prospective 
settlers, and following the rescinding act some of these took counsel 
with Alexander Hamilton as to their rights. In an opinion which was 
undoubtedly known to the Court when it decided Fletcher v. Peck, 
Hamilton characterized the repeal as contravening ``the first principles 
of natural justice and social policy,'' especially so far as it was made 
``to the prejudice . . . of third persons . . . innocent of the alleged 
fraud or corruption; . . . moreover,'' he added, ``the Constitution of 
the United States, article first, section tenth, declares that no State 
shall pass a law impairing the obligations of contract. This must be 
equivalent to saying no State shall pass a law revoking, invalidating, 
or altering a contract. Every grant from one to another, whether the 
grantor be a State or an individual, is virtually a contract that the 
grantee shall hold and enjoy the thing granted against the grantor, and 
his representatives. It, therefore, appears to me that taking the terms 
of the Constitution in their large sense, and giving them effect 
according to the general spirit and policy of the provisions, the 
revocation of the grant by the act of the legislature of Georgia may 
justly be considered as contrary to the Constitution of the United 
States, and, therefore null. And that the courts of the United States, 
in cases within their jurisdiction, will be likely to pronounce it 
so.''\1894\ In the debate to which the ``Yazoo Land Frauds,'' as they 
were contemporaneously known, gave rise in Congress, Hamilton's views 
were quoted frequently.

        \1894\B. Wright, The Contract Clause of the Constitution 
(Boston: 1938), 22. Professor Wright dates Hamilton's pamphlet, 1796.

        So far as it invoked the obligation of contracts clause, 
Marshall's opinion in Fletcher v. Peck performed two creative acts. He 
recognized that an obligatory contract was one still to be performed--in 
other words, was an executory contract, also that a grant of land was an 
executed contract--a conveyance. But, he asserted, every grant is 
attended by ``an implied contract'' on the part of the grantor not to 
claim again the thing granted. Thus, grants are brought within the 
category of contracts having continuing obligation and so within Article 
I, Sec. 10. But the question still remained of the nature of this 
obligation. Marshall's answer to this can only be inferred from his 
statement at the end of his opinion. The State of Georgia, he says, 
``was restrained'' from the passing of the rescinding act ``either by 
general principles which are common to our

[[Page 377]]
free institutions, or by particular provisions of the Constitution of 
the United States.''\1895\

        \1895\6 Cr. (10 U.S.) 87, 139 (1810). Justice Johnson, in his 
concurring opinion, relied exclusively on general principles. ``I do not 
hesitate to declare, that a State does not possess the power of revoking 
its own grants. But I do it, on a general principle, on the reason and 
nature of things; a principle which will impose laws even on the 
Deity.'' Id., 143.

        The protection thus thrown about land grants was presently 
extended, in the case of New Jersey v. Wilson,\1896\ to a grant of 
immunity from taxation that the State of New Jersey had accorded certain 
Indian lands, and several years after that, in the Dartmouth College 
case,\1897\ to the charter privileges of an eleemosynary corporation.

        \1896\7 Cr. (11 U.S.) 164 (1812). The exemption from taxation 
which was involved in this case was held in 1886 to have lapsed through 
the acquiescence for sixty years by the owners of the lands in the 
imposition of taxes upon these. Given v. Wright, 117 U.S. 648 (1886).
        \1897\Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518 

        In City of El Paso v. Simmons,\1898\ the Court held, over a 
vigorous dissent by Justice Black, that Texas had not violated this 
clause when it amended its laws governing the sale of public lands so as 
to restrict the previously unlimited right of a delinquent to reinstate 
himself upon forfeited land by a single payment of all past interest 

        \1898\379 U.S. 497 (1965). See also Thorpe v. Housing Authority 
of City of Durham, 393 U.S. 268, 278-279 (1969).

        Corporate Charters: Different Ways of Regarding.--There are 
three ways in which the charter of a corporation may be regarded. In the 
first place, it may be thought of simply as a license terminable at will 
by the State, like a liquor-seller's license or an auctioneer's license, 
but affording the incorporators, so long as it remains in force, the 
privileges and advantages of doing business in the form of a 
corporation. Nowadays, indeed, when corporate charters are usually 
issued to all legally qualified applicants by an administrative officer 
who acts under a general statute, this would probably seem to be the 
natural way of regarding them were it not for the Dartmouth College 
decision. But, in 1819, charters were granted directly by the state 
legislatures in the form of special acts and there were very few profit-
taking corporations in the country. The later extension of the benefits 
of the Dartmouth College decision to corporations organized under 
general law took place without discussion.

        Secondly, a corporate charter may be regarded as a franchise 
constituting a vested or property interest in the hands of the holders, 
and therefore as forfeitable only for abuse or in accordance with its 
own terms. This is the way in which some of the early

[[Page 378]]
state courts did regard them at the outset.\1899\ It is also the way in 
which Blackstone regarded them in relation to the royal prerogative, 
although not in relation to the sovereignty of Parliament, and the same 
point of view found expression in Story's concurring opinion in 
Dartmouth College v. Woodward, as it did also in Webster's argument in 
that case.\1900\

        \1899\In 1806 Chief Justice Parsons of the Supreme Judicial 
Court of Massachusetts, without mentioning the contracts clause, 
declared that rights legally vested in a corporation cannot be 
``controlled of destroyed by a subsequent statute, unless a power [for 
that purpose] be reserved to the legislature in the act of 
incorporation,'' Wales v. Stetson, 2 Mass. 142 (1806). See also 
Stoughton v. Baker, 4 Mass. 521 (1808) to like effect; cf. Locke v. 
Dane, 9 Mass. 360 (1812) in which it is said that the purpose of the 
contracts clause was to provide against paper money and insolvent laws. 
Together these holdings add up to the conclusion that the reliance of 
the Massachusetts court was on ``fundamental principles,'' rather than 
the contracts clause.
        \1900\4 Wheat. (17 U.S.), 577-595 (Webster's argument); id., 666 
(Story's opinion). See also Story's opinion for the Court in Terrett v. 
Taylor, 9 Cr. (13 U.S.) 43 (1815).

        The third view is the one formulated by Chief Justice Marshall 
in his controlling opinion in Dartmouth College v. Woodward.\1901\ This 
is that the charter of Dartmouth College, a purely private institution, 
was the outcome and partial record of a contract between the donors of 
the college, on the one hand, and the British Crown, on the other, and 
the contract still continued in force between the State of New 
Hampshire, as the successor to the Crown and Government of Great 
Britain, and the trustees, as successors to the donors. The charter, in 
other words, was not simply a grant--rather it was the documentary 
record of a still existent agreement between still existent 
parties.\1902\ Taking this view, which he developed with great ingenuity 
and persuasiveness, Marshall was able to appeal to the obligation of 
contracts clause directly, and without further use of his fiction in 
Fletcher v. Peck of an executory contract accompanying the grant.

        \1901\4 Wheat. (17 U.S.) 518 (1819).
        \1902\Id., 627.

        A difficulty still remained, however, in the requirement that a 
contract, before it can have obligation, must import consideration, that 
is to say, must be shown not to have been entirely gratuitous on either 
side. Moreover, the consideration, which induced the Crown to grant a 
charter to Dartmouth College, was not merely a speculative one. It 
consisted of the donations of the donors to the important public 
interest of education. Fortunately or unfortunately, in dealing with 
this phase of the case, Marshall used more sweeping terms than were 
needed. ``The objects for which a corporation is created,'' he wrote, 
``are universally such as the government wishes to promote. They are 
deemed beneficial to the country; and this benefit constitutes the 
consideration, and in most cases,

[[Page 379]]
the sole consideration of the grant.'' In other words, the simple fact 
of the charter having been granted imports consideration from the point 
of view of the State.\1903\ With this doctrine before it, the Court in 
Providence Bank v. Billings,\1904\ and again in Charles River Bridge v. 
Warren Bridge,\1905\ admitted, without discussion of the point, the 
applicability of the Dartmouth College decision to purely business 

        \1903\Id., 637; see also Home of the Friendless v. Rouse, 8 
Wall. (75 U.S.) 430, 437 (1869).
        \1904\4 Pet. (29 U.S.) 514 (1830).
        \1905\11 Pet. (36 U.S.) 420 (1837).

        Reservation of Right to Alter or Repeal Corporate Charters.--It 
is next in order to consider four principles or doctrines whereby the 
Court has itself broken down the force of the Dartmouth College decision 
in great measure in favor of state legislative power. By the logic of 
the Dartmouth College decision itself, the State may reserve in a 
corporate charter the right to ``amend, alter, and repeal'' the same, 
and such reservation becomes a part of the contract between the State 
and the incorporators, the obligation of which is accordingly not 
impaired by the exercise of the right.\1906\ Later decisions recognize 
that the State may reserve the right to amend, alter, and repeal by 
general law, with the result of incorporating the reservation in all 
charters of subsequent date.\1907\ There is, however, a difference 
between a reservation by a statute and one by constitutional provision. 
While the former may be repealed as to a subsequent charter by the 
specific terms thereof, the latter may not.\1908\

        \1906\Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518, 712 
(1819) (Justice Story).
        \1907\Home of the Friendless v. Rouse, 8 Wa