Separation of Powers & Checks & Balances
      The Theory Elaborated & Implemented
      Judicial Enforcement
Bicameralism
Enumerated, Implied, Resulting, & Inherent Powers
Delegation of Legislative Power
      Origin of the Doctrine of Nondelegability
          Delegation Which Is Permissible
          Filling Up the Details
          Contingent Legislation
      The Effective Demise of the Nondelegation Doctrine
          The Regulatory State
          Standards
          Foreign Affairs
          Delegations to the States
          Delegation to Private Persons
          Delegation and Individual Liberties
          Punishment of Violations
      Congressional Investigations
          Source of the Power to Investigate
          Investigations of Conduct of Executive Department
          Investigations of Members of Congress
          Investigations in Aid of Legislation
          Purpose
          Protection of Witnesses: Pertinency and Related Matters
          Protection of Witnesses: Constitutional Guarantees
      Sanctions of the Investigatory Power: Contempt

Section 2. The U.S. House of Representatives

Clause 1. Congressional Districting
      Elector Qualifications
Clause 2. Qualifications of Members of Congress
      When the Qualifications Must Be Possessed
      Exclusivity of Constitutional Qualifications
      Congressional Additions       State Additions
Clause 3. Apportionment of Seats in the House
      The Census Requirement
Clause 4. Vacancies
Clause 5. Officers and Power of Impeachment

Section 3. The U.S. Senate

Clause 1. Composition and Selection
Clause 2. Classes of Senators
Clause 3. Qualifications
Clause 4. The Vice President
Clause 5. Officers
Clause 6. Trial of Impeachments
Clause 7. Judgments on Impeachment

Section 4. Elections

Clause 1. Congressional Power to Regulate
      Federal Legislation Protecting the Electoral Process
Clause 2. Time of Assembling

Section 5. Special Powers & Duties of Each House of Congress

Clause 1. Power to Judge Elections
      "A Quorum to Do Business''
Clause 2. Rules of Proceedings
      Powers of the Houses Over Members
Clause 3. Duty to Keep a Journal
Clause 4. Adjournments

Section 6. Rights & Disabilities of Members of Congress

Clause 1. Compensation & Immunities

      Congressional Pay
      Privilege from Arrest
      Privilege of Speech or Debate
          Members
          Congressional Employees
Clause 2. Disabilities
      Appointment to Executive Office
      Incompatible Offices

Section 7. The Legislative Process

Clause 1. Revenue Bills
Clause 2. Approval by the President
      The Veto Power
Clause 3. Presentation of Resolutions
      The Legislative Veto

Section 8. Powers of Congress

Clause 1. Power to Tax and Spend
      Kinds of Taxes Permitted
          Decline of the Forbidden Subject Matter Test
          Federal Taxation of State Interests
          Scope of State Immunity from Federal Taxation
          Uniformity Requirement
      Purposes of Taxation
          Regulation by Taxation
          Extermination by Taxation
          Promotion of Business: Protective Tariffs
      Spending for the General Welfare
          Scope of the Power
      Social Security Act Cases
      An Unrestrained Federal Spending Power
      Conditional Grants-In-Aid
      Earmarked Funds
      Debts of the United States
Clause 2. Borrowing Power
Clause 3. Commerce Power
      Power to Regulate Commerce
          Purposes Served by the Grant of Power
          Definition of Terms
              Commerce
              Among the Several States
              Regulate
              Necessary and Proper Clause
              Federalism Limits on Exercise of Commerce Power
              Illegal Commerce
      Interstate versus Foreign Commerce
      Instruments of Commerce
      Congressional Regulation of Waterways
          Navigation
          Hydroelectric Power; Flood Control
      Congressional Regulation of Land Transportation
          Federal Stimulation of Land Transportation
          Federal Regulation of Land Transportation
          Federal Regulation of Intrastate Rates
          Federal Protection of Labor in Interstate Rail Transportation
          Regulation of Other Agents of Carriage an Communications
      Congressional Regulation of Commerce as Traffic
          The Sherman Act: Sugar Trust Case
          Sherman Act Revived
          The ``Current of Commerce'' Concept: The Swift Case
          The Danbury Hatters Case
          Stockyards and Grain Futures Acts
          Securities and Exchange Commission
      Congressional Regulation of Production and Industrial Relations:
      Antidepression Legislation
          National Industrial Recovery Act
          Agricultural Adjustment Act
          Bituminous Coal Conservation Act
          Railroad Retirement Act
          National Labor Relations Act
          Fair Labor Standards Act
          Agricultural Marketing Agreement Act
      Acts of Congress Prohibiting Commerce
          Foreign Commerce: Jefferson's Embargo
          Foreign Commerce: Protective Tariffs
          Foreign Commerce: Banned Articles
          Interstate Commerce: Power to Prohibit Questioned
          Interstate Commerce: National Prohibitions & State Police Power
          The Lottery Case
          The Darby Case: The Commerce Clause as a Source of National Police           Power
          Is There an Intrastate Barrier to Congress' Commerce Power?
          Civil Rights
          Criminal Law
      The Commerce Clause as a Restraint on State Powers
          Doctrinal Background
          The State Proprietary Activity Exception
          Congressional Authorization of Impermissible State Action
      State Taxation and Regulation: The Old Law
          General Considerations
          Taxation
          Regulation
      State Taxation and Regulation: The Modern Law
          General Considerations
          Taxation
          Regulation
      Foreign Commerce and State Powers
      Concurrent National and State Jurisdiction
          The General Issue: Preemption
              Preemption Standards
              The Standards Applied
              Federal Versus State Labor Laws
      Commerce With Indian Tribes
Clause 4. Naturalization and Bankruptcies
      Naturalization and Citizenship
          Nature and Scope of Congress' Power
          Categories of Citizens: Birth & Naturalization
          The Naturalization of Aliens
      Rights of Naturalized Persons
      Expatriation: Loss of Citizenship
      Aliens
          The Power of Congress to Exclude Aliens
          Deportation
      Bankruptcy
          Persons Who May Be Released from Debt
          Liberalization of Relief Granted and Expansion of the Rights of the Trustee
          Constitutional Limitations on the Bankruptcy Power
          Constitutional Status of State Insolvency Laws: Preemption
Clauses 5 and 6. Money
      Fiscal and Monetary Powers of Congress
          Coinage, Weights, and Measures
          Punishment of Counterfeiting
          Borrowing Power versus Fiscal Power
Clause 7. Post Offices
      Postal Power
          "Establish''
          Power to Protect the Mails
          Power to Prevent Harmful Use of the Postal Facilities
          Exclusive Power as an Adjunct to Other Powers
          State Regulations Affecting the Mails
Clause 8. Copyrights and Patents
      Copyrights and Patents
          Scope of the Power
          Patentable Discoveries
          Procedure in Issuing Patents
          Nature and Scope of the Right Secured
          Power of Congress over Patent Rights
          State Power Affecting Payments &Copyrights
          Trade-Marks and Advertisements
Clause 9. Creation of Courts
Clause 10. Maritime Crimes
      Piracies, Felonies, and Offenses Against the Law of Nations
          Origin of the Clause
          Definition of Offenses
          Extraterritorial Reach of the Power
Clauses 11, 12, 13, and 14. War; Military Establishment
      The War Powers
          Source and Scope
              Three Theories
              An Inherent Power
              A Complexus of Granted Powers
          Declaration of War
      The Power to Raise and Maintain Armed Forces
          Purpose of Specific Grants
          Time Limit on Appropriations for the Army
          Conscription
          Care of the Armed Forces
          Trial and Punishment of Offenses: Servicemen, Civilian Employees, & Dependents
              Servicemen
              Civilians and Dependents
      War Legislation
          War Powers in Peacetime
          Delegation of Legislative Power in Wartime
      Constitutional Rights in Wartime
          Constitution & the Advance of the Flag
              Theater of Military Operations
              Enemy Country
              Enemy Property
              Prizes of War
          The Constitution at Home in Wartime
              Personal Liberty
              Enemy Aliens
              Eminent Domain
              Rent and Price Controls
Clauses 15 and 16. The Militia
      The Militia Clause
          Calling Out the Militia
          Regulation of the Militia
Clause 17. District of Columbia; U.S. Government Property
      Seat of the National Government
      Authority Over Places Purchased
          "Places''
          Duration of National Jurisdiction
          Reservation of Jurisdiction by States
Clause 18. Necessary and Proper Clause
      Coefficient Clause, or Elastic Clause
          Scope of Incidental Powers
          Operation of Coefficient Clause
          Definition of Punishment and Crimes
          Chartering of Banks
          Currency Regulations
          Power to Charter Corporations
          Courts and Judicial Proceedings
          Special Acts Concerning Claims
          Maritime Law

Section 9. Powers Denied to Congress

Clause 1. Importation of Slaves
      General Purpose of Section 9
Clause 2. Habeas Corpus Suspension
Clause 3. Bills of Attainder and Ex Post Facto Laws
      Bills of Attainder
      Ex Post Facto Laws
          Definition
          What Constitutes Punishment
          Change in Place or Mode of Trial
Clause 4. Taxes
      Direct Taxes
          The Hylton Case
          From the Hylton to the Pollock Case
          Restriction of the Pollock Decision
          Miscellaneous
Clause 5. Duties on Exports from States
      Taxes on Exports
          Stamp Taxes
Clause 6. Preference to Ports
      The "No Preference'' Clause
Clause 7. Appropriations and Accounting of Public Money
      Appropriations
      Payment of Claims
Clause 8. Titles of Nobility; Presents

Section 10. Powers Denied to the States

Clause 1. Not to Make Treaties, Coin Money, Pass Ex Post Facto Laws, Impair                 Contracts
      Treaties, Alliances, or Confederations
      Bills of Credit
      Legal Tender
      Bills of Attainder
      Ex Post Facto Laws
          Scope of the Provision
          Denial of Future Privileges to Past Offenders
          Changes in Punishment
          Changes in Procedure
      Obligation of Contracts
          "Law'' Defined
          Status of Judicial Decisions
          "Obligation'' Defined           "Impair'' Defined
          Vested Rights Not Included
          Public Grants That Are Not ``Contracts''
          Tax Exemptions: When Not ``Contracts''
          "Contracts'' Include Public Contracts & Corporate Charters
          Corporate Charters: Different Ways of Regarding
          Reservation of Right to Alter or Repeal Corporate Charters
          Corporation Subject to the Law & Police Power
          Strict Construction of Charters, Tax Exemptions
          Strict Construction & the Police Power
          Doctrine of Inalienability as Applied to Eminent Domain, Taxing, &
          Police Powers
          Private Contracts
          Remedy a Part of the Private Obligation
          Private Contracts and the Police Power
          Evaluation of the Clause Today
Clause 2. Not to Levy Duties on Exports and Imports
      Duties on Exports and Imports
          Scope
          Privilege Taxes
          Property Taxes
          Inspection Laws
Clause 3. Not to Lay Tonnage Duties, Keep Troops, Make Compacts, or Engage in War
      Tonnage Duties
      Keeping Troops
      Interstate Compacts
          Background of Clause
          Subject Matter of Interstate Compacts
          Consent of Congress
          Grants of Franchise to Corporations by Two States
          Legal Effects of Interstate Compacts

SEPARATION OF POWERS & CHECKS AND BALANCES

NOTE:

NOTES:

[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 U.S. Supreme Court's evaluation of congressional initiatives. E.g., Metropolitan Washington Airports Authority 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 Federal Convention proceedings is detailed in G. Wood, The Creation of the American Republic, 1776-1787 (1969) .

The doctrine of separation of powers, as implemented in drafting the Constitution, was based on several principles generally held: the separation of government into three branches -- legislative, executive, and judicial; the conception that each branch performs unique and identifiable functions that are appropriate to each; and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously. To a great extent, the Constitution effectuated these principles, but critics objected to what they regarded as a curious intermixture of functions, to, for example, the veto power of the President over legislation and to the role of the Senate in the appointment of executive officers and judges and in the treaty-making process. It was to these objections that Madison turned in a powerful series of essays. [5]

NOTE:

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 counteract ambition. The interest of the man must be connected with the constitutional rights of the place." [8]

NOTES:

[7] Ibid., Nos. 47-49, 325-343.

[8] Ibid., No. 51, 349.

Institutional devices to achieve these principles pervade the U.S. 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.

Throughout much of our history, the "political branches'' have contended between themselves in application of the separation-of-powers doctrine. Many notable political disputes turned on questions involving the doctrine. Inasmuch as the doctrines of separation of powers and of checks and balances require both separation and intermixture, [9] the role of the Supreme Court in policing the maintenance of the two doctrines is problematic at best. And, indeed, it is only in the last two decades that cases involving the doctrines have regularly been decided by the Court. Previously, informed understandings of the principles have underlain judicial construction of particular clauses or guided formulation of constitutional common law. That is, the nondelegation doctrine was from the beginning suffused with a separation-of-powers premise, [10] and the effective demise of the doctrine as a judicially-enforceable construct reflects the Court's inability to give any meaningful content to it. [11] On the other hand, periodically, the Court has essayed a strong separation position on behalf of the President, sometimes with lack of success, [12] sometimes successfully.

NOTES:

[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).

Following a lengthy period of relative inattention to separation of powers issues, the Supreme 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]

NOTES:

[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 Company, 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]

NOTE:

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]

NOTES:

[20] CFTC v. Schor, 478 U.S. 833, 850-51, 856-57 (1986); Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568, 587, 589-93 (1985) . The Supreme 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 legislative, because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the legislative branch of the national government, and thus Congress had to comply with the bicameralism and presentment requirements of the Constitution. [21] Second, the Attorney General was performing an executive function in implementing the delegation from Congress, and the legislative veto was an impermissible interference in the execution of the laws. Congress could act only by legislating, by changing the terms of its delegation. [22] In Bowsher, the Court held that Congress could not vest even part of the execution of the laws in an officer, the Comptroller General, who was subject to removal by Congress because this would enable Congress to play a role in the execution of the laws. Congress could act only by passing other laws. [23]

[21] INS v. Chadha, 462 U.S. 919, 952 (1983).

[22] Ibid., 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 one, whether Congress had impermissibly undermined the role of another branch without appreciable expansion of its own power.

NOTES:

[25] CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568, 587 (1985)).

[26] Ibid., 851.

[27] Ibidd., 856.

While the Supreme Court, in applying one or the other analysis in separation of powers cases, had never indicated its standards for choosing one analysis over the other, beyond inferences that the formalist approach was proper when the Constitution fairly clearly committed a function or duty to a particular branch and the functional approach was proper when the constitutional text was indeterminate and a determination must be made on the basis of the likelihood of impairment of the essential powers of a branch, the overall results had been a strenuous protection of executive powers and a concomitant relaxed view of the possible incursions into the powers of the other branches. It was thus a surprise, then, when in the independent counsel case, the Court, again without stating why it chose that analysis, utilized the functional standard to sustain the creation of the independent counsel. [28] The independent-counsel statute, the Court emphasized, was not an attempt by Congress to increase its own power at the expense of the executive nor did it constitute a judicial usurpation of executive power. Moreover, the Court stated, the law did not ``impermissibly undermine'' the powers of the Executive Branch nor did it ``disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.'' [29] Acknowledging that the statute undeniably reduced executive control over what it had previously identified as a core executive function, the execution of the laws through criminal prosecution, through its appointment provisions and its assurance of independence by limitation of removal to a ``good cause'' standard, the Court nonetheless noticed the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the counsel. This balancing, the Court thought, left the President with sufficient control to ensure that he is able to perform his constitutionally assigned functions.

NOTES:

[29] Ibid., 695 (quoting, respectively, Schor, supra, 478 U.S., 856, and Nixon v. Administrator of General Services, supra, 433 U.S., 443).

A notably more pragmatic, functional analysis suffused the opinion of the Supreme 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 nranch.'' [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. Ibid., 384, 397, 407-08. As in Morrison, Justice Scalia was the lone dissenter, arguing for a fairly rigorous application of separation-of-powers principles. Ibid., 413, 422-427.

[31] Ibid., 382.

Although it is possible, even likely, that Morrison and Mistretta represent a decision by the Supreme Court to adopt for all separation-of-powers cases the functional analysis, the history of adjudication since 1976 and the shift of approach between Myers and Humphrey's Executor suggest caution. Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming before it can be decided that the Court has finally settled on the functional approach.

BICAMERALISM

From the beginning in the Federal Constitutional 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 Constitutional Convention, resolved the dispute about the national legislature by providing for a House of Representatives apportioned on the basis of population and a Senate in which the states were equally represented. The first function served, thusly, was federalism. [32] Coextensively important, however, was the separation-of-powers principle served. The legislative power, the Framers both knew and feared, was predominant in a society dependent upon the suffrage of the people, and it was important to have a precaution against the triumph of transient majorities. Hence, the Constitution's requirement that, before lawmaking could be carried out, bills must be deliberated in two houses, their members beholden to different constituencies, was in pursuit of this observation from experience. [33]

NOTES:

[33] Madison, Ibid., No. 51, 347-353 . The assurance of the safeguard is built into the presentment clause. Article I, Section 7, Clause 2; and see ibid., clause 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 U.S. Senators, so that the differences between the two chambers of Congress are today less pronounced.

ENUMERATED, IMPLIED, RESULTING, AND INHERENT POWERS

NOTE:

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 Supreme 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]

NOTES:

[36] 206 U.S. 46, 82 (1907).

[37] 4 Wheat. (17 U.S.), 407.

[38] Ibid., 411.

[39] Ibid., 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 Company 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] J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1256. See also ibid., 1286 and 1330.

[41] 1 Pet. (26 U.S.) 511 (1828).

[42] Ibid., 542.

[43] Ibid., 543.

Subsequently, powers have been repeatedly ascribed to the national government by the Supreme Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined'' by the Constitution; [44] the power to impart to the paper currency of the government the quality of legal tender in the payment 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 Corporation, [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.

NOTES:

[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.

DELEGATION OF LEGISLATIVE POWER

"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 have so settled a place in constitutional jurisprudence that notice mu be given at some length. [52]

NOTES:

[52] For particularly useful discussions of delegations, see 1 K. Davis, Administrative Law Treatise (St. Paul: 2d ed., 1978), Chapter 3; L. Jaffe, Judicial Control of Administrative Action (Boston: 1965), Chapter 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 branch?

NOTE:

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]

NOTE:

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., & Company 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.''

NOTES:

[56] 276 U.S. 394, 405-406 (1928).

But whatever the source or combination of sources of the doctrine, decisions of the Supreme 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]

NOTE:

"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 coordinate parts of one government and that each, in the field of its duties, may not invoke the action of the two other branches, in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination.'' [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]

NOTES:

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

[60] Ibid., 10 Wheat. (23 U.S.), 42.

Two theories suggested themselves to the early Supreme 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.

NOTE:

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]

NOTE:

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.

NOTES:

[64] Act of May 8, 1792, Section 2, 1 Statutes 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 Supreme Court sustained the conviction of one selling his goods without the markings against his objection that he was prosecuted not for violation of law but for violation of a regulation. [66] "The criminal offence,'' said Chief Justice Fuller, "is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail.'' [67] Kollock was not the first such case, [68] but it was to be followed by a multitude of delegations and the sustaining of them. Soon thereafter, the Court, on the same theory, upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States. [69]

NOTES:

[67] Ibid., 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 Company, 224 U.S. 194 (1912) (prescribing methods of accounting for carriers in interstate commerce).

Contingent Legislation. -- An entirely different problem arises when, instead of directing another branch of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of "filling up the details'' of a statute, authority for it must be sought 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 Supreme 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]

NOTES:

[71] Ibid., 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, 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]

NOTES:

[73] Ibid., 691.

[74] Ibid., 692, 693.

[75] J. W. Hampton, Jr. & Compasny v. United States, 276 U.S. 394 (1928).

"[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 Supreme 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]

NOTES:

[77] J. W. Hampton, Jr. & Company v. United States, 276 U.S. 39 (1928).

[78] Ibid., 406.

[79] Ibid., 409. The "intelligible principle'' test of Hampton is the same as the "legislative standards'' test of A. L. A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 530 (1935), and Panama Refining Company 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 Supreme 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 branches 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 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]

NOTES:

[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 Railway Company v. Minnesota, 134 U.S. 418 (1890).

[82] J. W. Hampton, Jr. & Company v. United States, 276 U.S. 394, 409 (1928).

[83] State v. Chicago, Milwaukee & St. Paul Railway Company v. Minnesota 288, 301, 37 N.W. 782, 788 (1888), reviewed, on other grounds, 134 U.S. 418 (1890).

[84] ICC v. Louisville & Nashville R.R., 227 U.S. 88 (1913); New York v. United States, 331 U.S. 284, 340-350 (1947), and cases cited. See also New York v. United States, 342 U.S. 882 (1951); American Trucking Associations. v. Atchison, Topeka & Santa Fe Railway, 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 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]

NOTES:

[86] Federal Radio Commission v. Nelson Brotherss Bond & Mortgage Company, 289 U.S. 266 (1933).

[87] National Broadcasting Company v. United States, 319 U.S. 190 (1943).

[88] United States v. Southwestern Cable Company, 392 U.S. 157 (1968) (regulation of cable television under the 1934 Communications Act). See also Red Lion Broadcasting Company 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 Supreme Court has upheld the delegation to the Federal Power Commission of authority to determine "just and reasonable'' rates. [90] Agencies have been held properly to have received power to determine whether rates and charges were too high or excessive. [91] Regulation of corporate conduct has been extended to close supervision of activity. [92]

NOTES:

[91] Yakus v. United States, 321 U.S. 414 (1944) (wartime delegation to administrator to fix commodity prices that would be fair and equitable); Lichter v. United States, 334 U.S. 742 (1948) (wartime delegation to determine excessive profits by defense industries). See also Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F.Supp. 737 (D.D.C. 1971) (three-judge court) (upholding imposition of nationwide price and wage controls by President upon general delegation).

[92] American Light & Power Company 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 Supreme Court approved congressional delegations to the United States Sentencing Commission, an independent agency in the judicial branch, to develop and promulgate guidelines binding federal judges and limiting 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]

NOTES:

[94] Ibid., 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 change, new officials may have been conferred enough discretion so that they can change agency policies, often to a considerable degree, so that both previous and present agency policies may be consistent with congressional delegations. [96]

NOTES:

[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.'' Ibid., 865). See also Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company, 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).

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 Supreme 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 the authority, 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 procedure and of evidence, it directed that such rules supersede previously enacted statutes with which they conflicted. [103]

Notes:

[98] Skinner v. Mid-America Pipeline Company, 490 U.S. 212 (1989). In National Cable Television Association v. United States, 415 U.S. 336, 342 (1974), and FPC v. New England Power Company, 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. & Company 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 Associationn. 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. & Company 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 Congress, 2d session (1988), 27-29; 134 Congressional Reccod 23573-23584 (1988); Ibid., 31051-31052 (Senator Heflin); Ibid., 31872 (Representative 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 Supreme Court justices. [105] Nonetheless, the Court's most recent decisions evidence no doubt of the constitutional propriety of very broad delegations, [106] and the practice will doubtlessly remain settled.

NOTES:

[105] American Textile Manufacturers Institute v. Donovan, 452 U.S. 490, 543 (1981) (Chief Justice Burger dissenting); Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 671 (1980) (then-Justice Rehnquist concurring). See also United States v. Midwest Video Corporation, 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 Department, supra, 645-646 (plurality opinion); National Cable Television Association 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 Company, 490 U.S. 212, 220- 224 (1989); Touby v. United States, 500 U.S. 160, 164-168 (1991). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, supra, 415-416, conceded both the inevitability of delegations and the inability of the courts to police them.

Standards. -- Critical to the Supreme 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 Company 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 contrary directives. [108] While the grant of power in Panama Refining was narrow, the grant, in A.L.A. Schechter Poultry Corporation 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]

NOTES:

[108] It is not without note that the Supreme 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 U.S. 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 Supreme 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]

NOTES:

[113] Ibid., 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).

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]

NOTES:

[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] Ibid., 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.

NOTE:

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 attention to delegation as a constitutional issue in these circumstances. An exception is Arizona v. California, [124] in which a divided Court sustained the delegation of total discretion to the Secretary of the Interior to apportion water among the southwestern States in times of shortage. The statute prescribed no formula or standards, and the majority agreed that he was entirely free ``to choose among the recognized methods of apportionment or to devise reasonable methods of his own,'' [125] the Secretary being required to reach ``an informed judgment in harmony with the Act, the best interests of the Basin States, and the welfare of the Nation.'' [126] Three dissenters noted they had ``the gravest constitutional doubts'' about the delegation. [127]

NOTES:

[124] 373 U. S. 546 (1963).

[125] Ibid., 593.

[126] Ibid., 594.

[127] Ibid., 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]

NOTES:

[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 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]

NOTES:

[133] Ibid., 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.

NOTES:

[137] Ibid., 319-322. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280, 291-292 (1981). This view also informs the Court's analysis in Dames & Moore v. Regan, 453 U.S . 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926).

Delegations to the States. -- From the beginning, Congress enacted hundreds of statutes that contained provisions authorizing 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]

NOTES:

[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]

NOTES:

[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 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]

NOTES:

[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 cases. [151]

NOTE:

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 standard practice, indeed, of the majority has been to interpret narrowly the delegation so as to avoid constitutional problems.\154\

NOTES:

[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 action. [155]

NOTE:

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]

NOTES:

[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).

NOTES:

[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 exercised.'' [163]

NOTE:

And in a 1957 opinion generally hostile to the exercise of the investigatory power in the post-War years, Chief Justice Warren did not question the basic power. ``The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.'' [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 farreaching as the potential power to enact and appropriate under the Constitution.'' [165]

NOTES:

[165] Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503-507 (1975).

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]

NOTES:

[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.

For many years, the investigating function of Congress was limited to inquiries into the administration of the executive branch or of instrumentalities of the U.S. national 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 a century later, in McGrain v. Daugherty, [175] it ratified in sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration. [176]

NOTES:

[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, 3 (1837).

[172] Cong. Globe, 36th Congress, 1st sess., 1100-1109 (1860).

[173] 103 U.S. 168 (1881).

[174] The Court held that inasmuch as the entire proceedings arising out of the bankruptcy were pending in court, as the authorizing resolution contained no suggestion of contemplated legislation, as in fact no valid legislation could be enacted on the subject, and as the only relief which the United States could seek was judicial relief in the bankruptcy proceeding, the House had exceeded its powers in authorizing the inquiry. But see Hutcheson v. United States, 369 U.S. 599 (1962).

[175] 273 U.S. 135, 177, 178 (1927).

[176] We consider elsewhere the topic of executive privilege, the claimed right of the President and at least some of his executive branch officers to withhold from Congress information desired by it or by one of its committees. Although the issue has been one of contention between the two branches of Government since Washington's refusal in 1796 to submit certain correspondence to the House of Representatives relating to treaty negotiations, it has only recently become a judicial issue.

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.

NOTES:

[178] 279 U.S. 597 (1929).

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]

NOTES:

[180] Kilbourn v. Thompson, 103 U.S. 168 (1881).

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]

NOTES:

[182] 273 U.S. 135, 178 (1927).

[183] 279 U.S. 263 (1929).

[184] Ibid., 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 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.

NOTES:

[186] The first case so holding is ICC v. Brimson, 154 U.S. 447 (1894), which asserts that inasmuch as Congress could itself have made the inquiry to appraise its regulatory activities it could delegate the power of inquiry to the agency to which it had delegated the regulatory function.

[187] Watkins v. United States, 354 U.S. 178, 195 (1957).

[188] See Dennis v. United States, 341 U.S. 494 (1951); Barenblatt v. United States, 360 U.S. 109, 127 (1959); American Communications Assn. v. Douds, 339 U.S. 382 (1950).

[189] Barenblatt v. United States, 360 U.S. 109, 129-132 (1959); Deutch v. United States, 367 U.S. 456 (1961); cf. Sweezy v. New Hampshire, 354 U.S. 234 (1957) (state inquiry).

[190] Watkins v. United States, 354 U.S. 178 (1957); Flaxer v. United States, 358 U.S. 147 (1958); Wilkinson v. United States, 365 U.S. 399 (1961).

[191] McPhaul v. United States, 364 U.S. 372 (1960).

[192] Hutcheson v. United States, 369 U.S. 599 (1962).

[193] Shelton v. United States, 404 F. 2d 1292 (D.C.Cir. 1968), cert. den., 393 U.S. 1024 (1969).

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 attempted to assert limitations in practice based upon this concept, the majority of Justices has adhered to the traditional precept that courts will not inquire into legislators' motives but will look [195] only to the question of power. [196] ``So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.'' [197]

NOTES:

[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 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]

NOTES:

[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] Ibid., 117-118.

[204] Ibid., 122-123. But note that in Stamler v. Willis, 415 F. 2d 1365 (7th Cir., 1969), cert. den., 399 U.S. 929 (1970), the court ordered to trial a civil suit contesting the constitutionality of the Rule establishing the Committee on allegations of overbreadth and overbroad application, holding that Barenblatt did not foreclose the contention.

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]

NOTES:

[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.

NOTE:

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 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]

NOTES:

[210] Ibid., 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 propaganda.'' [212]

NOTES:

[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 majority of the Court that its subsequent investigations were authorized and that the questions asked of recalcitrant witnesses were pertinent to the inquiries. [213]

NOTE:

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 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]

NOTES:

[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. Ibid., 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]

NOTES:

[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]

NOTE:

Protection of Witnesses; Constitutional Guarantees. -- "[T]he Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights.'' [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.

NOTE:

The most extensive amount of litigation in this area has involved the privilege against self-incrimination guaranteed against governmental abridgment by the Fifth Amendment. Observance of the privilege by congressional committees has been so uniform that no Court holding has ever held that it must be observed, though the dicta is plentiful. [222] Thus, the cases have explored not the issue of the right to rely on the privilege but rather the manner and extent of its application.

NOTE:

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]

NOTES:

[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]

NOTE:

In Hutcheson v. United States, [227] the Court rejected a challenge to a Senate Committee inquiry into union corruption on the part of a witness who was under indictment in state court on charges relating to the same matters about which the Committee sought to interrogate him. The witness did not plead his privilege against self- incrimination but contended that by questioning him about matters which would aid the state prosecutor the Committee 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]

NOTES:

[228] Justice Harlan wrote the opinion of the Court which Justices Clark and Stewart joined. Justice Brennan concurred solely because the witness had not claimed the privilege against self- incrimination but he would have voted to reverse the conviction had there been a claim. Chief Justice Warren and Justice Douglas dissented on due process grounds. Justices Black, Frankfurter, and White did not participate. At the time of the decision, the self-incrimination clause did not restrain the States through the Fourteenth Amendment so that it was no violation of the clause for either the Federal Government or the States to compel testimony which would incriminate the witness in the other jurisdiction. Cf. United States v. Murdock, 284 U.S. 141 (1931); Knapp v. Schweitzer, 357 U.S. 371 (1958). The Court has since reversed itself, Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Commission, 378 U.S. 52 (1964), thus leaving the vitality of Hutcheson doubtful.

[229] The matter is discussed fully in the section on the First Amendment but a good statement of the balancing rule may be found in Younger v. Harris, 401 U.S. 37, 51 (1971), by Justice Black, supposedly an absolutist on the subject: ``Where a statute does not directly abridge free speech, but--while regulating a subject within the State's power--tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so.''

[230] Barenblatt v. United States, 360 U.S. 109, 126 (1959).

Thus, the Court has declined to rule that under the circumstances of the cases investigating committees are precluded from making inquiries simply because the subject area was education [231] or because the witnesses at the time they were called were engaged in protected activities such as petitioning Congress 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]

NOTES:

[232] Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 365 U.S. 431 (1961).

[233] United States v. Rumely, 345 U.S. 41 (1953).

[234] Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). See also DeGregory v. Attorney General, 383 U.S. 825 (1966).

Dicta in the Court's opinions acknowledge that the Fourth Amendment guarantees against unreasonable searches and seizures are applicable to congressional committees. [235] The issue would most often arise in the context of subpoenas, inasmuch as that procedure is the usual way by which committees obtain documentary material and inasmuch as Fourth Amendment standards apply as well to subpoenas as to search warrants. [236] But there are no cases in which a holding turns on this issue. [237]

NOTES:

[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.

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 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.

NOTES:

[239] 6 Wheat (19 U.S.) 204 (1821).

[240] The contempt consisted of an alleged attempt to bribe a Member of the House for his assistance in passing a claims bill. The case was a civil suit brought by Anderson against the Sergeant at Arms of the House for assault and battery and false imprisonment. Cf. Kilbourn v. Thompson, 103 U.S. 168 (1881). The power of a legislative body to punish for contempt one who disrupts legislative business was reaffirmed in Groppi v. Leslie, 404 U.S. 496 (1972), but a unanimous Court there held that due process required a legislative body to give a contemnor notice and an opportunity to be heard prior to conviction and sentencing. Although this case dealt with a state legislature, there is no question it would apply to Congress as well.

[241] 243 U.S. 521 (1917).

The cases emphasize that the power to punish for contempt rests upon the right of self-preservation. That is, in the words of Chief Justice White, "the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed'' necessitates the contempt power. [242] Thus, in Jurney v. MacCracken, [243] the Court turned aside an argument that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena. The punishment would not be efficacious in obtaining the papers in this particular case, but the power to punish for a past contempt is an appropriate means of vindicating ``the established and essential privilege of requiring the production of evidence.'' [244]

NOTES:

[243] 294 U.S. 125 (1935).

[244] Ibid., 150.

Under the rule laid down by Anderson v. Dunn, [245] imprisonment by one of the Houses of Congress could not extend beyond the adjournment of the body which ordered it. Because of this limitation and because contempt trials before the bar of the House charging were time consuming, in 1857 Congress enacted a statute providing for criminal process in the federal courts with prescribed penalties for contempt of Congress. [246]

NOTES:

[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]

NOTE:

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]

NOTES:

[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.

NOTE:

Article I, 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.

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]

NOTES:

[252] Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and districting); Hadley v. Junior College District, 397 U.S. 50 (1970) (local governmental units).

[253] 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964).

[254] 376 U.S., 7.

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 question'' doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr. [259]

NOTES:

[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]

NOTES:

[261] Ibid., 7-18.

[262] Ibid., 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 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]

NOTES:

[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] Ibid., 531.

[267] Ibid., 533. People vote as individuals, Justice Brennan said for the Court, and it is the equality of individual voters that is protected. [268] Ibid. Political "practicality'' may not interfere with a rule of "practicable'' equality.

[269] Ibid., 533-534. The argument is not ``legally acceptable.''

[270] Ibid., 534-535. Justice Brennan questioned whether anything less than a total population basis was permissible but noted that the legislature in any event had made no consistent application of the rationale.

[271] Ibid., 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made.

[272] Ibid., 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]

NOTES:

[274] Karcher v. Daggett, 462 U.S. 725 (1983). Illustrating the point about computer-generated plans containing absolute population equality is Hastert v. State Board of Elections, 777 F.Supp. 634 (N.D.Ill. 1991) (three-judge court), in which the court adopted a congressional-districting plan in which 18 of the 20 districts had 571,530 people each and each of the other two had 571,531 people.

Attacks on partisan gerrymandering have proceeded under equal-protection analysis, and, while the Court has held justiciable claims based on claims of denial of effective representation, the standards are so high neither voters nor minority parties have yet benefitted from the development. [275]

NOTE:

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 Article I, Sec. 2, cl. 1, and are more fully dealt with subsequently in the treatment of Sec. 5 of the Fourteenth Amendment.

NOTES:

[277] Minor v. Happersett, 21 Wall. (88 U.S.) 162, 171 (1875); Breedlove v. Suttles, 302 U.S. 277, 283 (1937). See 2 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 576-585.

[278] The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments limited the States in the setting of qualifications in terms of race, sex, payment of poll taxes, and age.

[279] The Supreme Court's interpretation of the equal protection clause has excluded certain qualifications. E.g., Carrington v. Rash, 380 U.S. 89 (1965); Kramer v. Union Free School District, 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). The excluded qualifications were in regard to all elections.

[280] The power has been held to exist under Sec. 5 of the Fourteenth Amendment. Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970); City of Rome v. United States, 446 U.S. 156 (1980).

[281] Sec. 4(e), 79 Stat. 437, 439, 42 U.S.C. Sec. 1973b(e), as amended.

[282] Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).

[283] Titles 2 and 3, 84 Stat. 314, 42 U.S.C. Sec. 1973bb.

[284] Oregon v. Mitchell, 400 U.S. 112, 119-131, 135-144, 239-281 (1970).

[285] Oregon v. Mitchell, 400 U.S. 112, 134, 147-150, 236-239, 285-292 (1970).

[286] Oregon v. Mitchell, 400 U.S. 112, 119-131, 152-213, 293-296 (1970).

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]

NOTES:

[288] United States v. Mosley, 238 U.S. 383 (1915).

[289] United States v. Classic, 313 U.S. 299, 315 (1941).

Article I, Section 2, 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.

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]

NOTES:

[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.

Congressional Additions. -- Writing in The Federalist with reference to the election of Members of Congress, Hamilton firmly stated that ``[t]he qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature.' [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]

NOTES:

[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. Ibid., 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. Ibid., 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] Ibid., 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 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]

NOTES:

[301] Powell v. McCormack, 395 U.S. 486, 518-547 (1969).

[302] Ibid., 522-531.

[303] Ibid., 532-539.

[304] Ibid., 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 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]

NOTES:

[306] Ibid., 547-548.

[307] The protection of the voters' interest in being represented by the person of their choice is thus analogized to their constitutionally secured right to cast a ballot and have it counted in general elections, Ex parte Yarbrough, 110 U.S. 651 (1884), and in primary elections, United States v. Classic, 313 U.S. 299 (1941), to cast a ballot undiluted in strength because of unequally populated districts, Wesberry v. Sanders. 376 U.S. 1 (1964), and to cast a vote for candidates of their choice unfettered by onerous restrictions on candidate qualification for the ballot. Williams v. Rhodes, 393 U.S. 23 (1968).

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.

NOTES:

[309] Ibid., 129-131, 132, 135.

[310] Ibid., 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 who suffered particular state disqualifications on eligibility, such as running for Congress while holding particular state offices. [312]

NOTES:

[312] Ibid., 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).

Article I, Section 2, Clause 3. Representatives {and direct Taxes} shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, {which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons}. [313] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut, five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

NOTE:

While Sec. 2 expressly provides for an enumeration of persons, Congress has repeatedly directed an enumeration not only of the 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]

NOTES:

[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 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]

NOTES:

[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).

Article I, Section 2, Clause 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Article I, Section 2, Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, 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]

NOTE:

Article I, Section 3, 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]

NOTES:

[322] See Seventeenth Amendment.

Article I, Section 3, 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.

Article I, Section 3, 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.

Article I, Section 3, 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.

Article I, Section 3, 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.

Article I, Section 3, 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, 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.

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]

NOTES:

[324] The 1872 Act, 17 Stat. 28, provided that districts should contain ``as nearly as practicable'' equal numbers of inhabitants, a provision thereafter retained. In 1901, 31 Stat. 733, a requirement that districts be composed of ``compact territory'' was added. These provisions were repeated in the next Act, 37 Stat. 13 (1911), there was no apportionment following the 1920 Census, and the permanent 1929 Act omitted the requirements. 46 Stat. 13. Cf. Wood v. Broom, 287 U.S. 1 (1932).

[325] The first challenge was made in 1843. The committee appointed to inquire into the matter divided, the majority resolving that Congress had no power to bind the States in regard to their manner of districting, the minority contending to the contrary. H. Rept. No. 60, 28th Congress, 1st sess. (1843). The basis of the majority view was that while Article I, Sec. 4 might give Congress the power to lay off the districts itself, the clause did not authorize Congress to tell the state legislatures how to do it if the legislatures were left the task of drawing the lines. L. Schmeckebier, Congressional Apportionment(Washington: 1941), 135-138. This argument would not appear to be maintainable in light of the language inEx parte Siebold, 100 U.S. 371, 383-386 (1880).

[326] 46 Stat. 13 (1929). In 1967, Congress restored the single- member district requirement. 81 Stat. 581, 2 U.S.C. Sec. 2c.

[327]1 4 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 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]

NOTES:

[329] The Enforcement Act of May 31, 1870, 16 Stat. 140; The Force Act of February 28, 1871, 16 Stat. 433; The Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The text of these and other laws and the history of the enactments and subsequent developments are set out in R. Carr, Federal Protection of Civil Rights: Quest for a Sword(Ithaca: 1947).

[330] The constitutionality of sections pertaining to federal elections was sustained inEx parte Siebold, 100 U.S. 371 (1880), andEx parte Yarbrough, 110 U.S. 651 (1884). The legislation pertaining to all elections was struck down as going beyond Congress' power to enforce the Fifteenth Amendment.United States v. Reese, 92 U.S. 214 (1876).

[331] 28 Stat. 144 (1894).

[332] P.L. 85-315, Part IV, Sec. 131, 71 Stat. 634, 637 (1957); P.L. 86-449, Title III, Sec. 301, Title VI, 601, 74 Stat. 86, 88, 90 (1960); P.L. 88-352, Title I, Sec. 101, 78 Stat. 241 (1964); P.L. 89- 110, 79 Stat. 437 (1965); P.L. 90-284, Title I, Sec. 101, 82 Stat. 73 (1968); P.L. 91-285, 84 Stat. 314 (1970);P.L. 94-73, 89 Stat. 400 (1975); P.L. 97-205, 96 Stat. 131 (1982). Most of these statutes are codified in 42 U.S.C. Sec. 1971et seq.The penal statutes are in 18 U.S.C. Sec. Sec. 241-245.

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 tures in federal elections [334] and other acts have similarly provided other regulations. [335]

NOTES:

[334] Act of February 28, 1925, 43 Stat. 1070, 2 U.S.C. Sec. Sec. 241-256. Comprehensive regulation is now provided by the Federal Election Campaign Act of 1971, 86 Stat. 3, and the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, as amended, 90 Stat. 475, found in titles 2, 5, 18, and 26 of the U.S. Code. SeeBuckley v. Valeo, 424 U.S. 1 (1976).

[335] E.g., the Hatch Act, relating principally to federal employees and state and local governmental employees engaged in programs at least partially financed with federal funds, 5 U.S.C. Sec. Sec. 7324- 7327.

As we have noted above, although Sec. 2, cl. 1, of this Article vests in the States the responsibility, now limited, to establish voter qualifications for congressional elections, the Court has held that the right to vote for Members of Congress is derived from the Federal Constitution, [336] and that Congress therefore may legislate under this section of the Article to protect the integrity of this right. Congress may protect the right of suffrage against both official and private abridgment. [337] Where a primary election is an integral part of the procedure of choice, the right to vote in that primary election is subject to congressional protection. [338] The right embraces, of course, the opportunity to cast a ballot and to have it counted honestly. [339] Freedom from personal violence and intimidation may be secured. [340] The integrity of the process may be safeguarded against a failure to count ballots lawfully cast [341] or the dilution of their value by the stuffing of the ballot box with fraudulent ballots. [342] But the bribery of voters, although within reach of congressional power under other clauses of the Constitution, has been held not to be an interference with the rights guaranteed by this section to other qualified voters. [343]

NOTES:

[337] Ibid., 315;Buckley v. Valeo, 424 U. S. 1, 13 n. 16 (1976).

[338] United States v. Classic, 313 U.S. 299, 315-321 (1941). The authority ofNewberry v. United States, 256 U.S. 232 (1921), to the contrary has been vitiated.Cf. United States v. Wurzbach, 280 U.S. 396 (1930).

[339] United States v. Mosley, 238 U.S. 383 (1915);United States v. Saylor, 322 U.S. 385, 387 (1944).

[340] Ex parte Yarbrough, 110 U.S. 651 (1884).

[341] United States v. Mosley, 238 U.S. 383 (1915).

[342] United States v. Saylor, 322 U.S. 385 (1944).

[343] United States v. Bathgate, 246 U.S. 220 (1918);United States v. Gradwell, 243 U.S. 476 (1917).

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 neessary-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. [346A]

NOTES:

[345] Ibid.

[346A] But in Oregon v. Mitchell, 400 U.S. 112 (1970), Justice Black grounded his vote to uphold the age reduction in federal elections and the presidential voting residency provision sections of the Voting Rights Act Amendments of 1970 on this clause. Id., 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.

Article I, Section 4, 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}. [246B]

NOTE:

Article I, 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.

Article I, Section 5, 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.

Article I, Section 5, 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.

Article I, Section 5, Clause 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

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]

NOTES:

[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] Ibid., 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 in United 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 determining the presence of such majority "it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact.'' [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]

NOTES:

[353] 144 U.S. 1 (1892).

[354] Ibid., 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. -- 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 until a point of no quorum is raised'' and that the Court, was in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts ``where such an issue is tendered.'' [361]

NOTES:

[358] 286 U.S. 6 (1932).

[359] 338 U.S. 84 (1949).

[360] Ibid., 87-90.

[361] Ibid., 92-95.

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]

NOTES:

[363] In re Chapman, 166 U.S. 661 (1897).

[364] Ibid., 669-670.See2 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), Sec. 836.

In Powell v. McCormack, [365] a suit challenging theexclusionof a Member-elect from the House of Representatives, it was argued that inasmuch as the vote to exclude was actually in excess of two-thirds of the Members it should be treated simply as anexpulsion.The Court rejected the argument, noting that the House precedents were to the effect that it had no power to expel for misconduct occurring prior to the Congress in which the expulsion is proposed, as was the case of Mr. Powell's alleged misconduct, but basing its rejection on its inability to conclude that if the Members of the House had been voting to expel they would still have cast an affirmative vote in excess of two- thirds. [366]

NOTES:

[366] Ibid., 506-512.

Duty To Keep a Journal. -- The object of the clause requiring the keeping of a Journal is "to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.'' [367] When the Journal of either House is put in evidence for the purpose of determining whether the yeas and nays were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final. [368] But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session receives the approval of the President and is deposited in the Department of State, its authentication as a bill that has passed Congress is complete and unimpeachable, and it is not competent to show from the Journals of either House that an act so authenticated, approved, and deposited, in fact omitted one section actually passed by both Houses of Congress. {369]

NOTES:

[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, 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 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.

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.

NOTE:

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 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]

NOTES:

[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).

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]

NOTES:

[377] Ibid., 83.

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

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

Members. -- This clause represents "the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.'' [380] So Justice Harlan explained the significance of the speech-and-debate clause, the ancestry of which traces back to a clause in the English Bill of Rights of 1689 [381] and the history of which traces back almost to the beginning of the development of Parliament as an independent force. [382] "In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders.' [383] "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.' [\384]

NOTES:

[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.

NOTES:

[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.

In Kilbourn 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 in Powell v. McCormack, [389] in which the plaintiff was not allowed to maintain an action for declaratory judgment against certain Members of the House of Representatives to challenge his exclusion by a vote of the entire House. Because the power of inquiry is so vital to performance of the legislative function, the Court held that the clause precluded suit against the Chairman and Members of a Senate subcommittee and staff personnel, to enjoin enforcement of a subpoena directed to a third party, a bank, to obtain the financial records of the suing organization. The investigation was a proper exercise of Congress' power of inquiry, the subpoena was a legitimate part of the inquiry, and the clause therefore was an absolute bar to judicial review of the subcommittee's actions prior to the possible institution of contempt actions in the courts. [390] And in Dombrowski 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.

NOTES:

[389] 395 U.S. 486 (1969). The Court found sufficient the presence of other defendants to enable it to review Powell's exclusion but reserved the question whether in the absence of someone the clause would still preclude suit. Id., 506 n. 26. See alsoKilbourn v. Thompson, 103 U.S. 168, 204 (1881).

[390] Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975).

[391] 387 U.S. 82 (1967). But see the reinterpretation of this case inGravel v. United States, 408 U.S. 606, 619-620 (1972).And see McSurely v. McClellan, 553 F. 2d 1277 (D.C.Cir. 1976)(en banc), cert. dismd. as improvidently granted, sub nom. McAdams v. McSurely, 438 U.S. 189 (1978).

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, 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]

NOTES:

[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]

NOTES:

[395] Ibid., 126, quotingGravel v. United States, 408 U.S. 606, 625 (1972).

[396] Hutchinson v. Proxmire, 443 U.S. 111, 130, 132-133 (1979). The Court distinguished between the more important ``informing'' function of Congress, i.e., its efforts to inform itself in order to exercise its legislative powers, and the less important ``informing'' function of acquainting the public about its activities. The latter function the Court did not find an integral part of the legislative process. See alsoDoe v. McMillan, 412 U.S. 306, 314-317 (1973). But compare id., 325 (concurring). For consideration of the ``informing'' function in its different guises in the context of legislative investigations, seeWatkins v. United States, 354 U.S. 178, 200 (1957);United States v. Rumely, 345 U.S. 41, 43 (1953);Russell v. United States, 369 U.S. 749, 777-778 (1962) (Justice Douglas dissenting).

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 of Representatives. The speech was charged as part of the conspiracy and extensive evidence concerning it was introduced at a trial. It was this examination into the context of the speech--its authorship, motivation, and content--which the Court found foreclosed by the speech-or-debate clause. [398]

NOTES:

[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. Ibid., 529, 540.

However, in United States v. Brewster, [399] while continuing to assert that the clause "must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,'' [400] the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be "influenced in his performance of official acts in respect to his action, vote, and decision'' on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ``Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as inJohnson, for use of a Congressman's influence with the Executive Branch.'' [401] In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution. [402]

NOTES:

[400] Ibid., 516.

[401] Ibid., 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.

Applying in the criminal context the distinction developed in the civil cases between protected ``legislative activity'' and unprotected conduct prior to or subsequent to engaging in ``legislative activity,'' the Court in Gravel v. United States, [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]

NOTES:

[404] Ibid., 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 in Powell 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, in Gravel 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 Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latters' alter ego; and that if they are not so recognized, the central role of the Speech or Debate clause . . . will inevitably be diminished and frustrated.'' [410] Therefore, the Court held "that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.'' [411]

NOTES:

[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] Ibid., 616-617.

[411] Ibid., 618.

The Gravelholding, however, does not so much extend congressional immunity to employees as it narrows the actual immunity available to both aides and Members in some important respects. Thus, the Court says, the legislators in Kilbourn were immune because adoption of the resolution was clearly a legislative act but the execution of the resolution -- the arrest and detention -- was not a legislative act immune from liability, so that the House officer was in fact liable as would have been any Member who had executed it. [412] Dombrowski was interpreted as having held that no evidence implicated the Senator involved, whereas the committee counsel had been accused of "conspiring to violate the constitutional rights of private parties. Unlawful conduct of this kind the Speech or Debate Clause simply did not immunize.'' [413] And Powell was interpreted as simply holding that voting to exclude plaintiff, which was all the House defendants had done, was a legislative act immune from Member liability but not from judicial inquiry. "None of these three cases adopted the simple proposition that immunity was unavailable to House or committee employees because they were not Representatives; rather, immunity was unavailable because they engaged in illegal conduct which was not entitled to Speech or Debate Clause protection. . . . [N]o prior case has held that Members of Congress would be immune if they execute an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seize the property or invade the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances.'' [414]

NOTES:

[413] Id., 619-620.

[414] Ibid., 620-621.

"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.

NOTE:

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 similarly would not apply in a situation in which it was uncertain whether the increase would be approved. [419]

NOTES:

[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).

This second part of the second clause elicited little discussion at the Convention and was universally understood to be a safeguard against executive influence on Members of Congress and the prevention of the corruption of the separation of powers. [420] Congress has at various times confronted the issue in regard to seating or expelling persons who have or obtain office in another branch. Thus, it has determined that visitors to academies, regents, directors, and trustees of public institutions, and members of temporary commissions who receive no compensation as members are not officers within the constitutional inhibition. [421] Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress. [422]

NOTES:

[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]

NOTES:

[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, 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.

Article I, Section 7, Clause 2. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return in which Case it shall not be a Law.

Article I, Section 7, Clause 3. (Legislative Process) 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.

Insertion of this clause was another of the devices sanctioned by the Framers to preserve and enforce the separation of pow 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]

NOTES:

[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.

NOTES:

[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).

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 extends 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]

NOTES:

[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] Ibid., 504. See also Burgess v. Salmon, 97 U.S. 381, 383 (1878).

[438] Matthews v. Zane, 7 Wheat. (20 U.S.) 164, 211 (1822).

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

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]

NOTES:

[441] Ibid.

[442] Ibid.

In one major respect, however, the President's actual desires may be frustrated by the presentation to him of omnibus bills or of bills containing extraneous riders. During the 1980s, on several occasions, Congress lumped all the appropriations for the operation of the Government into one gargantuan bill. But the President must sign or veto the entire bill; doing the former may mean he has to accept provisions he would not sign standing alone, and doing the latter may have other adverse consequences. Numerous Presidents from Grant on have unsuccessfully sought by constitutional amendment a ``line-item veto'' by which individual items in an appropriations bill or a substantive bill could be extracted and vetoed. More recently, beginning in the FDR Administration, it has been debated whether Congress could by statute authorize a form of the line-item veto, but, again, nothing passed. [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]

NOTES:

[445] Ibid., 680.

[446] Ibid., 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 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 in The 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]

NOTES:

[448] Ibid., 589-590.

[449] Ibid., 589.

[450] Ibid., 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 in Kennedy v. Sampson, [451] an appellate court held that a return is not prevented by an intrasession adjournment of any length by one or both Houses of Congress, so long as the originating House arranged for receipt of veto messages. The court stressed that the absence of the evils deemed to bottom the Court's premises inThe Pocket Veto Case--long delay and public uncertainty--made possible the result.

[451] 511 F. 2d 430 (D.C.Cir. 1974). The Administration declined to appeal the case to the Supreme Court. The adjournment here was for five days. Subsequently, the President attempted to pocket veto two other bills, one during a 32 day recess and one during the period which Congress had adjournedsine diefrom the first to the second session of the 93d Congress. After renewed litigation, the Administration entered its consent to a judgment that both bills had become law, Kennedy v. Jones, Civil Action No. 74-194 (D.D.C., decree entered April 13, 1976), and it was announced that President Ford ``will use the return veto rather than the pocket veto during intra-session and intersession recesses and adjournments of the Congress'', provided that the House to which the bill must be returned has authorized an officer to receive vetoes during the period it is not in session. President Reagan repudiated this agreement and vetoed a bill during an intersession adjournment. Although the lower court applied Kennedy v. Sampson to strike down the exercise of the power, but the case was mooted prior to Supreme Court review. Barnes v. Kline, 759 F.2d 51 (D.C.Cir. 1985), vacated and remanded to dismiss sub nom. Burke v. Barnes, 479 U.S. 361 (1987).

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 imnity proclamation issued by the President in 1868 did not require reversal of a decree condemning property seized under the Confiscation Act of 1862. [454]

NOTES

[453] 20 Wall. (87 U.S.) 92 (1874).

[454] 12 Stat. 589 (1862).

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]

NOTES:

[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] The proliferation of ``congressional veto'' provisions in legislation over the years raised a series of interrelated constitutional questions. [460] Congress until relatively recently had applied the veto provisions to some action taken by the President or another executive officer--such as a reorganization of an agency, the lowering or raising of tariff rates, the disposal of federal property--then began expanding the device to give itself a negative over regulations issued by executive branch agencies, and proposals were made to give Congress a negative over all regulations issued by executive branch independent agencies. [461]

NOTES:

[459] See, e.g., Lend Lease Act of March 11, 1941, 55 Stat. 31; First War Powers Act of December 18, 1941, 55 Stat. 838; Emergency Price Control Act of January 30, 1942, 56 Stat. 23; Stabilization Act of October 2, 1942, 56 Stat. 765; War Labor Disputes Act of June 25, 1943, 57 Stat. 163, all providing that the powers granted to the President should come to an end upon adoption of concurrent resolutions to that effect.

[460] From 1932 to 1983, by one count, nearly 300 separate provisions giving Congress power to halt or overturn executive action had been passed in nearly 200 acts; substantially more than half of these had been enacted since 1970. A partial listing was included inThe Constitution, Jefferson's Manual and Rules of the House of Representatives, H. Doc. No. 96-398, 96th Congress, 2d Sess. (1981), 731-922. A more up-to-date listing, in light of the Supreme Court's ruling, is contained in id., H.Doc.No. 101-256, 101st Cong., 2d sess. (1991), 907-1054.Justice White's dissent in INS v. Chadha, 462 U.S. 919, 968-974, 1003-1013 (1983), describes and lists many kinds of such vetoes. The types of provisions varied widely. Many required congressional approval before an executive action took effect, but more commonly they provided for a negative upon executive action, by concurrent resolution of both Houses, by resolution of only one House, or even by a committee of one House.

[461] A bill providing for this failed to receive the two-thirds vote required to pass under suspension of the rules by only three votes in the 94th Congress. H.R. 12048, 94th Congress, 2d sess. See H. Rept. No. 94-1014, 94th Congress, 2d sess. (1976), and 122 Cong. Rec. 31615- 641, 31668. Considered extensively in the 95th and 96th Congresses, similar bills were not adopted. SeeRegulatory Reform and Congressional Review of Agency Rules, Hearings before the Subcommittee on Rules of the House of the House Rules Committee, 96th Congress, 1st sess. (1979);Regulatory Reform Legislation, Hearings before the Senate Committee on Governmental Affairs, 96th Congress, 1st sess. (1979).

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 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]

NOTES:

[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.'' Ibid., 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]

NOTE:

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]

NOTE:

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, 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.

NOTES:

[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, 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.

By the terms of the Constitution, the power of Congress to levy taxes is subject to but one exception and two qualifications. Articles exported from any State may not be taxed at all. Direct taxes must be levied by the rule of apportionment and indirect taxes by the rule of uniformity. The Court has emphasized the sweeping character of this power by saying from time to time that it ``reaches every subject,'' [469] that it is ``exhaustive'' [470] or that it ``embraces every conceivable power of taxation.'' [471] Despite these generalizations, the power has been at times substantially curtailed by judicial decision with respect to the subject matter of taxation, the manner in which taxes are imposed, and the objects for which they may be levied.

NOTES:

[470] Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916).

[471] Ibid., 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 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]

NOTES:

[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 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]

NOTES:

[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.

NOTE:

Subsequent cases have sustained an estate tax on the net estate of a decedent, including state bonds, [482] excise taxes on the transportation of merchandise in performance of a contract to sell and deliver it to a county, [483] on the importation of scientific apparatus by a state university, [484] on admissions to athletic contests sponsored by a state institution, the net proceeds of which were used to further its educational program, [485] and on admissions to recreational facilities operated on a nonprofit basis by a municipal corporation. [486] Income derived by independent engineering contractors from the performance of state functions, [487] the compensation of trustees appointed to manage a street railway taken over and operated by a State, [488] profits derived from the sale of state bonds, [489] or from oil produced by lessees of state lands, [490] have all been held to be subject to federal taxation despite a possible economic burden on the State.

NOTES:

[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 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]

NOTES:

[492] Ibid., 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]

NOTES:

[494] 304 U.S. 405 (1938).

[495] Ibid., 419-420.

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]

NOTES:

[497] Ibid., 584.

[498] Ibid., 589-590.

[499] Ibid., 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 burden falls on the [other government], as long as the tax does not discriminate against the [other government] or those with which it deals.'' [502] Thus, ``the issue whether a nondiscriminatory federal tax might nonetheless violate state tax immunity does not even arise unless the Federal Government seeks to collect the tax directly from a State.'' [503]

NOTES:

[502] Ibid., 523.

[503] Ibid., 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.

NOTES:

[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] Ibid., 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 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.

NOTES:

[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.

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 arms, [521] which prescribed rigorous restrictions under which such articles could be sold or transferred, and imposed heavy penalties upon persons dealing with them in any other way. These regulations were sustained as conducive to the efficient collection of the tax though they clearly transcended in some respects this ground of justification. [522]

NOTES:

[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).

A problem of a different order is presented where the tax itself has the effect of suppressing an activity or where it is coupled with regulations that clearly have no possible relation to the collection of the tax. Where a tax is imposed unconditionally, so that no other purpose appears on the face of the statute, the Court has refused to inquire into the motives of the lawmakers and has sustained the tax despite its prohibitive proportions. [523] ``It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. . . . The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary. . . . Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. v. Hamilton, 292 U.S. 40, 47 (1934): `From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishments.''' [524]

NOTES:

[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 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.

NOTES:

[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).

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.''

NOTES:

[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 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]

NOTE:

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.

NOTES:

[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 administrations 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.

NOTES:

[534] Ibid., 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.

NOTES:

[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] Ibid., 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 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]

NOTES:

[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 autono 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]

NOTES:

[546] 301 U.S. 548 (1937).

[547] Ibid., 591.

[548] Ibid., 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 funds.

NOTES:

[550] Ibid., 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 (1937)).

[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 adjudication 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]

NOTES:

[553] 330 U.S. 127 (1947).

[554] Ibid., 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 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]

NOTES:

[556] See South Dakota v. Dole, 483 U.S. 203, 207-212 (1987).

[557] Ibid., 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, a range of restrictions and regulations that has considerable effect. [567]

NOTES:

[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.

NOTES:

[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 arising 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]

NOTES:

[571] Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937).

[572] 2 Cr. (6 U.S.) 358 (1805).

[573] Ibid., 396.

Article I, Section 8, Clause 2. The Congress shall have Power ... To borrow Money on the credit of the United States.

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]

NOTES:

[575] Ibid., 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).

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]

NOTE:

Article I, Section 8, Clause 3. The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

This clause serves a two-fold purpose: it is the direct source of the most important powers that the Federal Government exercises in peacetime, and, except for the due process and equal protection clauses of the Fourteenth Amendment, it is the most important limitation imposed by the Constitution on the exercise of state power. The latter, restrictive operation of the clause was long the more important one from the point of view of the constitutional lawyer. Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from state legislation. [578] The result was that, generally, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than in that of its operation as a source of national power. The consequence of this historical progression was that the word ``commerce'' came to dominate the clause while the word ``regulate'' remained in the background. The so-called ``constitutional revolution'' of the 1930s, however, brought the latter word to its present prominence.

NOTE:

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 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.

NOTES:

[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\

NOTES:

[583] Ibid., 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]

NOTES:

[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).

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 insurance when transacted between an insurer and an insured in different States is interstate commerce. [595] But most important of all there was the development of, or more accurately the return to, [596] the rationales by which manufacturing, [597] mining, [598] business transactions, [599] and the like, which are antecedent to or subsequent to a move across state lines, are conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce power.

NOTES:

[589] Paul v. Virginia, 8 Wall. (75 U.S.) 168 (1869); and see the cases to this effect cited in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 543-545, 567-568, 578 (1944).

[590] Federal Baseball League v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922). When called on to reconsider its decision, the Court declined, noting that Congress had not seen fit to bring the business under the antitrust laws by legislation having prospective effect and that the business had developed under the understanding that it was not subject to these laws, a reversal of which would have retroactive effect. Toolson v. New York Yankees, 346 U.S. 356 (1953). In Flood v. Kuhn, 407 U.S. 258 (1972), the Court recognized these decisions as aberrations, but it thought the doctrine entitled to the benefits of stare decisis inasmuch as Congress was free to change it at any time. The same considerations not being present, the Court has held that businesses, conducted on a multistate basis but built around local exhibitions, are in commerce and subject to, inter alia, the antitrust laws, in the instance of professional football, Radovich v. National Football League, 352 U.S. 445 (1957), professional boxing, United States v. International Boxing Club, 348 U.S. 236 (1955), and legitimate theatrical productions. United States v. Shubert, 348 U.S. 222 (1955).

[591] Blumenstock Bros. v. Curtis Publishing Co., 252 U.S. 436 (1920).

[592] Williams v. Fears, 179 U.S. 270 (1900). See also Diamond Glue Co. v. United States Glue Co., 187 U.S. 611 (1903); Browning v. City of Waycross, 233 U.S. 16 (1914); General Railway Signal Co. v. Virginia, 246 U.S. 500 (1918). But see York Manufacturing Co. v. Colley, 247 U.S. 21 (1918).

[593] Associated Press v. United States, 326 U.S. 1 (1945).

[594] American Medical Association v. United States, 317 U.S. 519 (1943). Cf. United States v. Oregon Medical Society, 343 U.S. 326 (1952).

[595] United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944).

[596] ``It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term.'' Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 194 (1824). And see id., 195-196.

[597] NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[598] Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). And see Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 275-283 (1981). See also Mulford v. Smith, 307 U.S. 38 (1939) (agricultural production).

[599] Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford v. Wallace, 258 U.S. 495 (1922); Chicago Board of Trade v. Olsen, 262 U.S. 1 (1923).

Among the Several States. -- Continuing in Gibbons v. Ogden, Chief Justice Marshall observed that the phrase "among the several States'' was ``not one which would probably have been selected to indicate the completely interior traffic of a state.'' It must therefore have been selected to demark "the exclusively internal commerce of a state.'' While, of course, the phrase "may very properly be restricted to that commerce which concerns more states than one,'' it is obvious that "[c]ommerce among the states, cannot stop at the exterior boundary line of each state, but may be introduced into the interior.'' The Chief Justice then succinctly stated the rule, which, though restricted in some periods, continues to govern the interpretation of the clause. "The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.'' [600]

NOTE:

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 boundaries, this view ignored the Marshall's equation of "intrastate commerce,'' which "affect[s] other states'' or "with which it is necessary to interfere'' in order to effectuate congressional power, with those actions that are "purely'' interstate. This equation came back into its own, both with the Court's stress on the "current of commerce'' bringing each element in the current within Congress' regulatory power, [602] with the emphasis on the interrelationships of industrial production to interstate commerce, [603] but especially with the emphasis that even minor transactions have an effect on interstate commerce [604] and that the cumulative effect of many minor transactions with no separate effect on interstate commerce, when they are viewed as a class, may be sufficient to merit congressional regulation. [605] "Commerce among the states must, of necessity, be commerce with[in] the states. . . . The power of congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states.'' [606]

NOTES:

[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 limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.'' [607]

NOTE:

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]

NOTES:

[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.

NOTES:

[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 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]

NOTES:

[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 and 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 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]

NOTES:

[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.

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]

NOTES:

[621] Ibid., 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).

There are certain dicta urging or suggesting that Congress' power to regulate interstate commerce restrictively is less than its analogous power over foreign commerce, the argument being that whereas the latter is a branch of the Nation's unlimited power over foreign relations, the former was conferred upon the National Government primarily in order to protect freedom of commerce from state interference. The four dissenting Justices in the Lottery Case endorsed this view in the following words: ``The power to regulate commerce with foreign nations and the power to regulate interstate commerce, are to be taken diverso intuitu, for the latter was intended to secure equality and freedom in commercial intercourse as between the States, not to permit the creation of impediments to such intercourse; while the former clothed Congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, 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]

NOTE:

And twelve years later Chief Justice White, speaking for the Court, expressed the same view, as follows: ``In the argument reference is made to decisions of this court dealing with the subject of the power of Congress to regulate interstate commerce, but the very postulate upon which the authority of Congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad distinction which exists between the two powers and therefore the cases cited and many more which might be cited announcing the principles which they uphold have obviously no relation to the question in hand.'' [624]

NOTE:

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 limitations imposed upon Congress' powers, as by the due process clause of the Fifth Amendment, are not transgressed. [627]

NOTES:

[626] Pittsburgh & Southern Coal Co. v. Bates, 156 U.S. 577, 587 (1895).

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

The applicability of Congress' power to the agents and instruments of commerce is implied in Marshall's opinion in Gibbons v. Ogden, [628] where the waters of the State of New York in their quality as highways of interstate and foreign transportation were held to be governed by the overriding power of Congress. Likewise, the same opinion recognizes that in ``the progress of things,'' new and other instruments of commerce will make their appearance. When the Licensing Act of 1793 was passed, the only craft to which it could apply were sailing vessels, but it and the power by which it was enacted were, Marshall asserted, indifferent to the ``principle'' by which vessels were moved. Its provisions therefore reached steam vessels as well. A little over half a century later the principle embodied in this holding was given its classic expression in the opinion of Chief Justice Waite in the case of the Pensacola Telegraph Co. v. Western Union Telegraph Co., [629] a case closely paralleling Gibbons v. Ogden in other respects also. ``The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.'' [630]

NOTES:

[629] 96 U.S. 1 (1878). See also Western Union Telegraph Co. v. Texas, 105 U.S. 460 (1882).

[630] Ibid., 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 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]

NOTES:

[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).

Navigation. -- In Pennsylvania v. Wheeling & Belmont Bridge Co., [633] the Court granted an injunction requiring that a bridge, erected over the Ohio River under a charter from the State of Virginia, either be altered so as to admit of free navigation of the river or else be entirely abated. The decision was justified on the basis both of the commerce clause and of a compact between Virginia and Kentucky, whereby both these States had agreed to keep the Ohio River "free and common to the citizens of the United States.'' The injunction was promptly rendered inoperative by an act of Congress declaring the bridge to be "a lawful structure'' and requiring all vessels navigating the Ohio to be so regulated as not to interfere with it. [634] This act the Court sustained as within Congress' power under the commerce clause, saying: "So far . . . as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of Congress, they are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, [it] is not so in the contemplation of law. . . . [Congress] having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, State and federal, which, if not sufficient, certainly none can be found in our system of government.'' [635] In short, it is Congress, and not the Court, which is authorized by the Constitution to regulate commerce. [636]

NOTES:

[634] 10 Stat 112, 6 (1852).

[635] Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 421, 430 (1856). ``It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject.'' Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883). See also Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946); Robertson v. California, 328 U.S. 440 (1946).

[636] But see In re Debs, 158 U.S. 564 (1895), in which the Court held that in the absence of legislative authorization the Executive had power to seek and federal courts to grant injunctive relief to remove obstructions to interstate commerce and the free flow of the mail.

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]

NOTES:

[638] Ibid., 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 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]

NOTES:

[640] Gibson v. United States, 166 U.S. 269 (1897). See also Bridge Co. v. United States, 105 U.S. 470 (1882); United States v Rio Grande Irrigation Co., 174 U.S. 690 (1899); United States v. Chandler- Dunbar Co., 229 U.S. 53 (1913); Seattle v. Oregon & W.R.R., 255 U.S. 56, 63 (1921); Economy Light Co. v. United States, 256 U.S. 113 (1921); United States v. River Rouge Co., 269 U.S. 411, 419 (1926); Ford & Son v. Little Falls Co., 280 U.S. 369 (1930); United States v. Commodore Park, 324 U.S. 386 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. Rands, 389 U.S. 121 (1967).

[641] United States v. Cress, 243 U.S. 316 (1917).

[642] United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 597 (1941); United States v. Willow River Co., 324 U.S. 499 (1945).

[643] United States v. Rio Grande Irrigation Co., 174 U.S. 690 (1899).

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]

NOTES:

[645] Ibid., 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 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]

NOTES:

[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 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]

NOTES:

[649] Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U.S. 58, 80 (1898).

[650] 229 U.S. 53 (1913).

[651] Ibid., 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 power.'' [654]

NOTES:

[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 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]

NOTE:

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]

NOTES:

[657] Oklahoma v. Atkinson Co., 313 U.S. 508, 523-533 passim (1941).

[658] Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

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]

NOTES:

[660] 12 Stat. 489 (1862); 13 Stat. 356 (1864); 14 Stat. 79 (1866).

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 charter private corporations for that purpose; third, it may vest such corporations with the power of eminent domain in the States; and fourth, it may exempt their franchises from state taxation. [662]

NOTES:

[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\

NOTES:

[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 authority was upheld in ICC v. Brimson, [669] in which the Court upheld the validity of the Act as a means ``necessary and proper'' for the enforcement of the regulatory commerce power and in which it also sustained the Commission's power to go to court to secure compliance with its orders. Later decisions circumscribed somewhat the ICC's power. [670]

NOTES:

[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 carriers.

NOTES:

[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 begun as a method of restraint there has emerged a policy of encouraging a consistent national transportation policy. [678]

NOTES:

[676] 54 Stat. 898 (1940), U.S.C. Sec. 1 et seq. The two acts were ``intended . . . to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers.'' United States v. Pennsylvania Railroad Co., 323 U.S. 612, 618-619 (1945). The ICC's powers include authority to determine the reasonableness of a joint through international rate covering transportation in the United States and abroad and to order the domestic carriers to pay reparations in the amount by which the rate is unreasonable. Canada Packers v. Atchison, T. & S. F. Ry. Co., 385 U.S. 182 (1966), and cases cited.

[677] Disputes between the ICC and other Government agencies over mergers have occupied a good deal of the Court's time. Cf. United States v. ICC, 396 U.S. 491 (1970). See also County of Marin v. United States, 356 U.S. 412 (1958); McLean Trucking Co. v. United States, 321 U.S. 67 (1944); Penn-Central Merger & N & W Inclusion Cases, 389 U.S. 486 (1968).

[678] Among the various provisions of the Interstate Commerce Act which have been upheld are: a section penalizing shippers for obtaining transportation at less than published rates, Armour Packing Co. v. United States, 209 U.S. 56 (1908); a section construed as prohibiting the hauling of commodities in which the carrier had at the time of haul a proprietary interest, United States v. Delaware & Hudson Co., 213 U.S. 366 (1909); a section abrogating life passes, Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467 (1911); a section authorizing the ICC to regulate the entire bookkeeping system of interstate carriers, including intrastate accounts, ICC v. Goodrich Transit Co., 224 U.S. 194 (1912); a clause affecting the charging of rates different for long and short hauls. Intermountain Rate Cases, 234 U.S. 476 (1914).

Federal Regulation of Intrastate Rates (The Shreveport Doctrine). -- Although its statutory jurisdiction did not apply to intrastate rate systems, the Commission early asserted the right to pass on rates, which, though in effect on intrastate lines, gave these lines competitive advantages over interstate lines the rates of which the Commission had set. This power the Supreme Court upheld in a case involving a line operating wholly intrastate in Texas, but which paralleled within Texas an interstate line operating between Louisiana and Texas; the Texas rate body had fixed the rates of the intrastate line substantially lower than the rate fixed by the ICC on the interstate line. "Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the States and not the Nation, would be supreme in the national field.'' [679]

NOTE:

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]

NOTE:

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]

NOTES:

[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]

NOTES:

[687] 35 Stat. 65, 45 U.S.C. Sec. Sec. 51-60.

[688] The Second Employers Liability Cases, 223 U.S. 1 (1912). For a longer period, a Court majority reviewed a surprising large number of FELA cases, almost uniformly expanding the scope of recovery under the statute. Cf. Rogers v. Missouri Pacific R., 352 U.S. 500 (1957). This practice was criticized both within and without the Court, cf. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957) (Justice Frankfurter dissenting); Hart, ``Foreword: The Time Chart of the Justices,'' 73 Harv. L. Rev. 84, 96-98 (1959), and has been discontinued.

Legislation and litigation dealing with the organizational rights of rail employees are dealt with elsewhere. [689]

NOTE:

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 Ibid., 582. Sales to distributors by a wholesaler of natural gas delivered to it from out-of-state sources are subject to FPC jurisdiction. Colorado-Wyoming Co. v. FPC, 324 U.S. 626 (1945). See also Illinois Gas Co. v. Public Service Co., 314 U.S. 498 (1942); FPC v. East Ohio Gas Co., 338 U.S. 464 (1950). In Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954), the Court ruled that an independent company engaged in one State in production, gathering, and processing of natural gas, which it thereafter sells in the same State to pipelines that transport and sell the gas in other States is subject to FPC jurisdiction. See also California v. Lo-Vaca Gathering Co., 379 U.S. 366 (1965).

Other acts regulating commerce and communication originating in this period have evoked no basic constitutional challenge. These include the Federal Communications Act of 1934, providing for the regulation of interstate and foreign communication by wire and radio, [696] and the Civil Aeronautics Act of 1938, providing for the regulation of all phases of airborne commerce, foreign and interstate. [697]

NOTES:

[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.

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.''

NOTES:

[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 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]

NOTE:

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.

NOTE:

"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]

NOTE:

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.

NOTES:

[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 "scheme as a whole'' came within the act, and that the local activities alleged were simply part and parcel of this general scheme. [705]

NOTE:

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.

NOTES:

[707] Ibid., 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.

NOTE:

The Danbury Hatters Case. -- In this respect, the Swift case only states what the Shreveport case was later to declare more explicitly, and the same may be said of an ensuing series of cases in which combinations of employees engaged in such intrastate activities as manufacturing, mining, building, construction, and the distribution of poultry were subjected to the penalties of the Sherman Act because of the effect or intended effect of their activities on interstate commerce. [709]

NOTE:

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.

NOTES:

[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]

NOTES:

[713] Ibid., 514.

[714] Ibid., 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 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]

NOTES:

[716] Ibid., 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]

NOTES:

[718] Ibid., 37, quoting Stafford v. Wallace, 258 U.S. 495, 521 (1922).

It was in reliance on the doctrine of these cases that Congress first set to work to combat the Depression in 1933 and the years immediately following. But in fact, much of its legislation at this time marked a wide advance upon the measures just passed in review. They did not stop with regulating traffic among the States and the instrumentalities thereof; they also essayed to govern production and industrial relations in the field of production. Confronted with this expansive exercise of Congress' power, the Court again deemed itself called upon to define a limit to the commerce power that would save to the States their historical sphere, and especially their customary monopoly of legislative power in relation to industry and labor management.

Securities and Exchange Commission. -- Not all antidepression legislation, however, was of this new approach. The Securities Exchange Act of 1934 [719] and the Public Utility Company Act ("Wheeler-Rayburn Act'') of 1935 [720] were not. The former created the Securities and Exchange Commission and authorized it to lay down regulations designed to keep dealing in securities honest and aboveboard and closed the channels of interstate commerce and the mails to dealers refusing to register under the act. The latter required the companies governed by it to register with the Securities and Exchange Commission and to inform it concerning their business, organization and financial structure, all on pain of being prohibited use of the facilities of interstate commerce and the mails; while by Sec. 11, the socalled "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.

NOTES:

[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).

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]

NOTE:

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 respecting hours, wages and collective bargaining. For the time being, business and industry were to be cartelized on a national scale.

NOTE:

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]

NOTES:

[725] Ibid., 548. See also ibid., 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]

NOTES: