Article I. Legislative Department |
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ARTICLE I
__________
LEGISLATIVE DEPARTMENT
__________
CONTENTS
Page
Section 1. Legislative Powers............................. 63
Separation of Powers and Checks and Balances.............. 63
The Theory Elaborated and Implemented............. 63
Judicial Enforcement.............................. 65
Bicameralism.............................................. 70
Enumerated, Implied, Resulting, and Inherent Powers....... 71
Delegation of Legislative Power........................... 73
Origin of the Doctrine of Nondelegability......... 73
Delegation Which Is Permissible................... 75
Filling Up the Details.................... 76
Contingent Legislation.................... 76
The Effective Demise of the Nondelegation Doctrine 78
The Regulatory State...................... 78
Standards................................. 82
Foreign Affairs........................... 86
Delegations to the States................. 86
Delegation to Private Persons............. 87
Delegation and Individual Liberties....... 88
Punishment of Violations.......................... 89
Congressional Investigations.............................. 90
Source of the Power to Investigate................ 90
Investigations of Conduct of Executive Department. 92
Investigations of Members of Congress............. 93
Investigations in Aid of Legislation.............. 93
Purpose................................... 93
Protection of Witnesses: Pertinency and
Related Matters....................... 96
Protection of Witnesses: Constitutional
Guarantees............................ 100
Sanctions of the Investigatory Power: Contempt.... 103
Section 2. The House of Representatives................... 105
Clause 1. Congressional Districting....................... 105
Elector Qualifications............................ 109
Clause 2. Qualifications of Members of Congress........... 110
When the Qualifications Must Be Possessed......... 110
Exclusivity of Constitutional Qualifications...... 110
Congressional Additions........................... 110
State Additions................................... 113
Clause 3. Apportionment of Seats in the House............. 114
The Census Requirement............................ 114
Clause 4. Vacancies....................................... 116
Clause 5. Officers and Power of Impeachment............... 116
Section 3. The Senate..................................... 116
Clause 1. Composition and Selection....................... 116
Clause 2. Classes of Senators............................. 116
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Clause 3. Qualifications.................................. 117
Clause 4. The Vice President.............................. 117
Clause 5. Officers........................................ 117
Clause 6. Trial of Impeachments........................... 117
Clause 7. Judgments on Impeachment........................ 117
Section 4. Elections...................................... 117
Clause 1. Congressional Power to Regulate................. 117
Federal Legislation Protecting Electoral Process.. 118
Clause 2. Time of Assembling.............................. 121
Section 5. Powers and Duties of the Houses................ 121
Clause 1. Power to Judge Elections........................ 122
``A Quorum to Do Business''....................... 122
Clause 2. Rules of Proceedings............................ 123
Powers of the Houses Over Members................. 124
Clause 3. Duty to Keep a Journal.......................... 125
Clause 4. Adjournments.................................... 121
Section 6. Rights and Disabilities of Members............. 125
Clause 1. Compensation and Immunities..................... 126
Congressional Pay................................. 126
Privilege from Arrest............................. 127
Privilege of Speech or Debate..................... 127
Members................................... 127
Congressional Employees................... 132
Clause 2. Disabilities.................................... 134
Appointment to Executive Office................... 134
Incompatible Offices.............................. 135
Section 7. Legislative Process............................ 135
Clause 1. Revenue Bills................................... 136
Clause 2. Approval by the President....................... 137
The Veto Power.................................... 138
Clause 3. Presentation of Resolutions..................... 141
The Legislative Veto...................... 141
Section 8. Powers of Congress............................. 144
Clause 1. Power to Tax and Spend.......................... 144
Kinds of Taxes Permitted.......................... 144
Decline of the Forbidden Subject Matter
Test.................................. 144
Federal Taxation of State Interests....... 145
Scope of State Immunity from Federal
Taxation.............................. 147
Uniformity Requirement.................... 149
Purposes of Taxation.............................. 150
Regulation by Taxation.................... 150
Extermination by Taxation................. 151
Promotion of Business: Protective Tariff.. 152
Spending for the General Welfare.................. 153
Scope of the Power........................ 153
Social Security Act Cases......................... 155
An Unrestrained Federal Spending Power............ 156
Conditional Grants-In-Aid......................... 156
Earmarked Funds................................... 158
Debts of the United States........................ 158
Clause 2. Borrowing Power................................. 159
Clause 3. Commerce Power.................................. 160
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Power to Regulate Commerce........................ 160
Purposes Served by the Grant.............. 160
Definition of Terms....................... 160
Commerce.......................... 160
Among the Several States.......... 163
Regulate.......................... 164
Necessary and Proper Clause....... 165
Federalism Limits on Exercise of
Commerce Power................ 166
Illegal Commerce.................. 167
Interstate versus Foreign Commerce................ 167
Instruments of Commerce........................... 169
Congressional Regulation of Waterways............. 170
Navigation................................ 170
Hydroelectric Power; Flood Control........ 173
Congressional Regulation of Land Transportation... 175
Federal Stimulation of Land Transportation 175
Federal Regulation of Land Transportation. 176
Federal Regulation of Intrastate Rates.... 178
Federal Protection of Labor in Interstate
Rail Transportation................... 179
Regulation of Other Agents of Carriage and
Communications........................ 180
Congressional Regulation of Commerce as Traffic... 181
The Sherman Act: Sugar Trust Case......... 181
Sherman Act Revived....................... 183
The ``Current of Commerce'' Concept: The
Swift Case............................ 183
The Danbury Hatters Case.................. 184
Stockyards and Grain Futures Acts......... 185
Securities and Exchange Commission........ 186
Congressional Regulation of Production and
Industrial Relations:
Antidepression Legislation...................... 187
National Industrial Recovery Act.......... 187
Agricultural Adjustment Act............... 188
Bituminous Coal Conservation Act.......... 188
Railroad Retirement Act................... 189
National Labor Relations Act.............. 190
Fair Labor Standards Act.................. 192
Agricultural Marketing Agreement Act...... 194
Acts of Congress Prohibiting Commerce............. 196
Foreign Commerce: Jefferson's Embargo..... 196
Foreign Commerce: Protective Tariffs...... 198
Foreign Commerce: Banned Articles......... 198
Interstate Commerce: Power to Prohibit
Questioned............................ 199
Interstate Commerce: National Prohibitions
and State Police Power................ 200
The Lottery Case.......................... 200
The Darby Case............................ 202
The Commerce Clause as a Source of National Police
Power......................................... 203
Is There an Intrastate Barrier to
Congress' Commerce Power?............. 203
Civil Rights.............................. 207
Criminal Law.............................. 208
The Commerce Clause as a Restraint on State Powers 209
Doctrinal Background...................... 209
The State Proprietary Activity Exception.. 216
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Congressional Authorization of
Impermissible State Action............ 216
State Taxation and Regulation: The Old Law........ 220
General Considerations.................... 220
Taxation.................................. 221
Regulation................................ 224
State Taxation and Regulation: The Modern Law..... 227
General Considerations.................... 227
Taxation.................................. 228
Regulation................................ 233
Foreign Commerce and State Powers................. 240
Concurrent Federal and State Jurisdiction......... 243
The General Issue: Preemption............. 243
Preemption Standards.............. 245
The Standards Applied............. 246
Federal Versus State Labor Laws... 254
Commerce With Indian Tribes....................... 260
Clause 4. Naturalization and Bankruptcies................. 265
Naturalization and Citizenship.................... 265
Nature and Scope of Congress' Power....... 265
Categories of Citizens: Birth and
Naturalization........................ 267
The Naturalization of Aliens.............. 268
Rights of Naturalized Persons..................... 270
Expatriation: Loss of Citizenship................. 272
Aliens............................................ 276
The Power of Congress to Exclude Aliens... 276
Deportation............................... 280
Bankruptcy........................................ 281
Persons Who May Be Released from Debt..... 281
Liberalization of Relief Granted and
Expansion of the Rights of the Trustee 282
Constitutional Limitations on the
Bankruptcy Power...................... 283
Constitutional Status of State Insolvency
Laws: Preemption...................... 284
Clauses 5 and 6. Money.................................... 286
Fiscal and Monetary Powers of Congress............ 287
Coinage, Weights, and Measures............ 287
Punishment of Counterfeiting.............. 287
Borrowing Power versus Fiscal Power....... 288
Clause 7. Post Office..................................... 289
Postal Power...................................... 289
``Establish''............................. 289
Power to Protect the Mails................ 290
Power to Prevent Harmful Use of the Postal
Facilities............................ 290
Exclusive Power as an Adjunct to Other
Powers................................ 292
State Regulations Affecting the Mails..... 292
Clause 8. Copyrights and Patents.......................... 293
Copyrights and Patents............................ 294
Scope of the Power........................ 294
Patentable Discoveries.................... 295
Procedure in Issuing Patents.............. 297
Nature and Scope of the Right Secured..... 298
Power of Congress over Patent Rights...... 299
State Power Affecting Payments and
Copyrights............................ 300
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Trade-Marks and Advertisements............ 302
Clause 9. Creation of Courts.............................. 302
Clause 10. Maritime Crimes................................ 303
Piracies, Felonies, and Offenses Against the Law
of Nations.................................... 303
Origin of the Clause...................... 303
Definition of Offenses.................... 303
Extraterritorial Reach of the Power....... 304
Clauses 11, 12, 13, and 14. War; Military Establishment... 305
The War Power..................................... 305
Source and Scope.......................... 305
Three Theories.................... 305
An Inherent Power................. 306
A Complexus of Granted Powers..... 307
Declaration of War........................ 307
The Power to Raise and Maintain Armed Forces...... 311
Purpose of Specific Grants................ 311
Time Limit on Appropriations for the Army. 312
Conscription.............................. 312
Care of the Armed Forces.................. 314
Trial and Punishment of Offenses:
Servicemen, Civilian Employees, and
Dependents............................ 316
Servicemen........................ 316
Civilians and Dependents.......... 319
War Legislation................................... 319
War Powers in Peacetime................... 319
Delegation of Legislative Power in Wartime 322
Constitutional Rights in Wartime.................. 324
Constitution and the Advance of the Flag.. 324
Theater of Military Operations.... 324
Enemy Country..................... 324
Enemy Property.................... 325
Prizes of War..................... 326
The Constitution at Home in Wartime....... 326
Personal Liberty.................. 326
Enemy Aliens...................... 328
Eminent Domain.................... 329
Rent and Price Controls........... 330
Clauses 15 and 16. The Militia............................ 331
The Militia Clause................................ 331
Calling Out the Militia................... 331
Regulation of the Militia................. 332
Clause 17. District of Columbia; Federal Property......... 333
Seat of the Government............................ 333
Authority Over Places Purchased................... 337
``Places''................................ 337
Duration of Federal Jurisdiction.......... 338
Reservation of Jurisdiction by States..... 339
Clause 18. Necessary and Proper Clause.................... 339
Coefficient or Elastic Clause..................... 339
Scope of Incidental Powers................ 339
Operation of Coefficient Clause........... 340
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Definition of Punishment and Crimes....... 341
Chartering of Banks....................... 341
Currency Regulations...................... 342
Power to Charter Corporations............. 342
Courts and Judicial Proceedings........... 343
Special Acts Concerning Claims............ 343
Maritime Law.............................. 344
Section 9. Powers Denied to Congress...................... 344
Clause 1. Importation of Slaves........................... 344
General Purpose of Sec. 9......................... 344
Clause 2. Habeas Corpus Suspension........................ 345
Clause 3. Bills of Attainder and Ex Post Facto Laws....... 346
Bills of Attainder................................ 347
Ex Post Facto Laws................................ 350
Definition................................ 350
What Constitutes Punishment............... 351
Change in Place or Mode of Trial.......... 352
Clause 4. Taxes........................................... 352
Direct Taxes...................................... 352
The Hylton Case........................... 352
From the Hylton to the Pollock Case....... 353
Restriction of the Pollock Decision....... 354
Miscellaneous............................. 354
Clause 5. Duties on Exports from States................... 356
Taxes on Exports.................................. 356
Stamp Taxes............................... 356
Clause 6. Preference to Ports............................. 357
The ``No Preference'' Clause...................... 357
Clause 7. Appropriations and Accounting of Public Money... 358
Appropriations.................................... 358
Payment of Claims................................. 358
Clause 8. Titles of Nobility; Presents.................... 359
Section 10. Powers Denied to the States................... 359
Clause 1. Not to Make Treaties, Coin Money, Pass Ex Post
Facto Laws, Impair Contracts.......................... 359
Treaties, Alliances, or Confederations............ 360
Bills of Credit................................... 360
Legal Tender...................................... 361
Bills of Attainder................................ 361
Ex Post Facto Laws................................ 362
Scope of the Provision.................... 362
Denial of Future Privileges to Past
Offenders............................. 363
Changes in Punishment..................... 363
Changes in Procedure...................... 365
Obligation of Contracts........................... 366
``Law'' Defined........................... 366
Status of Judicial Decisions.............. 366
``Obligation'' Defined.................... 369
``Impair'' Defined........................ 369
Vested Rights Not Included................ 370
Public Grants That Are Not ``Contracts''.. 370
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Tax Exemptions: When Not ``Contracts''.... 372
``Contracts'' Include Public Contracts and
Corporate Charters.................... 374
Corporate Charters: Different Ways of
Regarding............................. 377
Reservation of Right to Alter or Repeal
Corporate Charters.................... 379
Corporation Subject to the Law and Police
Power................................. 380
Strict Construction of Charters, Tax
Exemptions............................ 381
Strict Construction and the Police Power.. 384
Doctrine of Inalienability as Applied to
Eminent Domain, Taxing, and Police
Powers................................ 385
Private Contracts......................... 388
Remedy a Part of the Private Obligation... 389
Private Contracts and the Police Power.... 392
Evaluation of the Clause Today............ 395
Clause 2. Not to Levy Duties on Exports and Imports....... 398
Duties on Exports and Imports..................... 399
Scope..................................... 399
Privilege Taxes........................... 400
Property Taxes............................ 400
Inspection Laws........................... 401
Clause 3. Not to Lay Tonnage Duties, Keep Troops, Make
Compacts, or Engage in War............................ 402
Tonnage Duties.................................... 402
Keeping Troops.................................... 403
Interstate Compacts............................... 403
Background of Clause...................... 403
Subject Matter of Interstate Compacts..... 404
Consent of Congress....................... 405
Grants of Franchise to Corporations by Two
States................................ 406
Legal Effects of Interstate Compacts...... 406
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ARTICLE I
LEGISLATIVE DEPARTMENT
Section 1. All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House
of Representatives.
SEPARATION OF POWERS AND CHECKS AND BALANCES
The Constitution nowhere contains an express injunction to
preserve the boundaries of the three broad powers it grants, nor does it
expressly enjoin maintenance of a system of checks and balances. Yet, it
does grant to three separate branches the powers to legislate, to
execute, and to adjudicate, and it provides throughout the document the
means by which each of the branches could resist the blandishments and
incursions of the others. The Framers drew up our basic charter against
a background rich in the theorizing of scholars and statesmen regarding
the proper ordering in a system of government of conferring sufficient
power to govern while withholding the ability to abridge the liberties
of the governed.\1\
\1\Among the best historical treatments are M. Vile,
Constitutionalism and the Separation of Powers (1967), and W. Gwyn, The
Meaning of the Separation of Powers (1965).
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The Theory Elaborated and Implemented
When the colonies separated from Great Britain following the
Revolution, the framers of their constitutions were imbued with the
profound tradition of separation of powers, and they freely and
expressly embodied in their charters the principle.\2\ But the theory of
checks and balances was not favored because it was drawn from Great
Britain, and, as a consequence, violations of the separation-of-powers
doctrine by the legislatures of the States were common
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place events prior to the convening of the Convention.\3\ As much as
theory did the experience of the States furnish guidance to the Framers
in the summer of 1787.\4\
\2\Thus the Constitution of Virginia of 1776 provided: ``The
legislative, executive, and judiciary department shall be separate and
distinct, so that neither exercise the powers properly belonging to the
other; nor shall any person exercise the powers of more than one of
them, at the same time[.]'' Reprinted in 10 W. Swindler (ed.), Sources
and Documents of United States Constitutions (1979), 52. See also 5 id.,
96, Art. XXX of Part First, Massachusetts Constitution of 1780: ``In the
government of this commonwealth, the legislative department shall never
exercise the executive and judicial powers, or either of them; the
executive shall never exercise the legislative and judicial powers, or
either of them; the judicial shall never exercise the legislative and
executive powers, or either of them; to the end it may be a government
of laws, and not of men.''
\3\``In republican government the legislative authority,
necessarily, predominates.'' The Federalist No. 51 (J. Cooke ed. 1961),
350 (Madison). See also id., No. 48, 332-334. This theme continues today
to influence the Court's evaluation of congressional initiatives. E.g.,
Metropolitan Washington Airports Auth. v. Citizens for the Abatement of
Aircraft Noise, 501 S.Ct. 252, 273-2274, 277 (1991). But compare id.,
286 n. 3 (Justice White dissenting).
\4\The intellectual history through the state period and the
Convention proceedings is detailed in G. Wood, The Creation of the
American Republic, 1776-1787 (1969) (see index entries under
``separation of powers'').
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The doctrine of separation of powers, as implemented in drafting
the Constitution, was based on several principles generally held: the
separation of government into three branches, legislative, executive,
and judicial; the conception that each branch performs unique and
identifiable functions that are appropriate to each; and the limitation
of the personnel of each branch to that branch, so that no one person or
group should be able to serve in more than one branch simultaneously. To
a great extent, the Constitution effectuated these principles, but
critics objected to what they regarded as a curious intermixture of
functions, to, for example, the veto power of the President over
legislation and to the role of the Senate in the appointment of
executive officers and judges and in the treaty-making process. It was
to these objections that Madison turned in a powerful series of
essays.\5\
\5\The Federalist Nos. 47-51 (J. Cooke ed. 1961), 323-353
(Madison).
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Madison recurred to ``the celebrated'' Montesquieu, the ``oracle
who is always consulted,'' to disprove the contentions of the critics.
``[T]his essential precaution in favor of liberty,'' that is, the
separation of the three great functions of government had been achieved,
but the doctrine did not demand rigid separation. Montesquieu and other
theorists ``did not mean that these departments ought to have no partial
agency in, or controul over, the acts of each other,'' but rather
liberty was endangered ``where the whole power of one department is
exercised by the same hands which possess the whole power of another
department.''\6\ That the doctrine did not demand absolute separation
provided the basis for preservation of separation of powers in action.
Neither sharply drawn demarcations of institutional boundaries nor
appeals to the electorate were sufficient.\7\ Instead, the security
against concentration of powers ``consists in giving to those who
administer each department the necessary constitutional means and
personal motives to resist encroachments of the others.'' Thus,
``[a]mbition must be made to
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counteract ambition. The interest of the man must be connected with the
constitutional rights of the place.''\8\
\6\Id., No. 47, 325-326(emphasis in original).
\7\Id., Nos. 47-49, 325-343.
\8\Id., No. 51, 349.
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Institutional devices to achieve these principles pervade the
Constitution. Bicameralism reduces legislative predominance, while the
presidential veto gives to the Chief Magistrate a means of defending
himself and of preventing congressional overreaching. The Senate's role
in appointments and treaties checks the President. The courts are
assured independence through good behavior tenure and security of
compensation, and the judges through judicial review will check the
other two branches. The impeachment power gives to Congress the
authority to root out corruption and abuse of power in the other two
branches. And so on.
Judicial Enforcement
Throughout much of our history, the ``political branches'' have
contended between themselves in application of the separation-of-powers
doctrine. Many notable political disputes turned on questions involving
the doctrine. Inasmuch as the doctrines of separation of powers and of
checks and balances require both separation and intermixture,\9\ the
role of the Supreme Court in policing the maintenance of the two
doctrines is problematic at best. And, indeed, it is only in the last
two decades that cases involving the doctrines have regularly been
decided by the Court. Previously, informed understandings of the
principles have underlain judicial construction of particular clauses or
guided formulation of constitutional common law. That is, the
nondelegation doctrine was from the beginning suffused with a
separation-of-powers premise,\10\ and the effective demise of the
doctrine as a judicially-enforceable construct reflects the Court's
inability to give any meaningful content to it.\11\ On the other hand,
periodically, the Court has essayed a strong separation position on
behalf of the President, sometimes with lack of success,\12\ sometimes
successfully.
\9\``While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its branches
separateness but interdependence, autonomy but reciprocity.'' Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Justice Jackson
concurring).
\10\E.g., Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v.
Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).
\11\See Mistretta v. United States, 488 U.S. 361, 415-416 (1989)
(Justice Scalia dissenting).
\12\The principal example is Myers v. United States, 272 U.S. 52
(1926), written by Chief Justice Taft, himself a former President. The
breadth of the holding was modified in considerable degree in Humphrey's
Executor v. United States, 295 U.S. 602 (1935), and the premise of the
decision itself was recast and largely softened in Morrison v. Olson,
487 U.S. 654 (1988).
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Following a lengthy period of relative inattention to separation
of powers issues, the Court since 1976\13\ has recurred to the doctrine
in numerous cases, and the result has been a substantial curtailing of
congressional discretion to structure the National Government. Thus, the
Court has interposed constitutional barriers to a congressional scheme
to provide for a relatively automatic deficit-reduction process because
of the critical involvement of an officer with significant legislative
ties,\14\ to the practice set out in more than 200 congressional
enactments establishing a veto of executive actions,\15\ and to the
vesting of broad judicial powers to handle bankruptcy cases in officers
not possessing security of tenure and salary.\16\ Contrarily, the
highly-debated establishment by Congress of a process by which
independent special prosecutors could be established to investigate and
prosecute cases of alleged corruption in the Executive Branch was
sustained by the Court in a opinion that may presage a judicial approach
in separation of powers cases more accepting of some blending of
functions at the federal level.\17\
\13\Beginning with Buckley v. Valeo, 424 U.S. 1, 109-143 (1976),
a relatively easy case, in which Congress had attempted to reserve to
itself the power to appoint certain officers charged with enforcement of
a law.
\14\Bowsher v. Synar, 478 U.S. 714 (1986).
\15\INS v. Chadha, 462 U.S. 919 (1983).
\16\Northern Pipeline Construction Co. v. Marathon Pipe Line
Co., 458 U.S. 50 (1982).
\17\Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta
v. United States, 488 U.S. 361 (1989).
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Important as were the results in this series of cases, the
development in the cases of two separate and inconsistent doctrinal
approaches to separation of powers issues occasioned the greatest amount
of commentary. The existence of the two approaches, which could
apparently be employed in the discretion of the Justices, made difficult
the prediction of the outcomes of differences over proposals and
alternatives in governmental policy. Significantly, however, it appeared
that the Court most often used a more strict analysis in cases in which
infringements of executive powers were alleged and a less strict
analysis when the powers of the other two Branches were concerned. The
special prosecutor decision, followed by the decision sustaining the
Sentencing Commission, may signal the adoption of a single analysis, the
less strict analysis, for all separation of power cases or it may turn
out to be but an exception to the Court's dual doctrinal approach.\18\
\18\The tenor of a later case, Metropolitan Washington Airports
Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252
(1991), was decidedly formalistic, but it involved a factual situation
and a doctrinal predicate easily rationalized by the principles of
Morrison and Mistretta, aggrandizement of its powers by Congress.
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), reasserted the
fundamentality of Marathon, again in a bankruptcy courts context,
although the issue was the right to a jury trial under the Seventh
Amendment rather than strictly speaking a separation-of-powers question.
Freytag v. CIR, 501 U.S. 868 (1991), pursued a straightforward
appointments-clause analysis, informed by a separation-of-powers
analysis but not governed by it. Finally, in Public Citizen v. U. S.
Department of Justice, 491 U.S. 440, 467 (1989) (concurring), Justice
Kennedy would have followed the formalist approach, but he explicitly
grounded it on the distinction between an express constitutional vesting
of power as against implicit vestings. Separately, the Court has for
some time viewed the standing requirement for access to judicial review
as reflecting a separation-of-powers component--confining the courts to
their proper sphere--Allen v. Wright, 468 U.S. 737, 752 (1984), but that
view seemed largely superfluous to the conceptualization of standing
rules. However, in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2144-
2146 (1992), the Court imported the take-care clause, obligating the
President to see to the faithful execution of the laws, into standing
analysis, creating a substantial barrier to congressional decisions to
provide for judicial review of executive actions. It is not at all
clear, however, that the effort, by Justice Scalia, enjoys the support
of a majority of the Court. Id., 2146-2147(Justices Kennedy and Souter
concurring). The cited cases do seem to demonstrate that a strongly
formalistic wing of the Court does continue to exist.
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While the two doctrines have been variously characterized, the
names generally attached to them have been ``formalist,'' applied to the
more strict line, and ``functional,'' applied to the less strict. The
formalist approach emphasizes the necessity to maintain three distinct
branches of government through the drawing of bright lines demarcating
the three branches from each other determined by the differences among
legislating, executing, and adjudicating.\19\ The functional approach
emphasizes the core functions of each branch and asks whether the
challenged action threatens the essential attributes of the legislative,
executive, or judicial function or functions. Under this approach, there
is considerable flexibility in the moving branch, usually Congress
acting to make structural or institutional change, if there is little
significant risk of impairment of a core function or in the case of such
a risk if there is a compelling reason for the action.\20\
\19\``The hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power . . . must be
resisted. Although not `hermetically' sealed from one another, the
powers delegated to the three Branches are functionally identifiable.''
INS v. Chadha, 462 U.S. 919, 951 (1983). See id., 944-51; Northern
Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64-66
(1982) (plurality opinion); Bowsher v. Synar, 478 U.S. 714, 721-727
(1986).
\20\CFTC v. Schor, 478 U.S. 833, 850-51, 856-57 (1986); Thomas
v. Union Carbide Agric. Products Co., 473 U.S. 568, 587, 589-93 (1985).
The Court had first formulated this analysis in cases challenging
alleged infringments on presidential powers, United States v. Nixon, 418
U.S. 683, 713 (1974); Nixon v. Administrator of General Services, 433
U.S. 425, 442-43 (1977), but it had subsequently turned to the more
strict test. Schor and Thomas both involved provisions challenged as
infringing judicial powers.
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Chadha used the formalist approach to invalidate the legislative
veto device by which Congress could set aside a determination by the
Attorney General, pursuant to a delegation from Congress, to suspend
deportation of an alien. Central to the decision were two conceptual
premises. First, the action Congress had taken was leg
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islative, because it had the purpose and effect of altering the legal
rights, duties, and relations of persons outside the Legislative Branch,
and thus Congress had to comply with the bicameralism and presentment
requirements of the Constitution.\21\ Second, the Attorney General was
performing an executive function in implementing the delegation from
Congress, and the legislative veto was an impermissible interference in
the execution of the laws. Congress could act only by legislating, by
changing the terms of its delegation.\22\ In Bowsher, the Court held
that Congress could not vest even part of the execution of the laws in
an officer, the Comptroller General, who was subject to removal by
Congress because this would enable Congress to play a role in the
execution of the laws. Congress could act only by passing other
laws.\23\
\21\INS v. Chadha, 462 U.S. 919, 952 (1983).
\22\Id., 954-955.
\23\Bowsher v. Synar, 478 U.S. 714, 726-727, 733-734 (1986).
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On the same day Bowsher was decided through a formalist
analysis, the Court in Schor utilized the less strict, functional
approach in resolving a challenge to the power of a regulatory agency to
adjudicate as part of a larger canvas a state common-law issue, the very
kind of issue that Northern Pipeline, in a formalist plurality opinion
with a more limited concurrence, had denied to a non-Article III
bankruptcy court.\24\ Sustaining the agency's power, the Court
emphasized ``the principle that `practical attention to substance rather
than doctrinaire reliance on formal categories should inform application
of Article III.'''\25\ It held that in evaluating such a separation of
powers challenge, the Court had to consider the extent to which the
``essential attributes of judicial power'' were reserved to Article III
courts and conversely the extent to which the non-Article III entity
exercised the jurisdiction and powers normally vested only in Article
III courts, the origin and importance of the rights to be adjudicated,
and the concerns that drove Congress to depart from the requirements of
Article III.\26\ Bowsher, the Court said, was not contrary, because
``[u]nlike Bowsher, this case raises no question of the aggrandizement
of congressional power at the expense of a coordinate branch.''\27\ The
test was a balancing
[[Page 69]]
one, whether Congress had impermissibly undermined the role of another
branch without appreciable expansion of its own power.
\24\While the agency in Schor was an independent regulatory
commission and the bankruptcy court in Northern Pipeline was either an
Article I court or an adjunct to an Article III court, the
characterization of the entity is irrelevant and, in fact, the Court
made nothing of the difference. The issue in either case was whether the
judicial power of the United States could be conferred on an entity not
an Article III court.
\25\CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v.
Union Carbide Agric. Products Co., 473 U.S. 568, 587 (1985)).
\26\Id., 851.
\27\Id., 856.
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While the Court, in applying one or the other analysis in
separation of powers cases, had never indicated its standards for
choosing one analysis over the other, beyond inferences that the
formalist approach was proper when the Constitution fairly clearly
committed a function or duty to a particular branch and the functional
approach was proper when the constitutional text was indeterminate and a
determination must be made on the basis of the likelihood of impairment
of the essential powers of a branch, the overall results had been a
strenuous protection of executive powers and a concomitant relaxed view
of the possible incursions into the powers of the other branches. It was
thus a surprise, then, when in the independent counsel case, the Court,
again without stating why it chose that analysis, utilized the
functional standard to sustain the creation of the independent
counsel.\28\ The independent-counsel statute, the Court emphasized, was
not an attempt by Congress to increase its own power at the expense of
the executive nor did it constitute a judicial usurpation of executive
power. Moreover, the Court stated, the law did not ``impermissibly
undermine'' the powers of the Executive Branch nor did it ``disrupt the
proper balance between the coordinate branches [by] prevent[ing] the
Executive Branch from accomplishing its constitutionally assigned
functions.''\29\ Acknowledging that the statute undeniably reduced
executive control over what it had previously identified as a core
executive function, the execution of the laws through criminal
prosecution, through its appointment provisions and its assurance of
independence by limitation of removal to a ``good cause'' standard, the
Court nonetheless noticed the circumscribed nature of the reduction, the
discretion of the Attorney General to initiate appointment, the limited
jurisdiction of the counsel, and the power of the Attorney General to
ensure that the laws are faithfully executed by the counsel. This
balancing, the Court thought, left the President with sufficient control
to ensure that he is able to perform his constitutionally assigned
functions.
\28\To be sure, the appointments clause did specifically provide
that Congress could vest in the courts the power to appoint inferior
officers, Morrison v. Olson, 487 U.S. 654, 670-677 (1988), making
possible the contention that, unlike Chadha and Bowsher, Morrison is a
textual commitment case. But the Court's separate evaluation of the
separation of powers issue does not appear to turn on that distinction.
Id., 685-696. Nevertheless, the existence of this possible distinction
should make one wary about lightly reading Morrison as a rejection of
formalism when executive powers are litigated.
\29\Id., 695 (quoting, respectively, Schor, supra, 478 U.S.,
856, and Nixon v. Administrator of General Services, supra, 433 U.S.,
443).
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[[Page 70]]
A notably more pragmatic, functional analysis suffused the
opinion of the Court when it upheld the constitutionality of the
Sentencing Commission.\30\ Charged with promulgating guidelines binding
on federal judges in sentencing convicted offenders, the seven-member
Commission, three members of which had to be Article III judges, was
made an independent entity in the judicial branch. The President
appointed all seven members, the judges from a list compiled by the
Judicial Conference, and he could remove from the Commission any member
for cause. According to the Court, its separation-of-powers
jurisprudence is always animated by the concerns of encroachment and
aggrandizement. ``Accordingly, we have not hesitated to strike down
provisions of law that either accrete to a single Branch powers more
appropriately diffused among separate Branches or that undermine the
authority and independence of one or another coordinate Branch.''\31\
Thus, to each of the discrete questions, the placement of the
Commission, the appointment of the members, especially the service of
federal judges, and the removal power, the Court carefully analyzed
whether one branch had been given power it could not exercise or had
enlarged its powers impermissibly and whether any branch would have its
institutional integrity threatened by the structural arrangement.
\30\Mistretta v. United States, 488 U.S. 361 (1989).
Significantly, the Court did acknowledge reservations with respect to
the placement of the Commission as an independent entity in the judicial
branch. Id., 384, 397, 407-08. As in Morrison, Justice Scalia was the
lone dissenter, arguing for a fairly rigorous application of separation-
of-powers principles. Id., 413, 422-427.
\31\Id., 382.
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Although it is possible, even likely, that Morrison and
Mistretta represent a decision by the Court to adopt for all separation-
of-powers cases the functional analysis, the history of adjudication
since 1976 and the shift of approach between Myers and Humphrey's
Executor suggest caution. Recurrences of the formalist approach have
been noted. Additional decisions must be forthcoming before it can be
decided that the Court has finally settled on the functional approach.
BICAMERALISM
By providing for a National Legislature of two Houses, the
Framers, deliberately or adventitiously, served several functions.
Examples of both unicameralism and bicameralism abounded. Some of the
ancient republics, to which the Framers often repaired for the learning
of experience, had two-house legislatures, and the Parliament of Great
Britain was based in two social orders, the hereditary aristocracy
represented in the House of Lords and the
[[Page 71]]
freeholders of the land represented in the House of Commons. A number of
state legislatures, following the Revolution, were created unicameral,
and the Continental Congress, limited in power as it was, consisted of
one house.
From the beginning in the Convention, in the Virginia Plan, a
two-house Congress was called for. The Great Compromise, one of the
critical decisions leading to a successful completion of the Convention,
resolved the dispute about the national legislature by providing for a
House of Representatives apportioned on population and a Senate in which
the States were equally represented. The first function served, thusly,
was federalism.\32\ Coextensively important, however, was the
separation-of-powers principle served. The legislative power, the
Framers both knew and feared, was predominant in a society dependent
upon the suffrage of the people, and it was important to have a
precaution against the triumph of transient majorities. Hence, the
Constitution's requirement that before lawmaking could be carried out
bills must be deliberated in two Houses, their Members beholden to
different constituencies, was in pursuit of this observation from
experience.\33\
\32\The Federalist, No. 39 (J. Cooke ed. 1961), 250-257
(Madison).
\33\Id., No. 51, 347-353 (Madison). The assurance of the
safeguard is built into the presentment clause. Article I, Sec. 7, cl.
2; and see id., cl. 3. The structure is not often the subject of case
law, but it was a foundational matter in INS v. Chadha, 462 U.S. 919,
944-951 (1983).
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Events since 1787, of course, have altered both the separation-
of-powers and the federalism bases of bicameralism, in particular the
adoption of the Seventeenth Amendment resulting in the popular election
of Senators, so that the differences between the two Chambers are today
less pronounced.
ENUMERATED, IMPLIED, RESULTING, AND INHERENT POWERS
Two important doctrines of constitutional law--that the Federal
Government is one of enumerated powers and that legislative powers may
not be delegated--are derived in part from this section. The classical
statement of the former is that by Chief Justice Marshall in McCulloch
v. Maryland: ``This government is acknowledged by all, to be one of
enumerated powers. The principle, that it can exercise only the powers
granted to it, would seem too apparent, to have required to be enforced
by all those arguments, which its enlightened friends, while it was
depending before the people, found it necessary to urge; that principle
is now universally admitted.''\34\
\34\4 Wheat. (17 U.S.) 316, 405 (1819).
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[[Page 72]]
That, however, ``the executive power'' is not confined to those
items expressly enumerated in Article II was asserted early in the
history of the Constitution by Madison and Hamilton alike and is found
in decisions of the Court;\35\ a similar latitudinarian conception of
``the judicial power of the United States'' was voiced in Justice
Brewer's opinion for the Court in Kansas v. Colorado.\36\ But even when
confined to ``the legislative powers herein granted,'' the doctrine is
severely strained by Marshall's conception of some of these as set forth
in his McCulloch v. Maryland opinion. He asserts that ``the sword and
the purse, all the external relations and no inconsiderable portion of
the industry of the nation, are intrusted to its government;''\37\ he
characterizes ``the power of making war,'' of ``levying taxes,'' and of
``regulating commerce'' as ``great, substantive and independent
powers;''\38\ and the power conferred by the ``necessary and proper''
clause embraces, he declares, all legislative ``means which are
appropriate'' to carry out the legitimate ends of the Constitution,
unless forbidden by ``the letter and spirit of the Constitution.''\39\
\35\Infra, pp. 445-452.
\36\206 U.S. 46, 82 (1907).
\37\4 Wheat. (17 U.S.), 407.
\38\Id., 411.
\39\Id., 421.
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Nine years later, Marshall introduced what Story in his
Commentaries labels the concept of ``resulting powers,'' those which
``rather be a result from the whole mass of the powers of the National
Government, and from the nature of political society, than a consequence
or incident of the powers specially enumerated.''\40\ Story's reference
is to Marshall's opinion in American Insurance Co. v. Canter,\41\ where
the latter said, that ``the Constitution confers absolutely on the
government of the Union, the powers of making war, and of making
treaties; consequently, that government possesses the power of acquiring
territory, either by conquest or by treaty.''\42\ And from the power to
acquire territory, he continues arises as ``the inevitable
consequence,'' the right to govern it.\43\
\40\2 J. Story, Commentaries on the Constitution of the United
States (Boston: 1833), 1256. See also id., 1286 and 1330.
\41\1 Pet. (26 U.S.) 511 (1828).
\42\Id., 542.
\43\Id., 543.
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Subsequently, powers have been repeatedly ascribed to the
National Government by the Court on grounds that ill accord with the
doctrine of enumerated powers: the power to legislate in effectuation of
the ``rights expressly given, and duties expressly enjoined'' by the
Constitution;\44\ the power to impart to the paper cur
[[Page 73]]
rency of the Government the quality of legal tender in the payment of
debts;\45\ the power to acquire territory by discovery;\46\ the power to
legislate for the Indian tribes wherever situated in the United
States;\47\ the power to exclude and deport aliens;\48\ and to require
that those who are admitted be registered and fingerprinted;\49\ and
finally the complete powers of sovereignty, both those of war and peace,
in the conduct of foreign relations. Thus, in United States v. Curtiss-
Wright Corp.,\50\ decided in 1936, Justice Sutherland asserted the
dichotomy of domestic and foreign powers, with the former limited under
the enumerated powers doctrine and the latter virtually free of any such
restraint. That doctrine has been the source of much scholarly and
judicial controversy, but, although limited, it has not been repudiated.
\44\Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 616, 618-619
(1842).
\45\Juilliard v. Greenman, 110 U.S. 421, 449-450 (1884). See
also Justice Bradley's concurring opinion in Knox v. Lee, 12 Wall. (79
U.S.) 457, 565 (1871).
\46\United States v. Jones, 109 U.S. 513 (1883).
\47\United States v. Kagama, 118 U.S. 375 (1886).
\48\Fong Yue Ting v. United States, 149 U.S. 698 (1893).
\49\Hines v. Davidowitz, 312 U.S. 52 (1941).
\50\299 U.S. 304 (1936).
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Yet, for the most part, these holdings do not, as Justice
Sutherland suggested, directly affect ``the internal affairs'' of the
nation; they touch principally its peripheral relations, as it were. The
most serious inroads on the doctrine of enumerated powers are, in fact,
those which have taken place under cover of the doctrine--the vast
expansion in recent years of national legislative power in the
regulation of commerce among the States and in the expenditure of the
national revenues. Verbally, at least, Marshall laid the ground for
these developments in some of the phraseology above quoted from his
opinion in McCulloch v. Maryland.
DELEGATION OF LEGISLATIVE POWER
Origin of the Doctrine of Nondelegability
``That the legislative power of Congress cannot be delegated is,
of course, clear.'' \51\ This 1932 statement has never been literally
true, the delegation at issue in the very case in which the statement
was made was upheld, and the Court in recent years has felt little
constrained to much more than bow in the direction of the doctrine.Yet
the doctrine of nondelegation of legislative powers and the permissible
exception of delegation accompanied by standards
[[Page 74]]
have so settled a place in constitutional jurisprudence that notice must
be given at some length.\52\
\51\United States v. Shreveport Grain & Elevator Co., 287 U.S.
77, 85 (1932). See also Field v. Clark, 143 U.S. 649, 692 (1892); Wayman
v. Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).
\52\For particularly useful discussions of delegations, see 1 K.
Davis, Administrative Law Treatise (St. Paul: 2d ed., 1978), Ch. 3; L.
Jaffe, Judicial Control of Administrative Action (Boston: 1965), ch. 2.
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At least three distinct ideas contributed to the development of
the doctrine that legislative power cannot be delegated. The first idea
is the doctrine of separation of powers, the idea that the law-making
power is vested in the legislative branch, the law-executing power in
the executive branch, and the law-interpreting power in the judicial
branch.\53\ Is it not a violation of the doctrine to permit the law-
making branch to divest itself of some of its power and confer it on one
or the other of the other branches or to particular offices in the other
branch?
\53\Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v.
Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).
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The second idea is a due process conception precluding the
transfer of regulatory functions to private persons, a distinct specie
of the delegation doctrine not relevant usually in the field of
administration, of delegation to another public agency.\54\
\54\Carter v. Carter Coal Co., 298 U.S. 238, 310-312 (1936).
Since the separation-of-powers doctrine is inapplicable to the States as
a requirement of federal constitutional law, Dreyer v. Illinois, 187
U.S. 71, 83-84 (1902), it is the due process clause to which federal
courts must look for authority to review the delegation by state
legislatures of power to others which the legislature might have
exercised directly. E.g., Eubank v. City of Richmond, 226 U.S. 137
(1912); Embree v. Kansas City Road District, 240 U.S. 242 (1916).
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The third idea concerns the maxim ``delegata potestas non potest
delegari,'' which John Locke borrowed from agency and offered as a
principle of political science.\55\ In J. W. Hampton, Jr., & Co. v.
United States,\56\ Chief Justice Taft explained the origin and
limitations of this phrase as a postulate of constitutional law. ``The
well-known maxim `delegata potestas non potest delegari,' applicable to
the law of agency in the general and common law, is well understood and
has had wider application in the construction of our Federal and State
Constitutions than it has in private law. The Federal Constitution and
State Constitutions of this country divide the governmental power into
three branches. . . . [I]n carrying out that constitutional division
. . . it is a breach of the National fundamental law if Congress gives
up its legislative power and transfers it to the President, or to the
Judicial branch, or if by law it attempts to invest itself or its
members with either executive power or judicial power.''
\55\J. Locke, Second Treatise on Government (London: 1691), Ch.
11, 141.
\56\276 U.S. 394, 405-406 (1928).
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[[Page 75]]
But whatever the source or combination of sources of the
doctrine, decisions of the Court accepting without comment delegations
of vast powers to administrative or executive agencies constitute a de
facto recognition that Congress in the exercise of its granted powers,
in conjunction with its necessary and proper power, often cannot either
foresee or resolve problems of application of general laws to specific
situations. Thus, ``[d]elegation by Congress has long been recognized as
necessary in order that the exertion of legislative power does not
become a futility.''\57\
\57\Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398
(1940).
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Delegation Which Is Permissible
``It will not be contended,'' wrote Chief Justice Marshall in
1825, ``that congress can delegate to the courts, or to any other
tribunals, powers which are strictly and exclusively legislative. But
congress may certainly delegate to others, powers which the legislature
may rightfully exercise itself.''\58\ ``This is not to say,'' said Chief
Justice Taft, ``that the three branches are not co-ordinate parts of one
government and that each in the field of its duties may not invoke the
action of the two other branches in so far as the action invoked shall
not be an assumption of the constitutional field of action of another
branch. In determining what it may do in seeking assistance from another
branch, the extent and character of that assistance must be fixed
according to common sense and the inherent necessities of the
governmental co-ordination.''\59\ Chief Justice Marshall frankly noted
``that there is some difficulty in discerning the exact limits'' on the
legislative power to delegate. Thus, ``the precise boundary of this
power is a subject of delicate and difficult inquiry, into which a court
will not enter unnecessarily.''\60\
\58\Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 41 (1825).
\59\J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406
(1928).
\60\Id., 10 Wheat. (23 U.S.), 42.
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Two theories suggested themselves to the early Court to justify
the results of sustaining delegations. The Chief Justice alluded to the
first in Wayman v. Southard.\61\ He distinguished between ``important''
subjects, ``which must be entirely regulated by the legislature
itself,'' and subjects ``of less interest, in which a general provision
may be made, and power given to those who are to act under such general
provisions, to fill up the details.'' While his distinction may be lost,
the theory of the power ``to fill up the details'' is impressively
modern law.
\61\Id., 41.
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[[Page 76]]
A second theory, formulated even earlier, is that Congress may
legislate contingently, leaving to others the task of ascertaining the
facts that bring its declared policy into operation.\62\
\62\The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813).
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Filling Up the Details.--At issue in Wayman v. Southard\63\ was
the contention that Congress had unconstitutionally delegated power to
the federal courts to establish rules of practice, provided such rules
were not repugnant to the laws of the United States.\64\ Chief Justice
Marshall agreed that the rule-making power was a legislative function
and that Congress could have formulated the rules itself, but he denied
that the delegation was impermissible. Since then, of course, Congress
has authorized the Supreme Court to prescribe rules of procedure for the
lower federal courts.\65\ Filling up the details of statutes was long a
popular version of the nature of permissible delegations.
\63\10 Wheat. (23 U.S.) 1 (1825).
\64\Act of May 8, 1792, Sec. 2, 1 Stat. 275, 276.
\65\The power to promulgate rules of civil procedure was
conferred by the Act of June 19, 1934, 48 Stat. 1064, now 28 U.S.C.
Sec. 2072; the power to promulgate rules of criminal procedure was
conferred by the Act of June 29, 1940, 54 Stat. 688, now 18 U.S.C.
Sec. 3771. In both instances Congress provided for submission of the
rules to it with the power presumably to change or to veto the rules.
Additionally, Congress has occasionally legislated rules itself. E.g.,
82 Stat. 197 (1968), 18 U.S.C. Sec. Sec. 3501-02 (admissibility of
confessions in federal courts).
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Thus, when Congress required the manufacturers of oleomargarine
to have their packages ``marked, stamped and branded as the Commissioner
of Internal Revenue . . . shall prescribe,'' the Court sustained the
conviction of one selling his goods without the markings against his
objection that he was prosecuted not for violation of law but for
violation of a regulation.\66\ ``The criminal offence,'' said Chief
Justice Fuller, ``is fully and completely defined by the act and the
designation by the Commissioner of the particular marks and brands to be
used was a mere matter of detail.''\67\ Kollock was not the first such
case,\68\ but it was to be followed by a multitude of delegations and
the sustaining of them. Soon thereafter the Court on the same theory
upheld an act directing the Secretary of the Treasury to promulgate
minimum standards of quality and purity for tea imported into the United
States.\69\
\66\In re Kollock, 165 U.S. 526 (1897).
\67\Id., 533.
\68\United States v. Bailey, 9 Pet. (34 U.S.) 238 (1835); Caha
v. United States, 152 U.S. 211 (1894).
\69\Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United
States v. Grimaud, 220 U.S. 506 (1911) (executive officials to make
rules governing use of forest reservations); ICC v. Goodrich Transit
Co., 224 U.S. 194 (1912) (prescribing methods of accounting for carriers
in interstate commerce).
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Legislative Powers
Contingent Legislation.--An entirely different problem arises
when, instead of directing another department of govern
[[Page 77]]
ment to apply a general statute to individual cases, or to supplement it
by detailed regulation, Congress commands that a previously enacted
statute be revived, suspended, or modified, or that a new rule be put
into operation, upon the finding of certain facts by an executive or
administrative officer. Since the delegated function in such cases is
not that of ``filling up the details'' of a statute, authority for it
must be sought elsewhere than in the first theory. It is to be found in
an even earlier case, The Brig Aurora,\70\ where the revival of a law
upon the issuance of a presidential proclamation was upheld. After
previous restraints on British shipping had lapsed, Congress passed a
new law stating that those restrictions should be renewed in the event
the President found and proclaimed that France had abandoned certain
practices which violated the neutral commerce of the United States. To
the objection that this was an invalid delegation of legislative power,
the Court answered briefly that ``we can see no sufficient reason, why
the legislature should not exercise its discretion in reviving the act
of March 1st, 1809, either expressly or conditionally, as their judgment
should direct.''\71\
\70\7 Cr. (11 U.S.) 382 (1813).
\71\Id., 388.
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The theory was utilized again in Field v. Clark,\72\ where the
Tariff Act of 1890 was assailed as unconstitutional because it directed
the President to suspend the free importation of enumerated commodities
``for such time as he shall deem just'' if he found that other countries
imposed upon agricultural or other products of the United States duties
or other exactions, which ``he may deem to be reciprocally unequal and
unjust.'' In sustaining this statute the Court relied heavily upon two
factors: (1) legislative precedents, which demonstrated that ``in the
judgment of the legislative branch of the government, it is often
desirable, if not essential, . . . to invest the President with large
discretion in matters arising out of the execution of statutes relating
to trade and commerce with other nations;''\73\ (2) that the act did
``not, in any real sense, invest the President with the power of
legislation. . . . Congress itself prescribed, in advance, the duties to
be levied, . . . while the suspension lasted. Nothing involving the
expediency or the just operation of such legislation was left to the
determination of the President. . . . He had no discretion in the
premises except in respect to the duration of the suspension so
ordered.''\74\ By similar reasoning, the Court sustained the flexible
provisions of the Tariff Act of 1922
[[Page 78]]
whereby duties were increased or decreased to reflect differences in
cost of production at home and abroad, as such differences were
ascertained and proclaimed by the President.\75\
\72\143 U.S. 649 (1892).
\73\Id., 691.
\74\Id., 692, 693.
\75\J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394
(1928).
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The Effective Demise of the Nondelegation Doctrine
``[O]ur jurisprudence has been driven by a practical
understanding that in our increasingly complex society, replete with
ever changing and more technical problems, Congress simply cannot do its
job absent an ability to delegate power under broad general
directives.''\76\ The modern doctrine may be traced in its inception to
the 1928 case in which the Court, speaking through Chief Justice Taft,
upheld congressional delegation to the President of the authority to set
tariff rates that would equalize production costs in the United States
and competing countries.\77\ Although formally looking to the
contingency theory, the Court's opinion also looked forward, emphasizing
that in seeking the cooperation of another branch Congress was
restrained only according to ``common sense and the inherent
necessities'' of the situation.\78\ This vague statement was elaborated
somewhat in the statement that the Court would sustain delegations
whenever Congress provided an ``intelligible principle'' to which the
President or an agency must conform.\79\
\76\Mistretta v. United States, 488 U.S. 361, 372 (1989).
``Delegation by Congress has long been recognized as necessary in order
that the exertion of legislative power does not become a futility.''
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).
\77\J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394
(1928).
\78\Id., 406.
\79\Id., 409. The ``intelligible principle'' test of Hampton is
the same as the ``legislative standards'' test of A. L. A. Schechter
Poultry Corp. v. United States, 295 U.S. 495, 530 (1935), and Panama
Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).
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The Regulatory State.--Except for two Depression-era cases in
which standards were found to be absent, the Court has never voided as
impermissible a congressional delegation.\80\ The now familiar pattern
of regulation of important segments of the economy by boards or
commissions, which combine in varying proportions the functions of all
three departments of government, was first established by the States in
the field of railroad rate regulation. Discovering that direct action
was impracticable, the state legislatures created commissions to deal
with the problem. One of the pioneers in this development was Minnesota,
whose supreme court justified
[[Page 79]]
the practice in an opinion, which, with the implied\81\ and later the
explicit,\82\ endorsement of the United States Supreme Court,
practically settled the law on this point: ``If such a power is to be
exercised at all, it can only be satisfactorily done by a board or
commission, constantly in session, whose time is exclusively given to
the subject, and who, after investigation of the facts, can fix rates
with reference to the peculiar circumstances of each road, and each
particular kind of business, and who can change or modify these rates to
suit the ever-varying conditions of traffic.''\83\ Contemporaneously,
Congress created the Interstate Commerce Commission to regulate the
rates and practices of railroads with respect to interstate commerce.
Although the Supreme Court has never had occasion to render a direct
decision on the delegation of rate-making power to the Commission, it
has repeatedly affirmed rate orders issued by that agency.\84\
\80\See Mistretta v. United States, 488 U.S. 361, 371-379 (1989)
(extensively reviewing doctrinal foundation and case law). See also
Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-224 (1989); Touby
v. United States, 500 U.S. 160, 164-168 (1991).
\81\The Court reversed the decision of the state supreme court
on the grounds that the rates fixed by the commission were not subject
to judicial review, a due process violation, but the opinion implicitly
sanctioned the exercise of ratemaking powers by such bodies. Chicago,
Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418 (1890).
\82\J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409
(1928).
\83\State v. Chicago, Milwaukee & St. Paul Ry. Co., 38 Minn.
288, 301, 37 N.W. 782, 788 (1888), revd, on other grounds, 134 U.S. 418
(1890).
\84\ICC v. Louisville & Nashville R.R., 227 U.S. 88 (1913); New
York v. United States, 331 U.S. 284, 340-350 (1947), and cases cited.
See also New York v. United States, 342 U.S. 882 (1951); American
Trucking Assns. v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967).
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Breathtaking has been the breadth of delegations sustained.
Congress has given the Interstate Commerce Commission the responsibility
to approve railroad consolidations found to be in the ``public
interest,''\85\ and conferred powers on the Federal Radio Commission\86\
and the Federal Communications Commission\87\ to license broadcasting
stations as the ``public convenience, interest and necessity'' may
require. In the field of communications still, the exercise of power by
the FCC, pursuant to statute, to exert jurisdiction and authority over
an industry that did not exist at the time Congress enacted the statute
and that was unforeseen by Congress has been found to be valid.\88\ The
Supreme Court directed a regulatory agency acting under delegated powers
to exercise its own judgment about whether competition or restraint
would be in the
[[Page 80]]
public interest in the communications field rather than to attempt to
extrapolate a principle favoring one or the other from the body of
congressional law.\89\
\85\New York Central Securities Co. v. United States, 287 U.S.
12, 25 (1932).
\86\Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289
U.S. 266 (1933).
\87\National Broadcasting Co. v. United States, 319 U.S. 190
(1943).
\88\United States v. Southwestern Cable Co., 392 U.S. 157 (1968)
(regulation of cable television under the 1934 Communications Act). See
also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (approving
promulgation of rules on the ``fairness doctrine'' and ``right to
reply'' privilege in the absence of congressional enactment).
\89\FCC v. RCA Communications, 346 U.S. 86 (1953).
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The Court has upheld the delegation to the Federal Power
Commission of authority to determine ``just and reasonable'' rates.\90\
Agencies have been held properly to have received power to determine
whether rates and charges were too high or excessive.\91\ Regulation of
corporate conduct has been extended to close supervision of
activity.\92\
\90\FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944).
\91\Yakus v. United States, 321 U.S. 414 (1944) (wartime
delegation to administrator to fix commodity prices that would be fair
and equitable); Lichter v. United States, 334 U.S. 742 (1948) (wartime
delegation to determine excessive profits by defense industries). See
also Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F.Supp.
737 (D.D.C. 1971) (three-judge court) (upholding imposition of
nationwide price and wage controls by President upon general
delegation).
\92\American Light & Power Co. v. SEC, 329 U.S. 90 (1946)
(upholding delegation of authority to Securities and Exchange Commission
to prevent unfair or inequitable distribution of voting power among
security holders).
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In Mistretta v. United States,\93\ the Court approved
congressional delegations to the Sentencing Commission, an independent
agency in the judicial branch, to develop and promulgate guidelines
binding federal judges and cabining their discretion in sentencing
criminal defendants. Although the Court enumerated the standards
Congress had provided, it admitted that significant discretion existed
with respect to making policy judgments about the relative severity of
different crimes and the relative weight of the characteristics of
offenders that are to be considered, but it was forthright in stating
that delegations may carry with them ``the need to exercise judgment on
matters of policy.''\94\
\93\488 U.S. 361 (1989).
\94\Id., 378.
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That this latter observation is indubitably true is revealed in
many case results. Thus, the Court has upheld complex economic
regulations of industries in instances in which the agencies had first
denied possession of such power, had unsuccessfully sought authorization
from Congress, and had finally acted without congressional guidance.\95\
It has also recognized that when Administrations changes, new officials
may have been conferred enough discretion so that they can change agency
policies, often to a considerable degree, so that both previous and
present agency policies may be consistent with congressional
delegations.\96\
\95\E.g., Permian Basin Area Rate Cases, 390 U.S. 747 (1968);
American Trucking Assns. v. Atchison, Topeka & Santa Fe Ry., 387 U.S.
397 (1967).
\96\Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-845, 865-866
(1984) (``[A]n agency to which Congress has delegated policymaking
responsibilities may, within the limits of that delegation, properly
rely upon the incumbent administration's views of wise policy to inform
its judgments.'' Id., 865). See also Motor Vehicle Mfgrs. Assn. v. State
Farm Mutual Automobile Ins. Co., 463 U.S. 29, 42-44, 46-48, 51-57 (1983)
(recognizing agency could have reversed its policy but finding reasons
not supported on record).
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[[Page 81]]
Despite some dicta to the contrary, it appears that there is no
power Congress cannot delegate. ``[A] constitutional power implies a
power of delegation of authority under it sufficient to effect its
purposes.''\97\ Denying that it had ever suggested that the taxing power
was nondelegable, the Court has placed that congressional authority on
the same plane of permissible delegation.\98\ Nor is there a problem
with the fact that in exercising a delegated power the President or
another officer may effectively suspend or rescind a law passed by
Congress. A rule or regulation properly promulgated under authority
received from Congress is law and under the supremacy clause of the
Constitution can preempt state law,\99\ and likewise it can supersede a
federal statute. Early cases sustained giving the President upon the
finding of certain facts to revive or suspend a law,\100\ and the
President's power to raise or lower tariff rates equipped him to alter
statutory law.\101\ Similarly, in Opp Cotton Mills v.
Administrator,\102\ Congress' decision to delegate to the Wage and Hour
Administrator of the Labor Department the authority, after hearings and
findings by an industry committee appointed by him, to establish a
minimum wage in particular industries greater than the statutory minimum
but no higher than a prescribed figure was sustained. Congress has not
often expressly addressed the issue of repeals or supersessions, but in
authorizing the Supreme Court to promulgate rules of civil and criminal
proce
[[Page 82]]
dure and of evidence it directed that such rules supersede previously
enacted statutes with which they conflicted.\103\
\97\Lichter v. United States, 334 U.S. 742, 778-779 (1948).
\98\Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989). In
National Cable Television Ass. v. United States, 415 U.S. 336, 342
(1974), and FPC v. New England Power Co., 415 U.S. 345 (1974), the Court
had appeared to suggest that delegation of the taxing power would be
fraught with constitutional difficulties. How this conclusion could have
been thought viable after the many cases sustaining delegations to fix
tariff rates, which are in fact and law taxes, J. W. Hampton, Jr. & Co.
v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649
(1892); and see FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976)
(delegation to President to raise license ``fees'' on imports when
necessary to protect national security), is difficult to discern. Nor
should doubt exist respecting the appropriations power. See Synar v.
United States, 626 F.Supp. 1374, 1385-1386 (D.D.C.) (three-judge court),
affd. on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).
\99\City of New York v. FCC, 486 U.S. 57, 63-64 (1988);
Louisiana PSC v. FCC, 476 U.S. 355, 368-369 (1986); Fidelity Federal
Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153-154 (1982).
\100\E.g., The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813).
\101\E.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S.
394 (1928); Field v. Clark, 143 U.S. 649 (1892).
\102\312 U.S. 126 (1941).
\103\See 18 U.S.C. Sec. Sec. 3771, 3772 (criminal procedure); 28
U.S.C. Sec. 2072 (civil procedure); id., Sec. 2076 (evidence). In Davis
v. United States, 411 U.S. 233, 241 (1973), the Court referred in
passing to the supersession of statutes without evincing any doubts
about the validity of the results. When Congress amended the Rules
Enabling Acts in the 100th Congress, P.L. 100-702, 102 Stat. 4642, 4648,
amending 28 U.S.C. Sec. 2072, the House would have altered supersession,
the Senate disagreed, the House acquiesced, and the old provision
remained. See H.R. 4807, H.Rept.No. 100-889, 100th Cong., 2d sess.
(1988), 27-29; 134 Cong Rec. 23573-23584 (1988); Id., 31051-31052 (Sen.
Heflin); Id., 31872 (Rep. Kastenmeier).
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Recent concerns in the scholarly literature with respect to the
scope of the delegation doctrine,\104\ have been reflected within the
judicial writings of some of the Justices.\105\ Nonetheless, the Court's
most recent decisions evidence no doubt of the constitutional propriety
of very broad delegations,\106\ and the practice will doubtlessly remain
settled.
\104\E.g., A Symposium on Administrative Law: Part I -
Delegation of Powers to Administrative Agencies, 36 Amer. U. L. Rev. 295
(1987); Schoenbrod, The Delegation Doctrine: Could the Court Give It
Substance?, 83 Mich. L. Rev. 1223 (1985); Aranson, Gellhorn & Robinson,
A Theory of Legislative Delegation, 68 Corn. L. Rev. 1 (1982).
\105\American Textile Mfgrs. Inst. v. Donovan, 452 U.S. 490, 543
(1981) (Chief Justice Burger dissenting); Industrial Union Dept. v.
American Petroleum Inst., 448 U.S. 607, 671 (1980) (then-Justice
Rehnquist concurring). See also United States v. Midwest Video Corp.,
406 U.S. 649, 675, 677 (1972) (Chief Justice Burger concurring, Justice
Douglas dissenting); Arizona v. California, 373 U.S. 546, 625-626 (1963)
(Justice Harlan dissenting in part). Occasionally, statutes are narrowly
construed, purportedly to avoid constitutional problems with
delegations. E.g., Industrial Union Dept., supra, 645-646 (plurality
opinion); National Cable Television Assn. v. United States, 415 U.S.
336, 342 (1974).
\106\E.g., Mistretta v. United States, 488 U.S. 361, 371-379
(1989). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220-
224 (1989); Touby v. United States, 500 U.S. 160, 164-168 (1991). While
expressing considerable reservations about the scope of delegations,
Justice Scalia, in Mistretta, supra, 415-416, conceded both the
inevitability of delegations and the inability of the courts to police
them.
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Standards.--Critical to the Court's explanations of the
permissibility of legislative delegations has been the necessity of
``intelligible principles'' or ``standards'' to guide the agency or
official in the performance of the task Congress has set. And indeed the
only two instances in which the Court has found an unconstitutional
delegation to another governmental agency have involved grants of
discretion to administrators that the Court found to be unbounded. Thus,
in Panama Refining Co. v. Ryan,\107\ the President was authorized to
prohibit the shipment in interstate commerce of ``hot oil''--oil
produced in excess of state quotas. The statute was silent with regard
to when and under what circumstances he should exercise the power and
the Court, only Justice Cardozo dissenting, found that the stated policy
of the legislation contained
[[Page 83]]
contrary directives.\108\ While the grant of power in Panama Refining
was narrow, the grant, in A.L.A. Schechter Poultry Corp. v. United
States,\109\ was sweeping. The National Industrial Recovery Act devolved
on the executive branch the power to formulate codes of ``fair
competition'' for all industry in order to promote ``the policy of this
title.'' The policy was ``to eliminate unfair competitive practices, to
promote the fullest possible utilization of the present productive
capacity of industries, . . . and otherwise to rehabilitate industry.
. . .''\110\ Though much of the opinion is written in terms of the
failure of these policy statements to provide meaningful standards, it
seems more likely the Court was in fact concerned with the ``virtually
unfettered'' discretion conferred on the President of ``enacting laws
for the government of trade and industry throughout the country.''\111\
\107\293 U.S. 388 (1935).
\108\It is not without note that the Court, in the view of many
observers, was influenced heavily by the fact that the President's
orders were nowhere published and notice of regulations bearing criminal
penalties for their violations was spotty at best. Cf. E. Corwin, The
President--Office and Powers 1787-1957 (New York: 4th ed. 1958), 394-
395. The result of the Government's discomfiture in Court was enactment
of the Federal Register Act, 49 Stat. 500 (1935), 44 U.S.C. Sec. 301,
providing for publication of Executive Orders and agency regulations in
the daily Federal Register.
\109\295 U.S. 495 (1935).
\110\48 Stat. 195 (1933), Tit. I, Sec. 1.
\111\295 U.S., 541-542.
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This conclusion is bolstered by the Court's reversal of a lower
federal court, which had literally applied the Schechter language to
void a delegation to the Federal Home Loan Bank Commissioner of power to
issue regulations for the appointment of conservators or receivers to
take charge of banking associations.\112\ The Act contained no
standards, no declarations of policy, no guidance to the Commissioner.
Nevertheless, the Court unanimously sustained the delegation. ``It may
be,'' said Justice Jackson, ``that explicit standards . . . would have
been a desirable assurance of responsible administration.''\113\ But
while desirable, standards were not a constitutional necessity, since
``[t]he provisions are regulatory'' and deal with but one enterprise,
banking, the problems of which are well known and the remedies
authorized are as equally well known. ``A discretion to make regulations
to guide supervisory action in such matters may be constitutionally
permissible while it might not be allowable to authorize creation of new
crimes in uncharted fields.''\114\
\112\Fahey v. Mallonee, 332 U.S. 245 (1947).
\113\Id., 250.
\114\Ibid. Indeed, the Court has frequently deprecated the
broader holdings of the two cases by pointing out that Panama Refining
criminalized acts not previously punishable offenses and that Schechter
involved delegations to private individuals. Mistretta v. United States,
488 U.S. 361, 373 n. 7 (1989).
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[[Page 84]]
Where the Court has determined that standards are necessary, it
has been notably successful in finding them. Standards have been
ascertained to exist in such formulations as ``just and
reasonable,''\115\ ``public interest,''\116\ ``public convenience,
interest, or necessity,''\117\ and ``unfair methods of
competition.''\118\ Thus, in National Broadcasting Co. v. United
States,\119\ the Court found that the discretion conferred on the
Federal Communications Commission to license broadcasting stations to
promote the ``public interest, convenience, or necessity'' conveyed a
standard ``as complete as the complicated factors for judgment in such a
field of delegated authority permit.''\120\ Yet the regulations upheld
were directed to the contractual relations between networks and stations
and were designed to reduce the effect of monopoly in the industry, a
policy on which the statute was silent.\121\
\115\Tagg Bros. & Moorhead v. United States, 280 U.S. 420
(1930).
\116\New York Central Securities Corp. v. United States, 287
U.S. 12 (1932).
\117\Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co.,
289 U.S. 266 (1933).
\118\FTC v. Gratz, 253 U.S. 421 (1920).
\119\319 U.S. 190 (1943).
\120\Id., 216.
\121\Similarly, the promulgation by the FCC of rules creating a
``fairness doctrine'' and a ``right to reply'' rule has been sustained,
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), as well as a rule
requiring the carrying of anti-smoking commercials. Banzhaf v. FCC, 405
F.2d 1082 (D.C.Cir. 1968), cert. den. sub nom., Tobacco Institute v.
FCC, 396 U.S. 842 (1969).
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On the other hand, the standards may be set out in greater
detail and with greater relevancy to the action taken but may in fact
limit discretion not at all. In United States v. Rock Royal Co-
operatives,\122\ the Court sustained the delegation to the Secretary of
Agriculture of the power to fix the prices of six commodities if and
when he chose to exercise the power with regard to all or some of the
commodities. The Act provided that the price to be fixed should afford
farmers purchasing power equivalent to that they had enjoyed in a base
period, but the Secretary was also to protect the interest of the
consumer by a gradual increase in prices in accordance with the public
interest and current consumption. The majority of the Court thought that
the Act stated the purposes which Congress had hoped to achieve and set
out standards by which it hoped the purposes could be realized.
\122\307 U.S. 533 (1939).
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Numerous delegations have been sustained by the Court in both
war and peacetime which have vested in administrative agencies and
executive officers vast powers over the economic life of the
country.\123\ By and large, however, the Court has paid scant atten
[[Page 85]]
tion to delegation as a constitutional issue in these circumstances. An
exception is Arizona v. California,\124\ in which a divided Court
sustained the delegation of total discretion to the Secretary of the
Interior to apportion water among the southwestern States in times of
shortage. The statute prescribed no formula or standards, and the
majority agreed that he was entirely free ``to choose among the
recognized methods of apportionment or to devise reasonable methods of
his own,''\125\ the Secretary being required to reach ``an informed
judgment in harmony with the Act, the best interests of the Basin
States, and the welfare of the Nation.''\126\ Three dissenters noted
they had ``the gravest constitutional doubts'' about the
delegation.\127\
\123\Intermountain Rate Cases, 234 U.S. 476 (1914); American
Trucking Assns. v. United States, 344 U.S. 298 (1953); FCC v. RCA
Communications, 346 U.S. 86 (1953): Yakus v. United States, 321 U.S. 414
(1944). When in the Economic Stabilization Act of 1970, Congress
authorized the President ``to issue such orders and regulations as he
may deem appropriate to stabilize prices, rents, wages, and salaries,''
and the President complied with broad national controls, the lower court
decision sustaining the action was not even appealed to the Supreme
Court. Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F.
Supp. 737 (D.D.C. 1971) (three-judge court).
\124\373 U. S. 546 (1963).
\125\Id., 593.
\126\Id., 594.
\127\Id., 625.
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Administrative implementation of the congressional enactment may
well provide the intelligible standard. Thus, in Lichter v. United
States,\128\ the Court sustained the delegation of power to the War
Department to recover ``excessive profits'' earned on war contracts. The
first Act contained no definition, but the second defined ``excessive
profits'' as meaning ``any amount of a contract or subcontract price
which is found as a result of renegotiation to represent excessive
profits.''\129\ The definition was essayed in the light of standards for
determining ``excessiveness'' worked out by the War Department and in
1944\130\ Congress specifically adopted these standards. Yet, the Court
upheld the validity of the delegation as to proceeds earned prior to
this 1944 adoption. ``The statutory term `excessive profits,' in its
context, was a sufficient expression of legislative policy and standards
to render it constitutional.''\131\
\128\334 U.S. 742 (1948).
\129\Sec. 403(a)(4) of the Act, as added by Tit. 8 of the Act of
October 21, 1942, 56 Stat. 798, 982.
\130\Sec. 403(a)(4) of the Act, as amended by Tit. 7 of the Act
of February 25, 1944, 58 Stat. 21, 78.
\131\334 U.S., 783.
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It seems therefore reasonably clear that the Court does not
really require much in the way of standards from Congress. The minimum
which the Court seems, but only sometimes, to insist on is that Congress
employ a delegation which ``sufficiently marks the
[[Page 86]]
field within which the Administrator is to act so that it may be known
whether he has kept within it in compliance with the legislative
will.''\132\ Where the congressional standards are combined with
requirements of notice and hearing and statements of findings and
considerations by the administrators, so that judicial review under due
process standards is possible, the constitutional requirements of
delegation have been fulfilled.\133\ This requirement may be met through
the provisions of the Administrative Procedure Act,\134\ but where the
Act is inapplicable or where the Court sees the necessity for exceeding
the provisions, due process can supply the safeguards of required
hearing, notice, supporting statements, and the like.\135\
\132\Yakus v. United States, 321 U.S. 414, 425 (1944).
\133\Id., 426; Skinner v. Mid-America Pipeline Co., 490 U.S.
212, 218 (1989); American Power Co. v. SEC, 329 U.S. 90, 107, 108
(1946); Opp Cotton Mills v. Administrator, 312 U.S. 126, 144 (1941). It
should be remembered that the Court has renounced strict review of
economic regulation wholly through legislative enactment, forsaking
substantive due process, so that review of the exercise of delegated
power by the same relaxed standard forwards a consistent policy. E.g.,
Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical Co.,
348 U.S. 483 (1955).
\134\Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. Sec. Sec. 551-
559. In NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), six Justices
agreed that a Board proceeding had been in fact rule-making and not
adjudication and that the APA should have been complied with. The Board
won the particular case, however, because of a coalescence of divergent
views of the Justices, but the Board has since reversed a policy of not
resorting to formal rule-making.
\135\E.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Wisconsin v.
Constantineau, 400 U.S. 433 (1971).
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Foreign Affairs.--That the delegation of discretion in dealing
with foreign relations stands upon a different footing than the transfer
of authority to regulate domestic concerns was indicated in United
States v. Curtiss-Wright Corp.\136\ There the Court upheld a joint
resolution of Congress making it unlawful to sell arms to certain
warring countries upon certain findings by the President, a typically
contingent type of delegation. But Justice Sutherland for the Court
proclaimed that the President was largely free of the constitutional
constraints imposed by the nondelegation doctrine when he acted in
foreign affairs.\137\ The Curtiss-Wright doctrine has waxed and waned
over the years, and the viability of this distinction is doubtful.
\136\299 U.S. 304, 312 (1936).
\137\Id., 319-322. For a particularly strong, recent assertion
of the point, see Haig v. Agee, 453 U.S. 280, 291-292 (1981). This view
also informs the Court's analysis in Dames & Moore v. Regan, 453 U.S.
654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1
(1926).
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Delegations to the States.--From the beginning, Congress enacted
hundreds of statutes that contained provisions authorizing
[[Page 87]]
state officers to enforce and execute federal laws.\138\ Challenges to
the practice were uniformly rejected. While the Court early expressed
its doubt that Congress could compel state officers to act, it
entertained no such thoughts about the propriety of authorizing them to
act if they chose.\139\ When, in the Selective Draft Law Cases,\140\ the
contention was made that the act was invalid because of its delegations
of duties to state officers, the argument was rejected as ``too wanting
in merit to require further notice.'' Congress continues to empower
state officers to act,\141\ and Presidents now object on grounds that
the state officers, not having been appointed pursuant to the
appointments clause, may not execute federal laws, rather than offer
delegation arguments.\142\
\138\See Warren, Federal Criminal Laws and the State Courts, 38
Harv. L. Rev. 545 (1925); Holcomb, The States as Agents of the Nation, 3
Selected Essays on Constitutional Law (1938), 1187.
\139\Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539 (1842);
Kentucky v. Dennison, 24 How. (65 U.S.) 66 (1861). The last doubt as to
compulsion was not definitively removed until Puerto Rico v. Branstad,
483 U.S. 219 (1987).
\140\245 U.S. 366, 389 (1918).
\141\E.g., P.L. 94-435, title III, 90 Stat. 1394, 15 U.S.C.
Sec. 15c (state attorneys general may bring antitrust parens patriae
actions); Medical Waste Tracking Act, P.L. 100-582, 102 Stat. 2955, 42
U.S.C. Sec. 6992f (States may impose civil and possibly criminal
penalties against violators of the law).
\142\See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President
Reagan). The only judicial challenge to such a practice resulted in a
rebuff to the presidential argument. Seattle Master Builders Assn. v.
Pacific Northwest Electric Power & Conservation Planning Council, 786
F.2d 1359 (9th Cir. 1986), cert. den., 479 U.S. 1059 (1987).
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Delegation to Private Persons.--Statutory delegations to private
persons in the nature of contingency legislation have passed Court
tests. Thus, statutes providing that restrictions upon the production or
marketing of agricultural commodities are to become operative only upon
a favorable vote by a prescribed majority of those persons affected have
been upheld.\143\ The rationale of the Court is that such a provision
does not involve any delegation of legislative authority, since Congress
has merely placed a restriction upon its own regulation by withholding
its operation unless it is approved in a referendum.\144\
\143\Currin v. Wallace, 306 U.S. 1 (1939); United States v. Rock
Royal Co-operative, 307 U.S. 533, 577 (1939); Wickard v. Filburn, 317
U.S. 111, 115-116 (1942); United States v. Frame, 885 F.2d 1119 (3d Cir.
1989), cert. den., 493 U.S. 1094 (1990).
\144\Currin v. Wallace, 306 U.S. 1, 15, 16 (1939).
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Less consistency has been displayed with regard to the more
modern delegations. The Schechter case condemned the involvement of
private trade groups in the drawing up of binding codes of competition
in conjunction with governmental agencies.\145\ In
[[Page 88]]
Carter v. Carter Coal Co.,\146\ the Court struck down the Bituminous
Coal Conservation Act in part because the statute penalized persons who
failed to observe minimum wage and maximum hour regulations drawn up by
prescribed majorities of coal producers and coal employees. But earlier
the Court had upheld a statute which delegated to the American Railway
Association, a trade group, the authority to determine the standard
height of draw bars for freight cars and to certify the figure to the
Interstate Commerce Commission, which was required to accept it.\147\
The Court simply cited Buttfield v. Stranahan,\148\ in which it had
sustained a delegation to the Secretary of the Treasury to promulgate
minimum standards of quality and purity for imported tea, as a case
``completely in point'' and resolving the issue without need of further
consideration.\149\ Similarly, the Court had earlier still enforced
statutes that gave legal effect to local customs of miners with respect
to claims on public lands.\150\
\145\A. L. A. Schechter Poultry Corp. v. United States, 295 U.S.
495 (1935). Schechter was predominantly a lack-of-standards case, but
the Court more recently has recurred to the private delegation issue.
Mistretta v. United States, 488 U.S. 361, 373 n. 7 (1989).
\146\298 U.S. 238 (1936). But compare Sunshine Anthracite Coal
Co. v. Adkins, 310 U.S. 381 (1940).
\147\St. Louis, Iron Mt. & Southern Ry. Co. v. Taylor, 210 U.S.
281 (1908).
\148\192 U.S. 470 (1904).
\149\210 U.S., 287.
\150\Jackson v. Roby, 109 U.S. 440 (1883); Erhardt v. Boaro, 113
U.S. 527 (1885); Butte City Water Co. v. Baker, 196 U.S. 119 (1905).
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The issue has remained muddled since Carter Coal, the Court
having had no opportunity to attempt to reconcile the two lines of
cases.\151\
\151\But see Schweiker v. McClure, 456 U.S. 188 (1982) (hearing
officer appointed by private insurance carrier adjudicating Medicare
claims); Association of Amer. Physicians & Surgeons v. Weinberger, 395
F.Supp. 125 (N.D.Ill.) (three-judge court) (delegation to Professional
Standards Review Organization), affd. per curiam, 423 U.S. 975 (1975);
Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir.
1980) (Secretary required to adopt interim OSHA standards produced by
private organization). Again, the Executive Branch objections to these
kinds of delegations have involved appointments clause arguments, see
supra, n.142, rather than delegation issues per se.
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Delegation and Individual Liberties.--It has been argued in
separate opinions by some Justices that delegations by Congress of power
to affect the exercise of ``fundamental freedoms'' by citizens must
particularly be scrutinized to require the exercise of a congressional
judgment about meaningful standards.\152\ The only pronouncement in a
majority opinion, however, is that even with regard to the regulation of
liberty the standards of the delegation ``must be adequate to pass
scrutiny by the accepted tests.''\153\ The
[[Page 89]]
standard practice, indeed, of the majority has been to interpret
narrowly the delegation so as to avoid constitutional problems.\154\
\152\United States v. Robel, 389 U.S. 258, 269 (1967) (Justice
Brennan concurring). The view was specifically rejected by Justices
White and Harlan in dissent, id., 288-289, and ignored by the majority.
\153\Kent v. Dulles, 357 U.S. 116, 129 (1958).
\154\Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith,
390 U.S. 17 (1968). More recently, the Court has eschewed even this
limited mode of construction. Haig v. Agee, 453 U. S. 280 (1981).
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Perhaps refining the delegation doctrine, at least in cases
where Fifth Amendment due process interests are implicated, the Court
held that a government agency charged with the efficient administration
of the executive branch could not assert the broader interests that
Congress or the President might have in barring lawfully resident aliens
from government employment. The agency could assert only its own
interests, and if the action could be justified by other interests the
office with responsibility for promoting those interests must take the
action.\155\
\155\Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5-to-4
decision). The regulation was reissued by the President, E. O. 11935, 3
C.F.R. 146 (1976), reprinted in 5 U.S.C. Sec. 3301 (app.), sustained in
Vergara v. Hampton, 581 F. 2d 1281 (C. A. 7, 1978).
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Punishment of Violations
If Congress so provides, violations of valid administrative
regulations may be punished as crimes.\156\ But the penalties must be
provided in the statute itself; additional punishment cannot be imposed
by administrative action.\157\ In an early case, the Court held that a
section prescribing penalties for any violation of a statute did not
warrant a prosecution for wilful disobedience of regulations authorized
by, and lawfully issued pursuant to, the act.\158\ Without disavowing
this general proposition, the Court, in 1944, upheld a suspension order
issued by the OPA whereby a dealer in fuel oil who had violated
rationing regulations was forbidden to receive or deal in that
commodity.\159\ Although such an order was not explicitly authorized by
statute, it was sustained as being a reasonable measure for effecting a
fair allocation of fuel oil, rather than as a means of punishment of an
offender. In another OPA case, the Court ruled that in a criminal
prosecution, a price regulation was subject to the same rule of strict
construction as a statute, and that omissions from, or indefiniteness
in, such a regulation, could not be cured by the Administrator's
interpretation thereof.\160\
\156\United States v. Grimaud, 220 U.S. 506 (1911). See also
Touby v. United States, 500 U.S. 160 (1991).
\157\L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944).
\158\United States v. Eaton, 144 U.S. 677 (1892).
\159\L.P. Steuart & Bro. v. Bowles, 322 U.S. 398 (1944).
\160\M. Kraus & Bros. v. United States, 327 U.S. 614 (1946).
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Investigatory Power
[[Page 90]]
CONGRESSIONAL INVESTIGATIONS
Source of the Power to Investigate
No provision of the Constitution expressly authorizes either
House of Congress to make investigations and exact testimony to the end
that it may exercise its legislative functions effectively and
advisedly. But such a power had been frequently exercised by the British
Parliament and by the Assemblies of the American Colonies prior to the
adoption of the Constitution.\161\ It was asserted by the House of
Representatives as early as 1792 when it appointed a committee to
investigate the defeat of General St. Clair and his army by the Indians
in the Northwest and empowered it to ``call for such persons, papers,
and records, as may be necessary to assist their inquiries.''\162\
\161\Landis, Constitutional Limitations on the Congressional
Power of Investigation, 40 Harv. L. Rev. 153, 159-166 (1926); M. Dimock,
Congressional Investigating Committees (Baltimore: 1929), ch. 2.
\162\3 Annals of Congress 490-494 (1792); 3 A. Hinds' Precedents
of the House of Representatives (Washington: 1907), 1725.
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The Court has long since accorded its agreement with Congress
that the investigatory power is so essential to the legislative function
as to be implied from the general vesting of legislative power in
Congress. ``We are of the opinion,'' wrote Justice Van Devanter, for a
unanimous Court, ``that the power of inquiry--with process to enforce
it--is an essential and appropriate auxiliary to the legislative
function. . . . A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions
which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information--
which not infrequently is true--recourse must be had to others who
possess it. Experience has taught that mere requests for such
information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of
compulsion are essential to obtain what is needed. All this was true
before and when the Constitution was framed and adopted. In that period
the power of inquiry--with enforcing process--was regarded and employed
as a necessary and appropriate attribute of the power to legislate--
indeed, was treated as inhering in it. Thus there is ample warrant for
thinking, as we do, that the constitutional provisions which commit the
legislative function to the two houses are intended to include this
attribute to the end that the function may be effectively
exercised.''\163\
\163\McGrain v. Daugherty, 273 U.S. 135, 174-175 (1927).
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And in a 1957 opinion generally hostile to the exercise of the
investigatory power in the post-War years, Chief Justice Warren
[[Page 91]]
did not question the basic power. ``The power of the Congress to conduct
investigations is inherent in the legislative process. That power is
broad. It encompasses inquiries concerning the administration of
existing laws as well as proposed or possibly needed statutes. It
includes surveys of defects in our social, economic or political system
for the purpose of enabling the Congress to remedy them. It comprehends
probes into departments of the Federal Government to expose corruption,
inefficiency or waste.''\164\ Justice Harlan summarized the matter in
1959. ``The power of inquiry has been employed by Congress throughout
our history, over the whole range of the national interests concerning
which Congress might legislate or decide upon due investigation not to
legislate; it has similarly been utilized in determining what to
appropriate from the national purse, or whether to appropriate. The
scope of the power of inquiry, in short, is as penetrating and far-
reaching as the potential power to enact and appropriate under the
Constitution.''\165\
\164\Watkins v. United States, 354 U.S. 178, 187 (1957).
\165\Barenblatt v. United States, 360 U.S. 109, 111 (1959). See
also Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503-507
(1975).
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Broad as the power of inquiry is, it is not unlimited. The power
of investigation may properly be employed only ``in aid of the
legislative function.''\166\ Its outermost boundaries are marked, then,
by the outermost boundaries of the power to legislate. In principle, the
Court is clear on the limitations, clear ``that neither house of
Congress possesses a `general power of making inquiry into the private
affairs of the citizen'; that the power actually possessed is limited to
inquiries relating to matters of which the particular house `has
jurisdiction' and in respect of which it rightfully may take other
action; that if the inquiry relates to `a matter wherein relief or
redress could be had only by a judicial proceeding' it is not within the
range of this power, but must be left to the courts, conformably to the
constitutional separation of governmental powers; and that for the
purpose of determining the essential character of the inquiry recourse
must be had to the resolution or order under which it is made.''\167\
\166\Kilbourn v. Thompson, 103 U.S. 168, 189 (1881).
\167\McGrain v. Daugherty, 273 U.S. 135, 170 (1927). The
internal quotations are from Kilbourn v. Thompson, 103 U.S. 168, 190,
193 (1881).
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In practice, much of the litigated dispute has been about the
reach of the power to inquire into the activities of private citizens;
inquiry into the administration of laws and departmental corruption,
while of substantial political consequence, has given rise to fewer
judicial precedents.
[[Page 92]]
Investigations of Conduct of Executive Department
For many years the investigating function of Congress was
limited to inquiries into the administration of the Executive Department
or of instrumentalities of the Government. Until the administration of
Andrew Jackson, this power was not seriously challenged.\168\ During the
controversy over renewal of the charter of the Bank of the United
States, John Quincy Adams contended that an unlimited inquiry into the
operations of the bank would be beyond the power of the House.\169\ Four
years later, the legislative power of investigation was challenged by
the President. A committee appointed by the House of Representatives
``with power to send for persons and papers, and with instructions to
inquire into the condition of the various executive departments, the
ability and integrity with which they have been conducted, . . .''\170\
called upon the President and the heads of departments for lists of
persons appointed without the consent of the Senate and the amounts paid
to them. Resentful of this attempt ``to invade the just rights of the
Executive Departments,'' the President refused to comply and the
majority of the committee acquiesced.\171\ Nevertheless, congressional
investigations of Executive Departments have continued to the present
day. Shortly before the Civil War, contempt proceedings against a
witness who refused to testify in an investigation of John Brown's raid
upon the arsenal at Harper's Ferry occasioned a thorough consideration
by the Senate of the basis of this power. After a protracted debate,
which cut sharply across sectional and party lines, the Senate voted
overwhelmingly to imprison the contumacious witness.\172\
Notwithstanding this firmly established legislative practice, the
Supreme Court took a narrow view of the power in the case of Kilbourn v.
Thompson.\173\ It held that the House of Representatives had overstepped
its jurisdiction when it instituted an investigation of losses suffered
by the United States as a creditor of Jay Cooke and Company, whose
estate was being administered in bankruptcy by a federal court.\174\ But
nearly half
[[Page 93]]
a century later, in McGrain v. Daugherty,\175\ it ratified in sweeping
terms, the power of Congress to inquire into the administration of an
executive department and to sift charges of malfeasance in such
administration.\176\
\168\In 1800, Secretary of the Treasury, Oliver Wolcott, Jr.,
addressed a letter to the House of Representatives advising them of his
resignation from office and inviting an investigation of his office.
Such an inquiry was made. 10 Annals of Congress 786-788 (1800).
\169\8 Cong. Deb. 2160 (1832).
\170\13 Cong. Deb. 1057-1067 (1836).
\171\H.R. Rep. No. 194, 24th Congress, 2d sess., 1, 12, 31
(1837).
\172\Cong. Globe, 36th Congress, 1st sess., 1100-1109 (1860).
\173\103 U.S. 168 (1881).
\174\The Court held that inasmuch as the entire proceedings
arising out of the bankruptcy were pending in court, as the authorizing
resolution contained no suggestion of contemplated legislation, as in
fact no valid legislation could be enacted on the subject, and as the
only relief which the United States could seek was judicial relief in
the bankruptcy proceeding, the House had exceeded its powers in
authorizing the inquiry. But see Hutcheson v. United States, 369 U.S.
599 (1962).
\175\273 U.S. 135, 177, 178 (1927).
\176\We consider elsewhere the topic of executive privilege, the
claimed right of the President and at least some of his executive branch
officers to withhold from Congress information desired by it or by one
of its committees. Although the issue has been one of contention between
the two branches of Government since Washington's refusal in 1796 to
submit certain correspondence to the House of Representatives relating
to treaty negotiations, it has only recently become a judicial issue.
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Investigations of Members of Congress
When either House exercises a judicial function, as in judging
of elections or determining whether a member should be expelled, it is
clearly entitled to compel the attendance of witnesses to disclose the
facts upon which its action must be based. Thus, the Court held that
since a House had a right to expel a member for any offense which it
deemed incompatible with his trust and duty as a member, it was entitled
to investigate such conduct and to summon private individuals to give
testimony concerning it.\177\ The decision in Barry v. United States ex
rel. Cunningham\178\ sanctioned the exercise of a similar power in
investigating a senatorial election.
\177\In re Chapman, 166 U.S. 661 (1897).
\178\279 U.S. 597 (1929).
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Investigations in Aid of Legislation
Purpose.--Beginning with the resolution adopted by the House of
Representatives in 1827, which vested its Committee on Manufactures
``with the power to send for persons and papers with a view to ascertain
and report to this House in relation to a revision of the tariff duties
on imported goods,''\179\ the two Houses have asserted the right to
collect information from private persons as well as from governmental
agencies when necessary to enlighten their judgment on proposed
legislation. The first case to review the assertion saw a narrow view of
the power taken and the Court held that the purpose of the inquiry was
to pry improperly into private affairs without any possibility of
legislating on the basis of what might be learned and further that the
inquiry overstepped the bounds of legislative jurisdiction and invaded
the provinces of the judiciary.\180\
\179\4 Cong. Deb. 862, 868, 888, 889 (1827).
\180\Kilbourn v. Thompson, 103 U.S. 168 (1881).
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[[Page 94]]
Subsequent cases, however, have given the Congress the benefit
of a presumption that its object is legitimate and related to the
possible enactment of legislation. Shortly after Kilbourn, the Court
declared that ``it was certainly not necessary that the resolution
should declare in advance what the Senate meditated doing when the
investigation was concluded'' in order that the inquiry be under a
lawful exercise of power.\181\ Similarly, in McGrain v. Daugherty,\182\
the investigation was presumed to have been undertaken in good faith to
aid the Senate in legislating. Then, in Sinclair v. United States,\183\
on its facts presenting a close parallel to Kilbourn, the Court affirmed
the right of the Senate to carry out investigations of fraudulent leases
of government property after suit for recovery had been instituted. The
president of the lessee corporation had refused to testify on the ground
that the questions related to his private affairs and to matters
cognizable only in the courts wherein they were pending, asserting that
the inquiry was not actually in aid of legislation. The Senate had
prudently directed the investigating committee to ascertain what, if
any, legislation might be advisable. Conceding ``that Congress is
without authority to compel disclosures for the purpose of aiding the
prosecution of pending suits,'' the Court declared that the authority
``to require pertinent disclosures in aid of its own constitutional
power is not abridged because the information sought to be elicited may
also be of use in such suits.''\184\
\181\In re Chapman, 166 U.S. 661, 670 (1897).
\182\273 U.S. 135, 178 (1927).
\183\279 U.S. 263 (1929).
\184\Id., 295.
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While Sinclair and McGrain involved inquiries into the
activities and dealings of private persons, these activities and
dealings were in connection with property belonging to the United States
Government, so that it could hardly be said that the inquiries concerned
the merely personal or private affairs of any individual.\185\ But where
the business, the activities and conduct, the behavior of individuals
are subject to congressional regulation, there exists the power of
inquiry,\186\ and in practice the areas of any individual's life immune
from inquiry are probably fairly limited. ``In the decade following
World War II, there appeared a new kind of congressional inquiry unknown
in prior periods of American history. Principally this was the result of
the various investigations into the threat of subversion of the United
States Government, but other
[[Page 95]]
subjects of congressional interest also contributed to the changed
scene. This new phase of legislative inquiry involved a broad-scale
intrusion into the lives and affairs of private citizens.''\187\Inasmuch
as Congress clearly has power to legislate to protect the Nation and its
citizens from subversion, espionage, and sedition,\188\ it has power to
inquire into the existence of the dangers of domestic or foreign-based
subversive activities in many areas of American life--in education,\189\
in labor and industry,\190\ and other areas.\191\ Because its powers to
regulate interstate commerce afford Congress the power to regulate
corruption in labor-management relations, congressional committees may
inquire into the extent of corruption in labor unions.\192\ Because of
its powers to legislate to protect the civil rights of its citizens,
Congress may investigate organizations which allegedly a |