Part 9

Section 1. Nature of legislative power: Page Doctrine of enumerated powers 71 Nondelegability of legislative power 73 Origin of doctrine 73 Functions which may be delegated 74 Power to supplement statutory provisions 74 Standards for administrative action 75 Rule-making power 76 Orders directed to particular persons 77 Delegation to private persons 78 Power to give effect to contingent legislation 79 Modification of tariff laws 79 Arms embargo 80 Internal affairs 80 Emergency statutes 81 Punishment of violations 82 Congressional investigations 82 Investigations in aid of legislation 82 Conduct of executive department 82 Private affairs 83 Purpose of inquiry 84 Judicial functions 85 Sanctions of the investigatory power 85 Contempt 85 Criminal prosecutions 85 Sections 2 and 3. House of Representatives and Senate: Qualifications of Members of Congress 87 Right to vote for Representatives and Congressional protection thereof 87 When the qualifications must be possessed 88 Enlargement of qualifications 88 Inability of States to enlarge 89 Census requirement 90 Section 4. Elections and meetings: Federal legislation under this clause 92 Legislature defined 93 Inequality of election districts 93 Congressional protection of the electoral process 94 Section 5. Powers and duties of the houses: Power to judge elections 95 Quorum to do business 96 Rules of procedure 96 Powers of the houses over members 97 Duty to keep a journal 98 Section 6. Compensation, immunities, and disabilities of Members: When the pay starts 99 Privilege from arrest 99 Privilege of speech or debate 99 Incompatible offices 101 Section 7. Legislative process: Revenue bills 102 Approval by the President 103 Veto power 103 Presentation of resolutions 104 Section 8. Powers of Congress: Clause 1. Taxing-spending power 105 Kinds of taxes permitted 105 Decline of forbidden subject matter test 105 Rise and fall of Collector _v._ Day 106 Federal taxation of State interests 106 Immunity left to the States 108 Conflicting views on the court 108 Rule of uniformity 109 Purposes of taxation 110 Regulation by taxation 110 Extermination by taxation 110 Protective tariff 112 Spending for the general welfare 112 Hamilton _v._ Madison 113 Triumph of Hamiltonian theory 113 Security Act Cases, The 115 Earmarked funds 116 Conditional grants-in-aid 116 "Debts of the United States" 116 Clause 2. Borrowing power 117 Clause 3. Power to regulate interstate and foreign commerce 118 Purpose of the clause 118 Definition of terms: Gibbons _v._ Ogden 118 "Commerce" 118 "Commerce" today 119 "Necessary and proper" clause 121 "Among the several States" 121 "Regulate" 123 Interstate versus foreign commerce 123 Instruments of commerce 125 Congressional regulation of waterways 126 Navigation 126 Hydroelectric power 130 Congress' jurisdiction over navigable streams today 131 Purposes for which power may be generated 131 Congressional regulation of land transportation 132 Early Acts: Federal provision for highways 132 Beginnings of federal railway regulation 132 Regulation of rates: Interstate Commerce Commission 133 Interstate Commerce Commission today 135 Shreveport Case 135 Act of 1920 and State railway rate regulation 136 Regulation of other agents of carriage and communication 137 Acts of Congress protective of labor engaged in interstate transportation 139 Adair Case 141 Railroad Retirement Act 142 Bills of Lading: Ferger Case 143 Congressional regulation of commerce as traffic 144 Sherman Act: Sugar Trust Case 144 Sherman Act revised 146 "Current of commerce" concept: Swift Case 147 Danbury Hatters Case 149 Stockyards and Grain Futures Acts 149 Securities and Exchange Commission 150 Congressional regulation of production and industrial relations 152 Antidepression legislation 152 National Industrial Recovery Act 152 Schechter Case 152 Agricultural Adjustment Act 153 Bituminous Coal Conservation Act 153 National Labor Relations Act 154 Fair Labor Standards Act: Darby Case 155 Agricultural Marketing Agreement Act 159 Acts of Congress prohibiting commerce 160 Foreign commerce; Jefferson's embargo 160 Foreign commerce; protective tariffs 162 Foreign commerce; banned articles 162 Interstate commerce; conflict of doctrine and opinion 163 Acts of Congress prohibitive of commerce 168 Lottery Case 169 National prohibitions and State police power 169 Hammer _v._ Dagenhart 170 Interstate commerce in stolen goods banned 171 Darby Case 172 Congress and the federal system 173 Commerce clause as a restraint on State power 173 Doctrinal background 173 Doctrinal background: Webster's contribution 175 Cooley _v._ Board of Port Wardens 175 Judicial formulas 176 Taxing power of the State and foreign commerce 177 Browne _v._ Maryland: Original package doctrine 177 State taxation of the subject matter of interstate commerce 178 General considerations 178 State Freight Tax Case 179 Goods in transit 180 State taxation of manufacturing and mining 181 Production for an established market 182 Rejection of original package concept in interstate commerce 182 Inspection charges 183 Local sales: Peddlers 184 Stoppage in transit 185 Drummer Cases; Robbins _v._ Shelby County Taxing District 186 Limitation of the Robbins Case 187 Robbins Case today 189 Depression Cases: Use taxes 189 Depression Cases: Sales taxes 190 End of the Depression Cases 191 Taxation of carriage of persons 192 State taxation of the interstate commerce privilege: Foreign Corporations 193 Doctrinal history 193 License taxes 194 Doctrine of Western Union Telegraph _v._ Kansas 196 Spread of the doctrine 196 Status of the doctrine today 197 State taxation of property engaged in, and of the proceeds from, interstate commerce 198 General issue 198 Development of the apportionment rule 199 Unit rule 200 Apportioned property taxes 201 Apportioned gross receipts taxes 202 Franchise taxes 202 Gross receipts taxes, classes of 203 Multiple taxation test 204 Recent cases 206 Taxes on net income 208 Miscellaneous taxes affecting interstate commerce 209 Vessels 209 Airplanes 210 Motor vehicles 211 Public utilities: Regulatory charges 213 Dominance of Congress 214 McCarran Act: Regulation of insurance 214 Police power and foreign commerce 215 Origin of police power 215 State curbs on entry of foreigners 216 State quarantine laws 217 State game protection and foreign commerce 217 Police power and interstate commerce 217 General principles 217 State regulation of agencies of interstate commerce 220 Railway rate regulation 220 Adequate service regulations 221 Safety and other regulations 221 Invalid State regulations 222 State regulation of length of trains 223 Lesson of Southern Pacific Co. _v._ Arizona 225 State regulation of motor vehicles: Valid regulations 226 Invalid State acts affecting motor carriers 227 Transportation agencies 228 Navigation; general doctrine 228 Bridges, dams, ferries, wharves 230 Ferries 231 Telegraphs and telephones 231 Gas and electricity 233 Foreign corporations 234 Miscellaneous 234 Banks and banking 234 Brokers 235 Commission men 235 Attachment and garnishment 235 Statutory liens 235 Police power and the subject matter of commerce 235 Scope of the police power 235 Quarantine laws 236 State inspection laws 237 State prohibition laws: The original package doctrine 238 Oleomargarine and cigarettes 239 Demise of the original package doctrine 240 Curbs on the interstate movement of persons 241 State conservation and embargo measures 242 State conservation and embargo measures: The Milk Cases 244 State conservation and embargo measures: The Shrimp Cases 245 Concurrent federal and State legislation 246 General issue 246 Hepburn Act 246 Quarantine Cases 248 Recent cases sustaining State legislation 249 Recent cases nullifying State action 250 Federal versus State labor laws 251 Commerce with Indian Tribes 252 United States _v._ Kagama 252 Clause 4. Naturalization and bankruptcies 254 Naturalization and citizenship 254 Categories of naturalized persons 254 Who are eligible for naturalization 255 Procedure of naturalization 256 Rights of naturalized persons 257 Congress' power exclusive 258 Right of expatriation: Loss of citizenship 258 Exclusion of aliens 259 Bankruptcy 262 Persons who may be released from debt 262 Liberalization of relief granted 262 Constitutional limitations on the bankruptcy power 263 Power not exclusive 264 Constitutional status of State insolvency laws 264 Clauses 5 and 6. Fiscal and monetary powers of Congress 265 Coinage, weights, and measures 265 Punishment of counterfeiting 266 Borrowing power versus the fiscal power 266 Clause 7. Postal power 267 "Establish" 267 Powers to protect the mails 268 Antislavery and the mails 268 Power to prevent harmful use of the postal facilities 268 Exclusion power as an adjunct to other powers 269 State regulations affecting the mails 270 Clause 8. Copyrights and Patents 271 Scope of the power 271 Patentable discoveries 271 Procedure in issuing patents 274 Nature and scope of the right secured 274 Power of Congress over patent rights 275 State power affecting patents and copyrights 276 Trade-marks and advertisements 276 Clause 9. _See_ article III 277 Clause 10. Piracies and felonies 277 Origin of the clause 277 Definition of offenses 277 Extraterritorial reach of the power 278 Clauses 11, 12, 13, and 14. War: Military establishments 279 War power 279 Source and scope 279 An inherent power 280 A complexus of granted powers 281 Declaration of war: When required 281 Prize Cases, The, (1863) 282 Power to raise and maintain armed forces 283 Purpose of specific grants 283 Time limit on appropriations for the army 283 Establishment of the air force 284 Conscription 284 Care of the armed forces 285 Trial and punishment of offenses 285 War legislation 286 Revolutionary war legislation 286 Civil War legislation 287 World War I legislation 287 World War II legislation 288 Mobilization of industrial resources 288 Delegation of legislative power in wartime 289 Mergence of legislative and executive in wartime 290 Doctrine of Lichter _v._ United States 290 War powers in time of peace 291 Atomic Energy Act 292 Postwar legislation 292 Private rights in wartime 293 Enemy country 293 Theatre of military operations 294 Enemy property 294 Prizes of war 295 Police regulations: Rent control 296 Personal liberty in wartime 297 Alien enemies 297 Eminent domain 298 Clauses 15 and 16. Militia 299 Militia clauses 299 Calling out the militia 299 Regulation of the militia 299 Clause 17. Seat of government, etc. 300 Seat of government 300 Nature and extent of rights ceded to United States 301 Retrocession of Alexandria county 301 Continuance of State laws 302 Status of the district today 302 Legislative power over the district 303 Taxation in the district 303 Delegation of legislative power to municipal officers 304 Courts of the district 304 Authority over places purchased 305 "Places" 305 Duration of federal jurisdiction 305 Reservation of jurisdiction by States 306 Clause 18. "Necessary and proper" clause 307 Coefficient or elastic clause 307 Scope of incidental powers 307 Operation of coefficient clause 308 Definition and punishment of crimes 308 Chartering of banks 309 Currency regulations 309 Power to charter corporations 310 Courts and judicial proceedings 310 Special acts concerning claims 311 Maritime law 311 Section 9. Powers denied to Congress 312 General purpose of the section 312 Clause 1. Importation of slaves 312 Clause 2. Suspension of the privilege of the writ of habeas corpus 312 Habeas corpus 312 Purpose of the writ 312 Errors which may be corrected on habeas corpus 313 Habeas corpus not a substitute for appeal 314 Issuance of the writ 314 Suspension of the privilege 315 Clause 3. Attainder and ex post facto laws 315 Bills of attainder 315 Ex post facto laws 316 Definition 316 What constitutes punishment 317 Changes in place or mode of trial 317 Clause 4. Capitation and direct taxes 317 Direct taxes 317 The Hylton case 317 From the Hylton to the Pollock case 318 Restriction of the Pollock decision 319 Miscellaneous 321 Clause 5. Export duties 321 Taxes on exports 321 Stamp taxes 322 Clause 6. "No preference" clause 322 Clause 7. Appropriations and accounting of public mon 323 Appropriations 323 Payment of claims 324 Clause 8. Titles of nobility and gifts from foreign States 324 Section 10. Powers denied to the States 325 Clause 1. Not to make treaties, coin money, pass ex post facto laws, impair contracts, etc. 325 Treaties, alliances, or confederations 325 Bills of credit 326 Legal tender 326 Bills of attainder 326 Ex post facto laws 327 Scope of provision 327 Denial of future privileges to past offenders 327 Changes in punishment 328 Changes in procedure 328 Obligation of contracts 329 Definition of terms 329 "Law" 329 Status of judicial decisions 329 "Obligation" 332 "Impair" 332 "Contracts," extended to cover public contracts 332 Fletcher _v._ Peck 335 New Jersey _v._ Wilson 336 Corporate charters; Different ways of regarding 336 Dartmouth College case 338 Classes of cases under the clause 339 Public grants 339 Municipal corporations 339 Public offices 340 Revocable privileges versus "contracts": Tax exemptions 341 Vested rights 343 Reservation of the right to alter and repeal 343 Right to reserve: When limited 343 Corporations as persons subject to the law 345 Corporations and the police power 345 Strict construction of public grants 346 Charles River Bridge case 346 Application of the strict construction rule 346 Strict construction of tax exemptions 347 Strict construction and the police power 348 Doctrine of inalienable State powers 349 Eminent domain power inalienable 349 Taxing power not inalienable 350 Police power: When inalienable 351 Private contracts 352 Scope of the term 352 Source of the obligation 352 Ogden _v._ Saunders 353 Remedy a part of the obligation 354 Establishment of the rule 354 Qualifications of the rule 355 Municipal Bond cases 356 Private contracts and the police power 357 Emergency legislation 358 Individual rights versus public welfare 359 Evaluation of the clause today 359 Statistical data pertinent to the clause 361 Clause 2. Not to levy duties on exports and imports 362 Duties on exports and imports 362 Scope 362 Privilege taxes 363 Property taxes 364 Inspection laws 364 Clause 3. Not to lay tonnage duties, keep troops, make compacts, or engage in war 365 Tonnage duties 365 Keeping troops 366 Interstate compacts 366 Background of clause 366 Subject matter of interstate compacts 368 Consent of Congress 368 Grants of franchise to corporation by two States 369 Legal effect of interstate compacts 369

LEGISLATIVE DEPARTMENT

Article I

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Doctrine of Enumerated Powers

Two important doctrines of Constitutional Law--that the Federal Government is one of enumerated powers and that legislative power may not be delegated--are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch _v._ Maryland: "This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted."[1] That, however, "the executive power" is not confined to the items of it which are enumerated in article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is today the doctrine of the Court;[2] and 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.[3] 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: This 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";[4] he characterizes "the power of making war," of "levying taxes," and of "regulating commerce" as "great, substantive and independent powers";[5] 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."[6] 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."[7] Story's reference is to Marshall's opinion in American Insurance Company _v._ Canter,[8] where the latter says, 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."[9] And from the power to acquire territory, he continues, arises as "the inevitable consequence" the right to govern it.[10] Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds which 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;[11] the power to impart to the paper currency of the Government the quality of legal tender in the payment of debts;[12] the power to acquire territory by discovery;[13] the power to legislate for the Indian tribes wherever situated in the United States;[14] the power to exclude and deport aliens;[15] and to require that those who are admitted be registered and fingerprinted;[16] and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. In the words of Justice Sutherland in United States _v._ Curtiss-Wright Export Corporation,[17] decided in 1936: "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers _then possessed by the states_ such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states.... That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source.... A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.... It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality."[18] Yet for the most part, these holdings do not, as Justice Sutherland suggests, 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; and verbally at least Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch _v._ Maryland.

Nondelegability of Legislative Power

ORIGIN OF DOCTRINE

At least three distinct ideas have contributed to the development of the principle that legislative power cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of separating the three powers of government if they can straightway remerge on their own motion? The second is the concept of due process of law, which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of agency "_Delegata potestas non potest delegari_," which John Locke borrowed and formulated as a dogma of political science.[19] In Hampton Jr. & Co. _v._ United States,[20] Chief Justice Taft offered the following explanation of the origin and limitations of this idea 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. * * * in 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. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination."[21]

FUNCTIONS WHICH MAY BE DELEGATED

Yielding to "common sense and the inherent necessities of governmental co-ordination" the Court has sustained numerous statutes granting in the total vast powers to administrative or executive agencies. Two different theories, both enunciated during the Chief Justiceship of John Marshall, have been utilized to justify these results. First in importance is the theory that another department may be empowered to "fill up the details" of a statute.[22] The second is that Congress may legislate contingently, leaving to others the task of ascertaining the facts which bring its declared policy into operation.[23]

POWER TO SUPPLEMENT STATUTORY PROVISIONS

The pioneer case which recognized the right of Congress to lodge in another department the power to "fill up the details" of a statute arose out of the authority given to federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. Chief Justice Marshall overruled the objection that this constituted an invalid delegation of legislative power, saying: "It will not be contended, 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. * * * The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those 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."[24]

STANDARDS FOR ADMINISTRATIVE ACTION