Constitutional Law 10thED

Constitutional Law for a
Changing America
10th Edition
Constitutional Law for a
Changing America
Institutional Powers and
Constraints
10th Edition
Lee Epstein
Washington University in St. Louis
Thomas G. Walker
Emory University
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Printed in the United States of America Library of Congress
Cataloging-in-Publication Data Names: Epstein, Lee,
author. | Walker, Thomas G., author.
Title: Constitutional law for a changing America :

institutional powers and constraints / Lee Epstein,
Washington University in St. Louis, USA; Thomas G.
Walker, Emory University, USA.
Other titles: Institutional powers and constraints

Description: 10th edition. | Washington, D.C.: CQ Press, an
imprint of SAGE Publications, Inc., [2020] | Includes
bibliographical references and index.
Identifiers: LCCN 2018043958 | ISBN 9781544317908

(pbk.) Subjects: LCSH: Constitutional law—United States.
Classification: LCC KF4550 .E67 2020 | DDC 342.73—dc23
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Erica DeLuca
Contents
Chronological Table of Cases

Tables, Figures, and Boxes
Preface
About the Authors
PART I • THE U.S. CONSTITUTION
An Introduction to the U.S. Constitution
The Road to the U.S. Constitution

Underlying Principles of the Constitution
CHAPTER 1 • Understanding the U.S. Supreme
Court
Processing Supreme Court Cases

Supreme Court Decision Making: Legalism
Supreme Court Decision Making: Realism
Conducting Research on the Supreme
Court
ANNOTATED READINGS
PART II • INSTITUTIONAL AUTHORITY
Structuring the Federal System
Origins of the Separation of Powers/Checks

and Balances System
Separation of Powers and the Constitution
Contemporary Thinking on the
Constitutional Scheme
CHAPTER 2 • The Judiciary
Establishment of the Federal Judiciary

Judicial Review
Marbury v. Madison (1803)

Martin v. Hunter’s Lessee (1816)
Eakin v. Raub (1825)
Constraints on Judicial Power: Article III
Ex parte McCardle (1869)

Patchak v. Zinke (2018)
Baker v. Carr (1962)
Nixon v. United States (1993)
Flast v. Cohen (1968)
Constraints on Judicial Power and the
Separation of Powers System
ANNOTATED READINGS
CHAPTER 3 • The Legislature
Article I: Historical Overview

Congressional Authority over Internal
Affairs: Institutional Independence and
Integrity
Powell v. McCormack (1969)

U.S. Term Limits, Inc. v. Thornton
(1995)
Gravel v. United States (1972)
Legislative Powers: Sources and Scope
McCulloch v. Maryland (1819)
McGrain v. Daugherty (1927)
Watkins v. United States (1957)
Barenblatt v. United States (1959)
South Carolina v. Katzenbach (1966)
Federal Legislature: Constitutional
Interpretations
ANNOTATED READINGS
CHAPTER 4 • The Executive
The Structure of the Presidency
Bush v. Gore (2000)

The President’s Constitutional Authority
and Tools for Executing It
The Faithful Execution of the Laws:
Defining the Contours of Presidential Power
In re Neagle (1890)
Domestic Powers of the President
Clinton v. City of New York (1998)

Morrison v. Olson (1988)
National Labor Relations Board v. Noel
Canning (2014)
Myers v. United States (1926)
Humphrey’s Executor v. United States
(1935)
United States v. Nixon (1974)
Mississippi v. Johnson (1867)
Nixon v. Fitzgerald (1982)
Clinton v. Jones (1997)
Ex parte Grossman (1925)
Murphy v. Ford (1975)
The Role of the President in External
Relations
ANNOTATED READINGS
CHAPTER 5 • Interbranch Interactions
Debates over Interbranch Interactions

Domestic Powers
Mistretta v. United States (1989)

Immigration and Naturalization Service
v. Chadha (1983)
Bowsher v. Synar (1986)
Powers over Foreign Affairs
Prize Cases (1863)

Ex parte Milligan (1866)
Korematsu v. United States (1944)
Youngstown Sheet & Tube Co. v. Sawyer
(1952)
Dames & Moore v. Regan (1981)
Zivotofsky v. Kerry, Secretary of State
(2015)
Hamdi v. Rumsfeld (2004)
ANNOTATED READINGS
PART III • NATION–STATE RELATIONS
Allocating Government Power
The Framers and Federalism

The Tenth and Eleventh Amendments
CHAPTER 6 • Federalism
The Doctrinal Cycle of Nation–State

Relations

Scott v. Sandford (1857)
Coyle v. Smith (1911)
Garcia v. San Antonio Metropolitan
Transit Authority (1985)
New York v. United States (1992)
Printz v. United States (1997)
Murphy v. National Collegiate Athletic
Association (2018)
The Eleventh Amendment and Sovereign
Immunity
Alden v. Maine (1999)

National Preemption of State Laws
State of Missouri v. Holland (1920)

Crosby v. National Foreign Trade
Council (2000)
Arizona v. United States (2012)
ANNOTATED READINGS
CHAPTER 7 • The Commerce Power
Foundations of the Commerce Power
Gibbons v. Ogden (1824)

Attempts to Define the Commerce Power in
the Wake of the Industrial Revolution
United States v. E. C. Knight Co. (1895)
Stafford v. Wallace (1922)
Champion v. Ames (1903)
Hammer v. Dagenhart (1918)
The Supreme Court and the New Deal
A. L. A. Schechter Poultry Corp. v.

United States (1935)
National Labor Relations Board v. Jones
& Laughlin Steel Corporation (1937)
United States v. Darby (1941)
Wickard v. Filburn (1942)
The Era of Expansive Commerce Clause
Jurisprudence
Heart of Atlanta Motel, Inc. v. United

States (1964)
Limits on the Commerce Power: The
Republican Court Era
United States v. Lopez (1995)

United States v. Morrison (2000)
Gonzales v. Raich (2005)
National Federation of Independent
Business v. Sebelius (2012)
Commerce Power of the States
Cooley v. Board of Wardens (1852)

Southern Pacific Company v. Arizona
(1945)
Hunt v. Washington State Apple
Advertising Commission (1977)
Maine v. Taylor (1986)
Granholm v. Heald (2005)
ANNOTATED READINGS
CHAPTER 8 • The Power to Tax and Spend
The Constitutional Power to Tax and Spend

Direct Taxes and the Power to Tax Income
Pollock v. Farmers’ Loan & Trust Co.

(1895)
Taxation of Exports
United States v. United States Shoe

Corp. (1998)
Intergovernmental Tax Immunity
South Carolina v. Baker (1988)

Davis v. Michigan Dept. of Treasury
(1989)
Taxation as a Regulatory Power
McCray v. United States (1904)

Bailey v. Drexel Furniture Co. (1922)
Taxing and Spending for the General
Welfare
United States v. Butler (1936)

Steward Machine Co. v. Davis (1937)
South Dakota v. Dole (1987)
Business v. Sebelius (2012)
Restrictions on the Revenue Powers of the
States
Michelin Tire Corp. v. Wages (1976)
Complete Auto Transit v. Brady (1977)
South Dakota v. Wayfair (2018)
Oregon Waste Systems, Inc. v.
Department of Environmental Quality
of Oregon (1994)
ANNOTATED READINGS
PART IV • ECONOMIC LIBERTIES
Economic Liberties and Individual Rights

CHAPTER 9 • The Contract Clause
The Framers and the Contract Clause

John Marshall and the Contract Clause
Fletcher v. Peck (1810)

Trustees of Dartmouth College v.
Woodward (1819)
Decline of the Contract Clause: From the
Taney Court to the New Deal
Proprietors of Charles River Bridge v.

Proprietors of Warren Bridge (1837)
Stone v. Mississippi (1880)
Home Building & Loan Assn. v. Blaisdell
(1934)
Modern Applications of the Contract Clause
Sveen v. Melin (2018)

ANNOTATED READINGS
CHAPTER 10 • Economic Substantive Due
Process
Development of Substantive Due Process
The Slaughterhouse Cases (1873)

Munn v. Illinois (1877)
Allgeyer v. Louisiana (1897)
The Roller-Coaster Ride of Substantive Due
Process: 1898–1923
Lochner v. New York (1905)

Muller v. Oregon (1908)
The Heyday of Substantive Due Process:
1923–1936
Adkins v. Children’s Hospital (1923)

The Depression, the New Deal, and the
Decline of Economic Substantive Due
Process
Nebbia v. New York (1934)

West Coast Hotel v. Parrish (1937)
Williamson v. Lee Optical Company
(1955)
Substantive Due Process: Contemporary
Relevance
BMW of North America v. Gore (1996)

Caperton v. A. T. Massey Coal Co.
(2009)
ANNOTATED READINGS
CHAPTER 11 • The Takings Clause
Protecting Private Property from

Government Seizure
What Is a Taking?
United States v. Causby (1946)

Penn Central Transportation Company
v. City of New York (1978)
Nollan v. California Coastal Commission
(1987)
Lucas v. South Carolina Coastal Council
(1992)
Horne v. Department of Agriculture
(2015)
What Constitutes a Public Use?
Berman v. Parker (1954)

Hawaii Housing Authority v. Midkiff
(1984)
Kelo v. City of New London (2005)
ANNOTATED READINGS
Reference Material
Constitution of the United States
The Justices
Glossary
Online Case Archive Index
Case Index
Subject Index
Chronological Table of Cases
The Marshall Court (1801–1835)
Marbury v. Madison (1803) 61
Fletcher v. Peck (1810) 589
Martin v. Hunter’s Lessee (1816) 70
Trustees of Dartmouth College v. Woodward
(1819) 594
McCulloch v. Maryland (1819) 144, 344
Gibbons v. Ogden (1824) 407
Eakin v. Raub (1825) 78
Taney and Civil War Courts (1836–1888)
Proprietors of Warren Bridge (1837) 600
Cooley v. Board of Wardens (1852) 496
Scott v. Sandford (1857) 350
The Prize Cases (1863) 287
Ex parte Milligan (1866) 290
Mississippi v. Johnson (1867) 242
Ex parte McCardle (1869) 85
The Slaughterhouse Cases (1873) 620
Munn v. Illinois (1877) 626
Stone v. Mississippi (1880) 605
Conservative Court Eras (1889–1937)
In re Neagle (1890) 202
United States v. E. C. Knight Co. (1895) 413
Pollock v. Farmers’ Loan & Trust Co. (1895)
519
Allgeyer v. Louisiana (1897) 632
Champion v. Ames (1903) 422
McCray v. United States (1904) 536
Lochner v. New York (1905) 635
Muller v. Oregon (1908) 641
Coyle v. Smith (1911) 356
Hammer v. Dagenhart (1918) 425
State of Missouri v. Holland (1920) 389
Stafford v. Wallace (1922) 418
Bailey v. Drexel Furniture Co. (1922) 539
Adkins v. Children’s Hospital (1923) 647
Ex parte Grossman (1925) 255
Myers v. United States (1926) 227
McGrain v. Daugherty (1927) 155
Home Building & Loan Assn. v. Blaisdell (1934)
608
Nebbia v. New York (1934) 651
A. L. A. Schechter Poultry Corp. v. United
States (1935) 433
Humphrey’s Executor v. United States (1935)
232
United States v. Butler (1936) 543
Roosevelt and World War II Court Eras
(1937–1953)
West Coast Hotel v. Parrish (1937) 656
National Labor Relations Board v. Jones &
Laughlin Steel Corporation (1937) 443
Steward Machine Co. v. Davis (1937) 548
United States v. Darby (1941) 450
Wickard v. Filburn (1942) 454
Korematsu v. United States (1944) 297
Southern Pacific Company v. Arizona (1945)
500
United States v. Causby (1946) 679
Youngstown Sheet & Tube Co. v. Sawyer
(1952) 305
The Warren Court Era (1953–1969)
Berman v. Parker (1954) 700
Williamson v. Lee Optical Company (1955) 660
Watkins v. United States (1957) 159
Barenblatt v. United States (1959) 165
Baker v. Carr (1962) 96
Heart of Atlanta Motel, Inc. v. United States
(1964) 458
South Carolina v. Katzenbach (1966) 171
Flast v. Cohen (1968) 111
Powell v. McCormack (1969) 125
Republican Court Eras (1969–)
Gravel v. United States (1972) 137
United States v. Nixon (1974) 237
Murphy v. Ford (1975) 259
Michelin Tire Corp. v. Wages (1976) 565
Complete Auto Transit v. Brady (1977) 568
Hunt v. Washington State Apple Advertising
Commission (1977) 504
Penn Central Transportation Company v. City
of New York (1978) 682
Dames & Moore v. Regan (1981) 311
Nixon v. Fitzgerald (1982) 245
Immigration and Naturalization Service v.
Chadha (1983) 275
Hawaii Housing Authority v. Midkiff (1984) 702
Garcia v. San Antonio Metropolitan Transit
Authority (1985) 362
Maine v. Taylor (1986) 507
Bowsher v. Synar (1986) 280
South Dakota v. Dole (1987) 552
Nollan v. California Coastal Commission (1987)
687
South Carolina v. Baker (1988) 529
Morrison v. Olson (1988) 215
Mistretta v. United States (1989) 270
Davis v. Michigan Dept. of Treasury (1989) 532
New York v. United States (1992) 367
Lucas v. South Carolina Coastal Council (1992)
690
Nixon v. United States (1993) 103
Oregon Waste Systems, Inc. v. Department of
Environmental Quality of Oregon (1994) 578
United States v. Lopez (1995) 464
U.S. Term Limits, Inc. v. Thornton (1995) 129
BMW of North America v. Gore (1996) 662
Clinton v. Jones (1997) 249
Printz v. United States (1997) 373
United States v. United States Shoe Corp.
(1998) 525
Clinton v. City of New York (1998) 209
Alden v. Maine (1999) 384
United States v. Morrison (2000) 471
Crosby v. National Foreign Trade Council
(2000) 391
Bush v. Gore (2000) 184
Hamdi v. Rumsfeld (2004) 325
Granholm v. Heald (2005) 511
Gonzales v. Raich (2005) 478
Kelo v. City of New London (2005) 706
Caperton v. A. T. Massey Coal Co. (2009) 667
Arizona v. United States (2012) 399
National Federation of Independent Business
v. Sebelius (2012) 485, 556
Canning (2014) 221
Zivotofsky v. Kerry, Secretary of State (2015)
313
Horne v. Department of Agriculture (2015) 695
Patchak v. Zinke (2018) 89
Association (2018) 380
Sveen v. Melin (2018) 613
South Dakota v. Wayfair (2018) 572
Tables, Figures, and Boxes
Part I
Figure I-1 The Structure and Powers of
Government under the Articles of
Confederation 3
Table I-1 The Virginia Plan, the New
Jersey Plan, and the Constitution 5
Figure I-2 The Separation of Powers/Checks
and Balances System: Some Examples 7
Chapter 1
Figure 1-1 The Processing of Cases 11
Figure 1-2 The American Court System 13
Box 1-1 The American Legal System in Global
Perspective 14
Figure 1-3 A Page from Justice Blackmun’s
Docket Books 16
Box 1-2 The Amicus Curiae Brief 18
Table 1-1 Methods of Constitutional
Interpretation as Applied to the Issue of State-
Imposed Congressional Term Limits 23
Table 1-2 Precedents Overruled in Orally
Argued Cases, 1953–2017 Terms 31
Figure 1-4 Percentage of Cases in Which
Each Chief Justice Voted in the Liberal
Direction, 1953–2017 Terms 34
Figure 1-5 Court Decisions on Economics
and Civil Liberties, 1953–2017 Terms 35
Table 1-3 Percentage of Votes to Declare
Legislation Unconstitutional, 2005–2017 Terms
37
Table 1-4 Reporting Systems 43
Part II
Figure II-1 The Supreme Court as a
Strategic National Policy Maker 52
Chapter 2
Table 2-1 Presidential Nominees to the
Supreme Court Rejected by the Senate 57
Box 2-1 Jurisdiction of the Federal Courts as
Defined in Article III 58
Figure 2-1 The Federal Court System under
the Judiciary Act of 1789 59
Box 2-2 Aftermath . . . Marbury v. Madison 69
Box 2-3 Judicial Review in Global Perspective
84
Table 2-2 A Sample of Congressional
Proposals Aimed at Limiting or Eliminating the
U.S. Supreme Court’s Appellate Jurisdiction in
the Wake of Controversial Constitutional
Decisions 88
Figure 2-2 Maps of Districts in Tennessee,
1901 and 1950 97
Box 2-4 Aftermath . . . Walter Nixon 109
Box 2-5 Justice Brandeis, Concurring in
Ashwander v. Tennessee Valley Authority 117
Chapter 3
Table 3-1 U.S. Supreme Court Justices
Who Served in the U.S. Congress or in State
Legislatures 123
Table 3-2 Duly Elected Members of
Congress Excluded 125
Box 3-1 Aftermath . . . Adam Clayton Powell
Jr. 130
Box 3-2 Privileges and Immunities for
Legislators in Global Perspective 136
Box 3-3 Aftermath . . . Mike Gravel 141
Table 3-3 Speech or Debate Clause Cases
after Gravel v. United States 142
Table 3-4 Sources of Congressional Power
143
Box 3-4 Jefferson and Hamilton on the Bank
of the United States 145
Figure 3-1 The History of the First and
Second Banks of the United States 147
Box 3-5 Aftermath . . . James McCulloch and
the Second National Bank 153
Box 3-6 Investigations of “Un-Americanism”
160
Table 3-5 White and Nonwhite Voter
Registration Statistics, 1960, 1964, 1970,
2000 170
Chapter 4
Box 4-1 The American Presidency in Global
Perspective 182
Box 4-2 Aftermath . . . Bush v. Gore 191
Box 4-3 Line of Succession 195
Box 4-4 Aftermath . . . Clinton v. Jones 254
Box 4-5 Nixon Pardon Proclamation 258
Chapter 5
Box 5-1 The Court’s Decisions in Panama and
Schechter Poultry 268
Table 5-1 Powers Delegated by Congress
to Select Agencies 269
Box 5-2 Aftermath . . . Lambdin P. Milligan
296
Box 5-3 Aftermath . . . Fred Korematsu 304
Box 5-4 The War against Terrorism in Global
Perspective 322
Table 5-2 Cases Growing Out of the War
on Terrorism 324
Part III
Table III-1 The Constitutional Allocation
of Government Power 337
Chapter 6
Table 6-1 A Comparison of Dual and
Cooperative Federalism 342
Table 6-2 Doctrinal Cycles of Nation–
State Relations 343
Box 6-1 Federalism and Judicial Power in
Global Perspective 343
Table 6-3 Selected Events Leading to the
Civil War 348
Table 6-4 From the Marshall Court to the
Taney Court: Personnel and Partisan Changes
349
Table 6-5 Examples of Domestic Policy
Preemption Decisions 397
Chapter 7
Box 7-1 Aftermath . . . Reuben Dagenhart
428
Figure 7-1 The Great Depression and
Political Change 430
Box 7-2 New Deal Legislation 431
Box 7-3 The Four Horsemen 431
Box 7-4 The Supreme Court and the New
Deal 432
Figure 7-2 Public Support for Roosevelt’s
1937 Court-Packing Plan 440
Box 7-5 Excerpts from the White House
Broadcast, March 9, 1937 441
Box 7-6 Supreme Court Expansion of the
Commerce Powers, 1937–1942 450
Box 7-7 Aftermath . . . Heart of Atlanta Motel
462
Table 7-1 Support for Expansive Federal
Commerce Power in Key Cases after Garcia
464
Box 7-8 Aftermath . . . United States v.
Morrison 476
Box 7-9 Evolution of Interstate Commerce
Doctrine 477
Box 7-10 Examples of Supreme Court
Decisions Striking Down State and Local
Restrictions on Interstate Commerce 508
Chapter 8
Box 8-1 Direct and Indirect Taxes:
Apportionment versus Geographical
Uniformity 518
Table 8-1 Federal Tax Revenues: The
Impact of the Sixteenth Amendment 525
Chapter 9
Box 9-1 Aftermath . . . The Yazoo Lands
Controversy 593
Box 9-2 Daniel Webster 601
Chapter 10
Table 10-1 The Legal Tools of the Laissez-
Faire Courts, 1890s to 1930s: Some Examples
618
Box 10-1 The Brandeis Brief 643
Table 10-2 The Supreme Court: From
Bunting to Adkins 651
Box 10-2 Aftermath . . . Don Blankenship and
Massey Coal 673
Chapter 11
Box 11-1 Aftermath . . . Lucas v. South
Carolina Coastal Council 695
Box 11-2 Aftermath . . . Kelo v. City of New
London 712
Preface
THREE DECADES HAVE passed since Constitutional

Law for a Changing America: Institutional Powers
and Constraints made its debut in a discipline
already supplied with many fine casebooks by law
professors, historians, and social scientists. We
believed then, as we do now, that there was a need
for a fresh approach because, as political scientists
who regularly teach courses on public law and as
scholars concerned with the judicial process, we saw
a growing disparity between what we taught and
what our research taught us.
We had adopted books for our classes that focused

primarily on Supreme Court decisions and how the
Court applied the resulting legal precedents to
subsequent disputes, but as scholars we understood
that to know the law is to know only part of the story.
A host of political factors—both internal and external
—influence the Court’s decisions and shape the
development of constitutional law. Among the more
significant forces at work are the ways lawyers and
interest groups frame legal disputes, the ideological
and behavioral propensities of the justices, the
politics of judicial selection, public opinion, and the
positions that elected officials take, to name just a
few.
Because we thought no existing book adequately
combined the lessons of the legal model with the
influences of the political process, we wrote one. In
most respects, our book follows tradition: readers
will find that we include excerpts from the classic
cases that best illustrate the development of
constitutional law. But our focus is different, as is the
appearance of this volume. We emphasize the
arguments raised by lawyers and interest groups
and the politics surrounding litigation. We
incorporate tables and figures on Court trends and
other materials that bring out the rich legal, social,
historical, economic, and political contexts in which
the Court reaches its decisions. As a result, students
and instructors will find this work both similar to
and different from casebooks they may have read
before.
Integrating traditional teaching and research

concerns was only one of our goals. Another was to
animate the subject of constitutional law. As
instructors, we find our subject inherently
interesting—to us, con law is exciting stuff. Many
books on the subject, however, could not be less
inviting in design, presentation, or prose. That kind
of book can only dampen enthusiasm. We have
written a book that we hope mirrors the excitement
we feel for our subject. We describe the events that
led to the suits and include photographs of litigants
and relevant exhibits from the cases. Moreover,
because students and colleagues often ask us about
the fate of particular litigants—for example, what
happened to Fred Korematsu?—we include
“Aftermath” boxes to a select number of cases. In
addition to providing a coda to the cases, the human
element can lead to interesting discussions about the
impact of decisions on the lives of Americans. We
hope these materials demonstrate to students that
Supreme Court cases involve real people engaged in
real disputes, and are not merely legal names and
citations.
Readers will also find material designed to enhance

their understanding of the law, such as information
on the Supreme Court’s decision-making process,
the structure of the federal judiciary, and briefing
court cases. To broaden students’ perspective on the
U.S. legal system, we also have added boxes on the
laws and legal practices of other countries. Students
and instructors can use these to compare and
contrast U.S. Supreme Court decisions on issues
such as judicial review, privileges and immunities for
legislators, and the separation of powers system
with policies developed in other countries. The use
of foreign law sources in their opinions has
generated disagreement among some of the justices,
and we have found that the material we include here
also inspires lively debates in our classes. We hope it
will do so in yours as well.
Key Revisions
In preparing this tenth edition, we have
strengthened the distinctive features of the earlier
versions by making changes at two levels of the book
—chapters and cases. We thoroughly updated
individual chapters to include important opinions
handed down through the 2017–2018 term. Since
Chief Justice John G. Roberts took office in 2005, the
Court has taken up many pressing issues of the day,
including, of course, health care: we have included
excerpts of National Federation of Independent
Business v. Sebelius (2012) in Chapters 7 and 8, as
we did in the last edition. More recent Roberts Court
decisions, also excerpted, raise interesting questions
as well. Take Zivotofsky v. Kerry (2015). At first
glance it seems to be a very small dispute over place
of birth on passports. In fact, though, it is a
fascinating case pitting legislative versus executive
power. National Labor Relations Board v. Noel
Canning (2014) asks the Court to address novel
questions about the president’s appointment power,
and Horne v. Department of Agriculture (2015)
raises equally interesting issues about the takings
clause of the Fifth Amendment.
For this new edition, we include excerpts from four

additional Roberts Court cases—all from the 2017–
2018 term. Patchak v. Zinke (2018), excerpted in
Chapter 2, is a rather complicated dispute but at its
core asked the Court to determine whether Congress
had stripped its jurisdiction to hear cases involving a
particular piece of land. Almost all the justices
agreed that Congress had done just that but
disagreed over whether Congress had acted
constitutionally. In Murphy v. National Collegiate
Athletic Association (2018), in Chapter 6, the justices
addressed the question of whether the federal
government can constitutionally prohibit the states
from legislating contrary to the wishes of the federal
government. South Dakota v. Wayfair (2018),
excerpted in Chapter 8, drew the Court into a
taxation controversy over whether states can require
out-of-state retailers that have no physical presence
in the state to collect sales taxes from in-state
transactions. The Court had previously held, most
notably in Quill Corp v. North Dakota (1992), that
the commerce clause prohibits states from imposing
such obligations on out-of-state businesses. But in
Wayfair, the Court overruled Quill. (For this reason,
we have moved the Quill excerpt to our case archive.
More on the archive momentarily.) Last but not least,
Chapter 9 now includes Sveen v. Melin (2018), the
Court’s most recent treatment of the contract clause.
(As with Quill, two earlier contract clause cases,
United States Trust v. New Jersey [1977] and Allied
Structural Steel Co. v. Spannaus [1978], are now in
the case archive.)
Other Roberts Court’s decisions find their way into

the narrative. Trump v. Hawaii (2018) provides an
example. Although the Court mostly focused on a
statutory question—whether the Immigration and
Nationality Act allowed the president to issue a
directive restricting some foreign nationals from
entering the United States—there were sufficient
constitutional dimensions to warrant discussion.
(Instructors desiring an excerpt of the case can find
one in the case archive.)
But readers will find more than just updating. We

tried to bring a fresh eye to each chapter. Chapter 4,
covering executive power, provides an example.
Among other changes, we added a section on the
tools available to the president to execute power,
including executive and military orders, and signing
and public statements (even tweets). We also
clarified important debates over the very nature of
executive power, as well as those over the
president’s obligation to enforce the law; and we
added material on special prosecutors. Instructors
will find other attempts to clarify or otherwise
rework material in almost every chapter. (They
should also note another, though more minor
change: Chapter 5 is now titled “Interbranch
Interactions,” which we think more aptly describes
the cases and narrative than the previous title [“The
Separation of Powers System in Action”]).
Bringing a fresh eye to each chapter also meant

reconsidering each and every excerpt. Sometimes
that led us to add paragraphs that we thought had
contemporary pedagogical, legal, or political
relevance; and sometimes it led us to cut back on
various opinions that lacked those attributes.
At the same time, we have retained and enhanced

those features pertaining to case presentation that
have proved useful. We continue to provide key
arguments made by the attorneys on both sides.
Readers will also notice excerpts of both concurring
and dissenting opinions; in fact, almost every case
analyzed in the text now includes one or both.
Although these opinions lack the force of precedent,
they are useful in helping students to see alternative
points of view.
We also provide URLs to the full text of the opinions

and, where available, the URL to a Web site
containing oral arguments in many landmark cases.
We took this step because we recognize how
rewarding it can be to read decisions in their
entirety and to listen to oral arguments. Doing so,
we believe, helps students develop an important skill
—differentiating between viable and less-viable
arguments. Finally, we continue to retain the
historical flavor of the decisions, reprinting verbatim
the original language used in the U.S. Reports to
introduce the justices’ writings. Students will see
that during most of its history the Court used the
term “Mr.” to refer to justices, as in “Mr. Justice
Holmes delivered the opinion of the Court” or “Mr.
Justice Harlan, dissenting.” In 1980 the Court
dropped the title. This point may seem minor, but we
think it is evidence that the justices, like other
Americans, updated their usage to reflect
fundamental changes in American society—in this
case, the emergence of women as a force in the legal
profession and, shortly thereafter, on the Court
itself.
Student and Instructor
Resources
We continue to update and improve our Online Con
Law Resource Center located at
https://edge.sagepub.com/conlaw and hope
instructors find this a valuable resource for
assigning supplemental cases and useful study aids,
as well as for accessing helpful instructor resources.
Through the supplemental case archive, professors
and students can access excerpts of important
decisions that we mention in the text but that space
limitations and other considerations counsel against
excerpting. Cases included in the online archive are
indicated by boldface italic type in the text; see the
Online Case Archive list at the end of the book for a
complete list of those cases. In the archive these
cases are introduced and excerpted in the same
fashion as they are in the book. The archive now
houses more than two hundred cases; we will
continue to keep it current, adding important
decisions as the Court hands them down.
The Online Resource Center also features some

handy study tools for students, including links to a
wealth of background material from CQ Press’s
reference sources, such as our Supreme Court
Compendium (which we coauthored with Harold J.
Spaeth and Jeffrey A. Segal). Students can click to a
bio of any justice and read a background piece on
the origins of the Court. We are grateful to Tim
Johnson of the University of Minnesota for producing
a great set of student and instructor resources. For
students, he has provided a set of auto-gradable quiz
questions covering facts on every case excerpted in
the book. For instructors, in addition to a test bank
that includes short answer and essay questions, he
has created an instructor manual for each chapter
containing discussion questions and case briefs for
every case excerpted in the book. He has also
created a set of short-answer questions covering all
excerpted cases in the book, as well as hypothetical
cases and questions that instructors may use in class
or as graded assignments. Additionally, he has
provided a full set of PowerPoint lecture slides. We
would also like to thank Jeremy Buchman of Oregon
State University, Rorie Spill Solberg of Oregon State
University, and Liane Kosaki of the University of
Wisconsin–Madison for their Moot Court Simulation
in the Resource Center. In this simulation,
instructors can choose hypothetical cases and utilize
their guidelines so that students can play the roles of
counsel or chief or associate justice. Instructors may
also download all the tables, figures, and charts from
our book (in PowerPoint or JPG formats) for use
during lectures. To access all of the instructor-facing
resources, be sure to click on “instructor resources”
at edge.sage pub.com/conlaw so that you can
register and start downloading.
Acknowledgments
Although the first edition of this volume was
published twenty-eight years ago, it had been in the
works for many more. During those developmental
years, numerous people provided guidance, but none
as much as Joanne Daniels, a former editor at CQ
Press. It was Joanne who conceived the idea of a
constitutional law book that would be accessible,
sophisticated, and contemporary. And it was Joanne
who brought that concept to our attention and
helped us develop it into a book. We are forever in
her debt.
Because this new edition charts the same course as

the first nine, we remain grateful to all of those who
had a hand in the previous editions. They include
David Tarr and Jeanne Ferris at CQ Press, Jack
Knight at Duke University, Joseph A. Kobylka of
Southern Methodist University, Jeffrey A. Segal of
the State University of New York at Stony Brook, and
our many colleagues who reviewed and commented
on our work: Judith A. Baer, Ralph Baker, Lawrence
Baum, John Brigham, Gregory A. Caldeira, Bradley
C. Canon, Robert A. Carp, James Cauthen, Phillip J.
Cooper, Sue Davis, John Fliter, Sean Foreman, John
Forren, John B. Gates, Chris Gramling, Hans Hacker,
Edward V. Heck, Joshua Kaplan, Peter Kierst, David
Korman, Cynthia Lebow, John A. Maltese, Wendy
Martinek, Kevin McGuire, Wayne McIntosh, Susan
Mezey, Richard J. Pacelle Jr., C. K. Rowland, Chris
Shortell, Joseph Smith, Donald R. Songer, Harry P.
Stumpf, Judith Sullivan, Artemus Ward, Linda
Wharton, and Harold Young. We are also indebted to
the many scholars who took the time to send us
suggestions, including (again) Greg Caldeira, as well
as Akiba J. Covitz, Jolly Emrey, Alec C. Ewald, Leslie
Goldstein, and Neil Snortland. Many thanks also go
to Jeff Segal for his frank appraisal of the earlier
volumes; to Segal (again), Rebecca Brown, David
Cruz, Micheal Giles, Linda Greenhouse, Dennis
Hutchinson, Adam Liptak, and Judges Frank H.
Easterbrook and Richard A. Posner for their
willingness to share their expertise in all matters of
constitutional law; to Judith Baer and Leslie
Goldstein for their help with previous editions and
their answers to innumerable e-mail messages; to
Jack Knight for his comments on the drafts of several
chapters; and to the very much missed Harold J.
Spaeth for his wonderful Supreme Court Database.
Most of all, we acknowledge the contributions of our

editors at CQ Press, Brenda Carter, Charisse Kiino,
and, most recently, Monica Eckman. Brenda saw
Constitutional Law for a Changing America through
the first five editions; Charisse came on board on the
fifth and worked with us throughout the eighth. Both
were just terrific, somehow knowing exactly when to
steer us and when to steer clear. We are thrilled that
Monica is now running the show; her energy and
dedication to the project are exactly what any book
moving into its tenth edition needs! We are equally
indebted to Carolyn Goldinger, our copy editor on
the first four editions and on the sixth edition. Her
imprint, without exaggeration, remains everywhere.
Over the years, she made our prose more accessible,
questioned our interpretation of certain events and
opinions—and was all too often right—and made our
tables and figures understandable. There is not a
better copy editor in this business. Period.
For this edition, we express our sincere thanks to

our new copy editor, Amy Marks. Her attention to
detail not only enhanced our prose but also worked
to improve the accuracy and relevance of what we
wrote. Her efficiency and technical expertise are
exemplary. We also express many thanks to Tracy
Buyan, our project editor; and to Raquel Christie and
Sam Rosenberg for their assistance with
photographs, permissions, and other technical
matters.
Finally, we acknowledge the support of our home

institutions and of our colleagues and friends. We
are forever grateful to our former professors for
instilling in us their genuine interest in and curiosity
about things judicial and legal, and to our parents
for their unequivocal support.
Shortly before the fifth edition went to press, we

learned that the Constitutional Law for a Changing
America volumes had won the award for teaching
and mentoring presented by the Law and Courts
section of the American Political Science
Association. Each and every one of the editors and
scholars we thank above deserves credit for
whatever success our books have enjoyed. Any
errors of omission or commission, however, remain
our sole responsibility. We encourage students and
instructors alike to comment on the book and to
inform us of any errors. Contact us at
[email protected] or [email protected].
Lee Epstein, St. Louis, Missouri
Thomas G. Walker, Atlanta, Georgia
SAGE edge for Students provides a personalized

approach to help students accomplish their
coursework goals in an easy-to-use learning
environment. Go to edge.sagepub.com/conlaw.
About the Authors
Lee Epstein
(PhD, Emory University) is the Ethan A. H. Shepley
Distinguished University Professor at Washington
University in St. Louis. She is a fellow of the
American Academy of Arts and Sciences and the
American Academy of Political and Social Science.
She is author, coauthor, and/or editor of eighteen
books, including The Supreme Court
Compendium: Data, Decisions, and
Developments, sixth edition, with Jeffrey A. Segal,
Harold J. Spaeth, and Thomas G. Walker; The
Choices Justices Make with Jack Knight, which won
the C. Herman Pritchett Award for the best book
on law and courts; The Behavior of Federal Judges
with William M. Landes and Richard A. Posner; and
An Introduction to Empirical Legal Research with
Andrew D. Martin.
Thomas G. Walker
(PhD, University of Kentucky) is the Goodrich C.
White Professor of Political Science at Emory
University, where he has won several teaching
awards for his courses on constitutional law and
the judicial process. His book A Court Divided,
written with Deborah J. Barrow, won the
prestigious V. O. Key Award for the best book on
Southern politics. He is the author of Eligible for
Execution and coauthor of The Supreme Court
Compendium: Data, Decisions, and
Developments, sixth edition, with Lee Epstein,
Jeffrey A. Segal, and Harold J. Spaeth.
Part One The U.S.
Constitution
An Introduction to the U.S. Constitution
iStock/DanBrandenburg
1. UNDERSTANDING THE U.S. SUPREME

COURT
An Introduction to the U.S.
Constitution
ACCORDING TO President Franklin D. Roosevelt,

“Like the Bible, it ought to be read again and
again.”1 Senator Henry Clay said it “was made not
merely for the generation that then existed, but for
posterity—unlimited, undefined, endless, perpetual
posterity.”2 Justice Hugo Black carried a copy with
him virtually all the time. The object of all this
admiration? The U.S. Constitution. To be sure, the
Constitution has its flaws and its share of detractors,
but most Americans take great pride in their charter.
And why not? It is, after all, the world’s oldest
written constitution.
1 Fireside chat, March 9, 1937.
2 Speech to the Senate, January 29, 1850.
In what follows, we provide a brief introduction to

the document—in particular, the circumstances
under which it was written, the basic principles
underlying it, and some controversies surrounding it.
This material may not be new to you, but, as the
balance of this book is devoted to Supreme Court
interpretation of the Constitution, we think it is
worth reviewing.
The Road to the U.S.
Constitution
While the fledgling United States was fighting for its
independence from England, it was being run (and
the war conducted) by the Continental Congress.
Although this body had no formal authority, it met in
session from 1774 through the end of the war in
1781, establishing itself as a de facto government.
But it may have been something more than that:
About a year into the Revolutionary War, the
Continental Congress took steps toward nationhood.
On July 2, 1776, it passed a resolution declaring the
“United Colonies free and independent states.” Two
days later, on July 4, it formalized this proclamation
in the Declaration of Independence, in which the
nation’s founders used the term United States of
America for the first time.3 But even before the
adoption of the Declaration of Independence, the
Continental Congress had selected a group of
delegates to make recommendations for the
formation of a national government. Composed of
representatives of each of the thirteen colonies, this
committee labored for several months to produce a
proposal for a national charter, the Articles of
Confederation.4 Congress passed the proposal and
submitted it to the states for ratification in
November 1777. Ratification was achieved in March
1781, when Maryland—a two-year holdout—gave its
approval.
3 The text of the Declaration of Independence is
available at
http://avalon.law.yale.edu/18th_century/declare.asp.
4 The full text of the Articles of Confederation is

available at
http://avalon.law.yale.edu/18th_century/artconf.asp.
The Articles of Confederation, however, had little

effect on the way the government operated; instead,
the articles more or less institutionalized practices
that had developed under the Continental Congress
(1774–1781). Rather than provide for a compact
between the people and the government, the 1781
charter institutionalized “a league of friendship”
among the states, an agreement that rested on
strong notions of state sovereignty. This is not to
suggest that the charter failed to provide for a
central government. As is apparent in Figure I-1,
which depicts the structure and powers of
government under the Articles of Confederation, the
articles created a national governing apparatus,
however simple and weak. The plan created a one-
house legislature, with members appointed as the
state legislatures directed, but with no formal
federal executive or judiciary. And although the
legislature had some power, most notably in foreign
affairs, it derived its authority from the states that
had created it, and not from the people.
Figure I-1 The Structure and Powers of Government

under the Articles of Confederation
Source: Adapted from Steffen W. Schmidt, Mark
C. Shelley II, and Barbara A. Bardes, American
Government and Politics Today, 14th ed. (Boston:
Wadsworth, 2008), 42.
The condition of the United States under the Articles

of Confederation was less than satisfactory. Analysts
have pointed out several weaknesses of the articles,
including the following:
Because it allowed Congress only to requisition
funds and not to tax, the federal government was
virtually broke. From 1781 to 1783 the national
legislature requested $10 million from the states
and received only $1.5 million. Given the foreign
debts the United States had accumulated during
the Revolution, this problem was particularly
troublesome.
Because Congress lacked any concrete way to
regulate foreign commerce, treaties between the
United States and other countries were of limited
value. Some European nations (e.g., England and
Spain) took advantage by imposing restrictions on
trade that made it difficult for America to export
goods.
Because the government lacked coercive power
over the states, cooperation among them
dissipated quickly. The states engaged in trading
practices that hurt one another economically. In
short, they acted more like thirteen separate
countries than a union or even a confederation.
Because the exercise of most national authority
required the approval of nine states and because
the passage of amendments required unanimity,
the articles stymied Congress. Indeed, given the
divisions among the states at the time, the
approval of nine states for any action of
substance was rare, and the required unanimity
for amendment was never obtained.
Nevertheless, the government accomplished some

notable objectives during the years the Articles of
Confederation were in effect. Most critical among
these, it brought the Revolutionary War to a
successful end and paved the way for the 1783
Treaty of Paris, which helped make the United States
a presence on the international scene. The charter
served another important purpose: it prevented the
states from going their separate ways until a better
system could be put into place.
In the mid-1780s, as the articles’ shortcomings were

becoming more and more apparent, several
dissidents, including James Madison of Virginia and
Alexander Hamilton of New York, held a series of
meetings to arouse interest in revising the system of
government. At a session in Annapolis in September
1786, they urged the states to send delegations to
another meeting scheduled for the following May in
Philadelphia. Their plea could not have come at a
more opportune time. Just the month before, a
former Revolutionary War captain, Daniel Shays, had
led disgruntled farmers in an armed rebellion in
Massachusetts. They were protesting the poor state
of the economy, particularly as it affected farmers.
Shays’s Rebellion was suppressed by state forces,

but it was seen as yet another sign that the Articles
of Confederation needed amending. In February
1787 Congress issued a call for a convention to
reevaluate the current national system. It was clear,
however, that Congress did not want to scrap the
articles; in fact, it stated that the delegates were to
meet “for the sole and express purpose of revising
the Articles of Confederation.”
Despite these words, the convention’s fifty-five

delegates quickly realized that they would be doing
more than “revising” the articles: they would be
framing a new charter. We can attribute this change
in purpose, at least in part, to the Virginia
delegation. When the Virginians arrived in
Philadelphia on May 14, the day the convention was
supposed to start, only they and the Pennsylvania
delegation were there. Although lacking a quorum,
the Virginia contingent used the eleven days that
elapsed before the rest of the delegates arrived to
craft a series of proposals that called for a wholly
new government structure composed of a strong
three-branch national government empowered to
lead the nation.
Known as the Virginia Plan, these proposals were

formally introduced to all the delegates on May 29,
just four days after the convention began. And
although it was the target of a counterproposal
submitted by the New Jersey delegation, the Virginia
Plan set the tone for the convention. It served as the
basis for many of the ensuing debates and, as we
shall see, for the Constitution itself (see Table I-1).
The delegates had much to accomplish during the

convention period. Arguments between large states
and small states over the structure of the new
government and its relationship to the states
threatened to deadlock the meeting. Indeed, it is
almost a miracle that the delegates were able to
frame a new constitution, which they did in just four
months. One can speculate that the founders
succeeded in part because they were able to close
their meetings to the public, a feat almost
inconceivable today; a contemporary convention of
the states would be a media circus. Moreover, it is
hard to imagine that delegates from fifty states could
agree even to frame a new charter, much less do it in
four months.
Table I-1
The difficulties facing such an enterprise raise an

important issue. A modern constitutional convention
would be hard-pressed to reach consensus because
the delegates would bring with them diverse
interests and aims. But was that not the case in
1787? If, as has been recorded, the framers were
such a fractious bunch, how could they have reached
accord so rapidly? So, who were these men, and
what did they want to do?
These questions have been the subject of lively
debates among scholars. Many agree with historian
Melvin I. Urofsky, who wrote of the Constitutional
Convention, “Few gatherings in the history of this or
any other country could boast such a concentration
of talent.” And, “despite [the framers’] average age
of forty-two [they] had extensive experience in
government and were fully conversant with political
theories of the Enlightenment.”5 Indeed, they were
an impressive group. Thirty-three had served in the
Revolutionary War, forty-two had attended the
Continental Congress, and two had signed the
Declaration of Independence. Two would go on to
serve as U.S. presidents, sixteen as governors, and
two as chief justices of the United States.
5 Melvin I. Urofsky and Paul Finkelman, A March of

Liberty, 2nd ed. (New York: Oxford University Press,
2002), 94–95.
Nevertheless, some commentators take issue with

this rosy portrait of the framers. Because they were
a relatively homogeneous lot—all white men, many
of whom had been educated at the country’s best
schools—skeptics suggest that the document the
framers produced was biased in various ways. In
1987 Justice Thurgood Marshall said that the
Constitution was “defective from the start,” that
despite its first words, “We the People,” it excluded
“the majority of American citizens” because it left
out blacks and women. He further alleged that the
framers “could not have imagined, nor would they
have accepted, that the document they were drafting
would one day be construed by a Supreme Court to
which had been appointed a woman and the
descendant of an African slave.”6
Along the same lines is the point of view expressed

by historian Charles Beard in his controversial work
An Economic Interpretation of the Constitution of
the United States, which depicts the framers as self-
serving. Beard says the Constitution was an
“economic document” devised to protect the
“property interests” of those who wrote it. Various
scholars have refuted this view, and Beard’s work, in
particular, has been largely negated by other
studies.7 Still, by today’s standards it is impossible
to deny that the original Constitution discriminated
on the basis of race and sex or that the framers
wrote it in a way that benefited their class.
6 Quoted in Washington Post, May 7, 1987. See also

Thurgood Marshall, “Reflections on the Bicentennial
of the United States Constitution,” Harvard Law
Review 101 (1987): 1–5.
7 See, for example, Robert E. Brown’s Charles Beard

and the Constitution (Princeton, NJ: Princeton
University Press, 1956). Brown concludes, “We
would be doing a grave injustice to the political
sagacity of the Founding Fathers if we assumed that
property or personal gain was their only motive”
(198).
Given these charges, how has the Constitution
survived for so long, especially considering the U.S.
population’s increasing diversity? The answer lies in
part with the Supreme Court, which generally has
analyzed the document in light of its contemporary
context. That is, some justices have viewed the
Constitution as a living document and have sought to
adapt it to their own times. In addition, the founders
provided for an amending process to ensure the
document’s continuation. That we can alter the
Constitution to fit changing needs and expectations
is obviously important. For example, the original
document held a slave to be three-fifths of a person
for the purposes of representation, and a slave had
no rights of citizenship at all. In the aftermath of the
Civil War, the country recognized the
outrageousness of such provisions and added three
amendments to alter the status of blacks and provide
for their full equality under law.
This is not to suggest that controversies surrounding

the Constitution no longer exist. To the contrary,
charges abound that the document has retained an
elitist or otherwise biased flavor. Some argue that
the amending process is too cumbersome, that it is
too slanted toward the will of the majority. Others
point to the Supreme Court as the culprit, asserting
that its interpretation of the document—particularly
at certain points in history—has reinforced the
framers’ biases.
Throughout this volume, you will have many
opportunities to evaluate these claims. They will be
especially evident in cases involving economic
liberties—those that ask the Court, in some sense, to
adjudicate claims between the privileged and the
underdogs in society. For now, let us consider some
of the basic features of that controversial document
—the U.S. Constitution.
Underlying Principles of the

Constitution
Table I-1 sets forth the basic proposals considered at
the convention and how they got translated into the
Constitution. What it does not show are the
fundamental principles underlying, but not
necessarily explicit in, the Constitution. Three are
particularly important: the separation of
powers/checks and balances system, which governs
relations among the branches of government;
federalism, which governs relations between the
states and the national government; and the
principle of individual rights and liberties, which
governs relations between the government and the
people.
The Separation of
Powers/Checks and Balances
System
One of the fundamental weaknesses of the Articles of
Confederation was their failure to establish a strong
and authoritative federal government. The articles
created a national legislature, but that body had few
powers, and those it did have were kept in check by
the states. The new U.S. Constitution overcame this
deficiency by creating a national government with
three branches—the legislature, the executive, and
the judiciary—and by providing each with significant
power and authority within its sphere. Moreover, the
three newly devised institutions were
constitutionally and politically independent of one
another.
Articles I, II, and III of the Constitution spell out the

specific powers assigned to each branch.
Nevertheless, many questions have arisen over the
scope of these powers as the three institutions use
them. Consider a few examples:
Article I provides Congress with various kinds of

authority over the U.S. military—the authority to
provide for and maintain a navy and to raise and
support armies. But it does not specifically
empower Congress to initiate and operate a draft.
Does that omission mean that Congress may not
do so?
Article II provides the president with the power to
“nominate, and by and with the Advice and
Consent of the Senate, [to] appoint . . . Officers of
the United States,” but it does not specifically
empower the president to fire such officers. May
the president independently dismiss appointees,
or is the “advice and consent” of the Senate also
necessary for the executive to take those actions?
Article III provides the federal courts with the
authority to hear cases involving federal laws, but
it does not specifically empower these courts to
strike down such laws if they are incompatible
with the Constitution. Does that mean federal
courts lack the power of judicial review?
These examples illustrate just a handful of the

questions involving institutional powers that the U.S.
Supreme Court has addressed.
But institutional powers are only one side of the

coin. We should also consider the other side—
constraints on those powers. As depicted in Figure I-
2, the framers not only endowed each branch with
distinct power and authority over its own sphere but
also provided explicit checks on the exercise of those
powers such that each branch can impose limits on
the primary functions of the others. In addition, the
framers made the institutions responsible to
different sets of constituencies. They took these
steps—creating an intricate system of checks and
balances—because they feared the concentration of
powers in a single branch.
Figure I-2 The Separation of Powers/Checks and

Balances System: Some Examples
Although this system has been successful, it also has
produced numerous constitutional questions, many
of which become apparent when we have a
politically divided government, such as a Democratic
president and a Republican Congress, and when one
party or the other is seeking to assert its authority.
What is truly interesting about such cases is that
they continue to appear at the Supreme Court’s
doorstep. Even though the Constitution is more than
two hundred years old, the Court has yet to resolve
all the “big” questions. During the past few decades
the Court has addressed many such questions,
including the following:
May the president authorize the use of military
commissions to try suspected terrorists?
May Congress write into laws legislative veto
provisions by which to nullify actions of the
executive branch?
May Congress pass legislation requiring the
attorney general to appoint an independent
counsel to investigate allegations of wrongdoing
within the executive branch?
As you read the cases and narrative that follow, you

will develop an understanding of how the Court has
addressed these questions and many others relating
to the separation of powers/checks and balances
system.
Federalism
Another flaw in the Articles of Confederation was
how the document envisioned the relationship
between the federal government and the states. As
already noted, the national legislature was not just
weak—it was more or less an apparatus controlled
by the states. They had set up the Articles of
Confederation, and, therefore, they empowered
Congress.
The U.S. Constitution overcame this liability in two

ways. First, it created three branches of
government, all with significant authority. Second, it
set out a plan of operation for the exercise of state
and federal power. This plan of operation, called
federalism, works today under the following
constitutional guidelines:
The Constitution grants certain legislative,

executive, and judicial powers to the national
government. Those not granted to the national
government are reserved to the states.
The Constitution makes the national government
supreme. The Constitution, all laws passed
pursuant to it, and treaties are the supreme law of
the land. American citizens, most of whom are
also state citizens, and state officials owe their
primary allegiance to the national government.
The Constitution denies some powers to both
national and state governments, some only to the
national government, and still others only to the
state governments.
By making the national government supreme in its

spheres of authority, the Constitution corrected a
defect in the Articles of Confederation. But in spite
of the best efforts of the framers to spell out the
nature of federal–state relations, the Constitution
still left many questions unanswered. For example,
the Constitution authorizes Congress to lay and
collect taxes, but it is unclear whether the states
also may exercise powers that are granted to the
federal government. States are not expressly
prohibited from collecting taxes. Therefore, may
Congress and the states both operate taxing
systems?
As you know, the answer to this question is yes, even
though the Constitution does not explicitly say so.
Instead, elected government bodies (through
legislation) and courts (through interpretation) have
defined the specifics of federal–state relations. The
Supreme Court, in particular, by defining the
boundaries of federal and state power, has helped
shape the contours of American federalism.
Individual Rights and Liberties

For many of the framers, the most important
purpose of the new Constitution was to safeguard
individual rights and liberties. They created a limited
government that would wield only those powers
delegated to it and that could be checked by its own
component parts—the states and the people. The
majority of the founders felt it unnecessary to load
the Constitution with specific individual rights, such
as those later spelled out in the Bill of Rights. As
Alexander Hamilton put it, “The Constitution is itself
. . . a Bill of Rights.” Under it, the government could
exercise only those functions specifically bestowed
on it; all other rights remained with the people.
Hamilton and others felt that a list of rights might
even be dangerous because it would inevitably leave
some out.
For this reason and possibly others—some scholars

argue that the framers were too exhausted to
continue—the Constitution was sent to the states
without a list of rights. That omission became the
source of major controversy and served as the
vehicle by which states exacted a compromise over
the Constitution’s ratification.
By January 1788 four states had ratified the

Constitution, but then the pace began to slow. A
movement opposed to ratification was growing in
size and marshaling arguments to deter state
convention delegates. What these opponents, the so-
called Anti-Federalists, most feared was the
Constitution’s new balance of powers. They believed
that strong state governments would provide the
best defense against the accumulation of too much
power by the national government and that the
Constitution tipped the scales the other way. These
fears were countered by the self-labeled Federalists,
who favored ratification of the Constitution.
The Federalists’ arguments and writings took many

forms, but among the most important was a series of
eighty-five articles published in New York
newspapers under the pen name Publius. Written by
John Jay, James Madison, and Alexander Hamilton,
The Federalist Papers—as we shall see throughout
this book—continue to provide great insight into the
objectives and intent of the nation’s founders.8
8The Federalist Papers are available at

https://www.congress.gov/resources/display/content/
The+Federalist+Papers.
The debates between the Federalists and their
opponents were often highly philosophical, with
emphasis on the appropriate roles and powers of
national institutions. Within the states, however,
ratification drives were full of the stuff of ordinary
politics—deal making. The Massachusetts ratifying
convention provides a case in point. After three
weeks of debate among delegates, Federalist leaders
realized that they would achieve victory only if they
could obtain Governor John Hancock’s support. They
called on Hancock at home and proposed that he
endorse ratification on condition that a series of
amendments be drawn up for consideration by
Congress. The governor agreed as long as he would
become president of the United States if Virginia
failed to ratify or if George Washington refused to
serve. Or he would accept the vice presidency. With
the deal cut, Hancock went to the convention to
propose a compromise—the ratification of the
Constitution with amendments. The delegates went
along with the plan, making Massachusetts the sixth
state to ratify.9
9 Joseph T. Keenan, The Constitution of the United

States (Chicago: Dorsey Press, 1988), 32–33.
This compromise—the call for a bill of rights—caught

on, and Madison began to advocate it whenever
close votes were likely. As it turned out, he and other
Federalists needed to mention the point quite often:
of the nine states ratifying after January 1788, seven
recommended that the new Congress consider
amendments. New York and Virginia probably would
not have agreed to the Constitution without such an
addition, and Virginia called for a second
constitutional convention for this purpose. Other
states began revising their own wish lists of specific
rights they wanted included in the document.10
10 Alpheus T. Mason, ed., The States Rights Debate,

2nd ed. (New York: Oxford University Press, 1972),
92–93.
The Federalists realized that if they did not accede

to state demands, either the Constitution would not
be ratified or a new constitutional convention would
be necessary. Because neither alternative was
particularly attractive, it was agreed that the
document would be amended as soon as the new
government came into power. And with that promise
came the ratification of the Constitution by the
requisite number of states just a year after it was
written. The ratification of the Bill of Rights, on
December 15, 1791, quieted those who had voiced
objections. But the guarantees these ten
amendments provide continue to serve as fodder for
debate and, most relevant here, for Supreme Court
litigation. Many of these debates involve the
construction of specific guarantees, such as free
speech and free exercise of religion, under which
individuals seek relief when governments allegedly
infringe on their rights.
The debates also involve clashes between the
authority of the government to protect the safety,
health, morals, and general welfare of citizens and
the right of individuals not to be deprived of their
liberty without due process of law. These disputes
arise from specific and often difficult questions. For
example, may government force a business owner to
pay employees a certain wage, or does that
requirement infringe on the employer’s liberty? May
government force homeowners to vacate their
houses if it needs the property to construct a road
and is willing to pay the owners “fair market value”
for their property, or does that interfere with a right
contained in the Fifth Amendment? The answers to
these questions and others like them reveal the
contours of government power in relation to
individual rights.
Chapter One Understanding
the U.S. Supreme Court
THIS BOOK is devoted to narrative and opinion

excerpts showing how the U.S. Supreme Court has
interpreted the Constitution.1 As a student
approaching constitutional law, perhaps for the first
time, you may think it is odd that the subject
requires more than 750[PE: Update with total book
page count rounded to the nearest hundred.] XXX
pages of text. After all, in length, the Constitution
and the amendments to it could fit easily into many
Court decisions. Moreover, the document itself—its
language—seems so clear.
1 This is not to say that the Supreme Court alone

engages in constitutional interpretation. Many
commentators have suggested that the president,
Congress, and even the American people can also lay
claim to playing a role in constitutional
interpretation. See Walter F. Murphy’s classic, “Who
Shall Interpret the Constitution?,” Review of Politics
48 (1986): 401–423. We discuss this idea in the
introduction to Part II, and throughout the volume
you will find examples of constitutional deliberation
beyond the confines of the judiciary.
First impressions, however, can be deceiving. Even

apparently clear constitutional phrases do not
necessarily lend themselves to clear constitutional
interpretation. For example, according to Article II,
Section 2, the president “shall be Commander in
Chief of the Army and Navy of the United States.”
Sounds simple enough, but could you, based on
those words, answer the following questions, all of
which have been posed to the Court?
May the president, during times of war, order a

blockade of ports in the United States?
May Congress delegate to the president the
power to order an arms embargo against nations
at war?
May the president, during times of war, order that
alleged traitors or terrorists be tried by military
tribunals rather than civilian courts?
May the president, during times of international
crisis, authorize the creation of military camps to
intern potential traitors to prevent sabotage?
These and other questions arising from the different

guarantees contained in the Constitution illustrate
that a gap sometimes exists between the document’s
words and reality. Although the language seems
explicit, its meanings can be elusive and difficult to
interpret. Accordingly, the justices of the Supreme
Court have developed various approaches to
resolving disputes.
As Figure 1-1 shows, however, a great deal happens

before the justices actually decide cases. We begin
our discussion with a brief overview of the steps
depicted in the figure. Next, we consider
explanations for the choices justices make at the
final and most important stage, the resolution of
disputes.
Processing Supreme Court

Cases
During the 2016–2017 term, 6,305 petitions arrived
at the Supreme Court’s doorstep, but the justices
issued only 61 signed opinions.2 The disparity
between the number of parties who want the Court
to resolve their disputes and the number of disputes
the Court agrees to resolve raises some important
questions: How do the justices decide which cases to
hear? What happens to the cases they reject and to
those the Court agrees to resolve? We address these
and other questions by describing how the Court
processes its cases.
2 Data from the Chief Justice’s 2017 Year-End

Report on the Federal Judiciary, available at
http://www.supremecourt.gov/publicinfo/year-
end/2017year-endreport.pdf.
Figure 1-1 The Processing of Cases

Source: Compiled by the authors.
Deciding to Decide: The

Supreme Court’s Caseload
As the figures for the 2016–2017 term indicate, the
Court heard and decided less than 1 percent of the
cases it received. This percentage is quite low, but it
follows the general trend in Supreme Court decision
making: the number of requests for review increased
dramatically during the twentieth century, but the
number of cases the Court formally decides each
year did not increase. In 1930 the Court agreed to
decide 159 of the 726 disputes it received. In 1990
the number of cases granted review fell to 141, but
the sum total of petitions for review rose to 6,302—
nearly nine times the number in 1930.3
3 Data from Lee Epstein, Jeffrey A. Segal, Harold J.

Spaeth, and Thomas G. Walker, The Supreme Court
Compendium: Data, Decisions, and Developments,
6th ed. (Thousand Oaks, CA: CQ Press, 2015), tables
2-5 and 2-6.
But how do any of these cases get to the Supreme

Court? How do the justices decide which will get a
formal review and which will be rejected? What
affects their choices? We consider these questions in
turn below, for the answers are fundamental to an
understanding of judicial decision making.
How Cases Get to the Court:

Jurisdiction and the Routes of Appeal.
Cases come to the Court in one of four ways: by a
request for review under the Court’s original
jurisdiction or by three appellate routes—appeals,
certification, and petitions for writs of certiorari (see
Figure 1-1). Chapter 2 explains more about the
Court’s original jurisdiction, as it is central to
understanding the landmark case of Marbury v.
Madison (1803). Here, it is sufficient to note that
original cases are those that no other court has
heard. Article III of the Constitution authorizes such
suits in cases involving ambassadors from foreign
countries and those to which a state is a party. But
because congressional legislation permits lower
courts to exercise concurrent authority over most
cases meeting Article III requirements, the Supreme
Court does not have exclusive jurisdiction over them.
Consequently, the Court normally accepts, on its
original jurisdiction, only those cases in which one
state is suing another (usually over a disputed
boundary) and sends the rest to the lower courts for
initial rulings. That is why in recent years original
jurisdiction cases have made up only a tiny fraction
of the Court’s overall docket—between one and five
cases per term.
Most cases reach the Court under its appellate

jurisdiction, meaning that a lower federal or state
court has already rendered a decision and one of the
parties is asking the Supreme Court to review that
decision. As Figure 1-2 shows, such cases typically
come from one of the U.S. courts of appeals or state
supreme courts. The U.S. Supreme Court, the
nation’s highest tribunal, is the court of last resort.
To invoke the Court’s appellate jurisdiction, litigants
can take one of three routes, depending on the
nature of their dispute: appeal as a matter of right,
certification, or certiorari. Cases falling into the first
category (normally called “on appeal”) involve issues
that Congress has determined are so important that
a ruling by the Supreme Court is necessary. Before
1988 these included cases in which a lower court
declared a state or federal law unconstitutional or in
which a state court upheld a state law challenged on
the grounds that it violated the U.S. Constitution.
Although the justices were supposed to decide such
appeals, they often found a more expedient way to
deal with them—by either failing to consider them or
issuing summary decisions (shorthand rulings). At
the Court’s urging, in 1988 Congress virtually
eliminated “mandatory” appeals. Today, the Court is
legally obligated to hear only those few cases
(typically involving the Voting Rights Act) appealed
from special three-judge district courts. When the
Court agrees to hear such cases, it issues an order
noting its “probable jurisdiction.”
A second, but rarely used, route to the Court is

certification. Under the Court’s appellate jurisdiction
and by an act of Congress, lower appellate courts
can file writs of certification, asking the justices to
respond to questions aimed at clarifying federal law.
Because only judges may use this route, very few
cases come to the Court this way—fewer than a
handful in the past seven decades.4 The justices are
free to accept a question certified to them or dismiss
it.
4 See Marcia Coyle, “Supreme Court Asked to Take

Certified Question for Only Fifth Time in Six-Plus
Decades,” National Law Journal, August 3, 2009.
Figure 1-2 The American Court System
Source: Compiled by the authors.
That leaves the third and most common appellate

path, a request for a writ of certiorari (from the
Latin meaning “to be informed”). In a petition for a
writ of certiorari, the litigants desiring Supreme
Court review ask the Court, to literally become
“informed” about their cases by requesting that the
lower court send up the record. Most of the six
thousand or so cases that arrive each year come as
requests for certiorari. The Court, exercising its
ability to choose the cases it will review, grants
“cert” to less than 1 percent of the petitions. A grant
of cert means that the justices have decided to give
the case full review; a denial means that the decision
of the lower court remains in force.
In sum, Article III of the U.S. Constitution enables

the Supreme Court to decide cases that have not
been heard by any other court, but the vast majority
of disputes that reach the justices have already been
resolved by another judicial body. The United States’
approach is not the only way to design a legal
system. For example, in a society that has created a
single constitutional court, that tribunal may have a
judicial monopoly on interpreting matters of
constitutional law; it may be the only forum in which
citizens can bring constitutional claims (see Box 1-
1).
How the Court Decides: The Case

Selection Process.
Regardless of the specific design of a legal system,
in many countries jurists must confront the task of
“deciding to decide”—that is, choosing which cases
to resolve from among the hundreds or even
thousands they receive. The U.S. Supreme Court is
no exception; it too has the job of deciding to decide,
or identifying those cases to which it will grant cert.
This task presents something of a mixed blessing to
the justices. Selecting the seventy or so cases to
review from the large number of petitions is an
arduous undertaking that requires the justices or
their law clerks to look over hundreds of thousands
of pages of briefs and other memoranda. The ability
to exercise discretion, however, frees the Court from
one of the major constraints on judicial bodies: the
lack of agenda control. The justices may not be able
to reach out and propose cases for review the way
members of Congress can propose legislation, but
the enormous number of petitions they receive
ensures that they can resolve at least some issues
important to them.
Box 1-1 The American Legal System in Global

Perspective
THE AMERICAN legal system can be described as

dual, parallel, and (for the most part) three tiered.
It is dual because one federal system and fifty
state systems coexist, each ruling on disputes
falling under its particular purview. This duality
does not mean, however, that state courts never
hear cases involving claims made under the U.S.
Constitution or that federal courts necessarily
shun cases arising out of state law. In fact, the
U.S. Supreme Court can review cases involving
federal questions on which state supreme courts
have ruled and can strike down state laws if they
are incompatible with the U.S. Constitution.
Similarly, many cases arising from state law and
heard in state courts also contain federal issues
that must be resolved.
Differences exist among the state court systems,

but most today roughly parallel the federal
system. Trial courts—the lowest rungs on the
ladder—are the entry points into the system. In
the middle of the ladder are appellate courts,
those that upon request review the records of trial
court proceedings. Finally, both systems have
supreme courts, bodies that provide final answers
to legal questions in their own domains.
Although a supreme court sits atop each ladder,

the U.S. Supreme Court plays a unique role—it is
the apex of both state and federal court systems.
Because it can hear cases and ultimately overturn
the rulings of federal and state court judges, it is
presumably the authoritative legal body in the
United States.
Some nations have created legal systems that, to

greater or lesser extents, resemble the American
system. For example, Japan, whose constitutional
document was drafted largely by Americans, also
has a three-tiered structure. Cases typically begin
at the district (trial) court level, move to high
courts (Japan’s version of midlevel appellate
courts), and, finally, may advance to the Supreme
Court. But other nations—first Austria, Germany,
and Italy and later Belgium, Portugal, South
Africa, Spain, and most of the countries of Eastern
and Central Europe—have taken a much different
approach. In these countries, the highest court is
not a supreme court but a single constitutional
court, which has a judicial monopoly on
interpreting matters of constitutional law. Such a
constitutional court is not a part of the “ordinary”
court system; litigants do not typically petition the
justices to review decisions of lower courts.
Rather, when judges confront a law whose
constitutionality they doubt, they are obliged to
send the case directly to the constitutional court.
This tribunal receives evidence on the
constitutional issue, sometimes gathers evidence
on its own, hears arguments, perhaps consults
sources that counsel overlooked, and hands down
a decision. But, unlike in the United States, the
constitutional court does not decide the case
because it has not heard a case—it has only
addressed a question of constitutional
interpretation. Although the court publishes an
opinion justifying its ruling and explaining the
controlling principles, the case still must be
decided by regular tribunals. In some countries—
for example, Germany, Italy, and Russia—public
officials also may bring suits in the constitutional
court challenging the legitimacy of legislative,
executive, or judicial acts, and under some
circumstances private citizens may initiate similar
litigation. Where judicial action is challenged, the
constitutional court in effect reviews a decision of
another court, but the form of the action is very
different from an appeal in the United States.
This type of court system is often called

“centralized” because the power of judicial review
—that is, the power to review government acts for
their compatibility with the nation’s constitution
and to strike down those acts that are not
compatible—rests in one constitutional court;
other courts are typically barred from exercising
judicial review, although they may refer
constitutional questions to the constitutional
tribunal. In contrast, the U.S. system is deemed
“decentralized” because ordinary courts—not just
supreme courts—can engage in judicial review. We
shall return to this distinction in Chapter 2 (see
Box 2-1).
Many scholars and lawyers have tried to determine

what makes a case “certworthy,” that is, worthy of
review by the Supreme Court. Before we look at
some of their findings, let us consider the case
selection process itself. The original pool of 6,000–
7,000 petitions faces several checkpoints along the
way (see Figure 1-1), which significantly reduce the
amount of time the Court, acting as a collegial body,
spends deciding what to decide. The staff members
in the office of the Supreme Court clerk act as the
first gatekeepers. When a petition for certiorari
arrives, the clerk’s office examines it to make sure it
is in proper form, that it conforms to the Court’s
precise rules. Briefs must be “prepared in a 6⅛-by-
9¼-inch booklet, . . . typeset in a Century family 12-
point type with 2-point or more leading between
lines.” Exceptions are made for litigants who cannot
afford to pay the Court’s fees. The rules governing
these petitions, known as in forma pauperis briefs,
are somewhat looser, allowing indigents to submit
briefs on 8½-by-11-inch paper. The Court’s major
concern, or so it seems, is that the document “be
legible.”5
5 Rules 33 and 39 of the Rules of the Supreme Court
of the United States. All Supreme Court rules are
available at
https://www.supremecourt.gov/filingandrules/2017R
ulesoftheCourt.pdf.
The clerk’s office gives each acceptable petition an

identification number, called a “docket number,” and
forwards copies to the chambers of the individual
justices. On the current (2018) Court, all the justices
but Samuel Alito and Neil Gorsuch use the
“certiorari pool system,” in which clerks from the
different chambers collaborate in reading and then
writing memos on the petitions.6 Upon receiving the
preliminary or pool memos, the individual justices
may ask their own clerks for their thoughts about
the petitions. The justices then use the pool memos,
along with their clerks’ reports, as a basis for
determining which cases they believe are worthy of
a full hearing.
6 Supreme Court justices are authorized to hire four

law clerks each. Typically, these clerks are
outstanding recent graduates of the nation’s top law
schools. Pool (or preliminary) memos, as well as
other documents pertaining to the Court’s case
selection process, are available at
http://epstein.wustl.edu/blackmun.php. See also
Ryan C. Black and Christina L. Boyd, “The Role of
Law Clerks in the U.S. Supreme Court’s Agenda-
Setting Process,” American Politics Research 40
(2012): 147–173.
During this process, the chief justice serves as yet
another checkpoint on petitions. Before the justices
meet to make case selection decisions, the chief
circulates a “discuss list” containing those cases he
feels the Court should consider; any justice (in order
of seniority) may add cases to this list but may not
remove any. Less than a third of the cases that come
to the Court make it to the list and are actually
discussed by the justices in conference. The rest are
automatically denied review, leaving the lower court
decisions intact.7
7 For information on the discuss list, see Ryan C.

Black and Christina L. Boyd, “Selecting the Select
Few: The Discuss List and the U.S. Supreme Court’s
Agenda-Setting Process,” Social Science Quarterly
94 (2013): 1124–1144; and Gregory A. Caldeira and
John R. Wright, “The Discuss List: Agenda Building
in the Supreme Court,” Law and Society Review 24
(1990): 807–836.
This much we know. Because only the justices attend

the Court’s conferences, we cannot say precisely
what transpires there. We can offer only a rough
picture based on scholarly writings, the comments of
justices, and our examination of the private papers
of several retired justices. These sources tell us that
the discussion of each petition begins with the chief
justice presenting a short summary of the facts and,
typically, stating his vote. The associate justices, who
sit at a rectangular table, then comment on each
petition, with the most senior justice speaking first
and the newest member last. The associate justices
may provide some indication of how they will vote on
the merits of the case if it is accepted. Given the
large number of petitions, the justices apparently
discuss few cases in detail but they do record their
votes on certiorari (and, later, on the merits of the
case if cert is granted) in docket books, as Figure 1-3
shows.
By tradition, the Court adheres to the so-called Rule

of Four: it grants certiorari to those cases receiving
the affirmative vote of at least four justices. The
Court identifies the cases accepted and rejected on a
“certified orders list,” which is released to the
public. For a case granted certiorari or in which
probable jurisdiction is noted, the clerk informs the
participating attorneys, who then have specified
time limits in which to turn in their written legal
arguments (briefs), and the case is scheduled for
oral argument.
Considerations Affecting Case

Selection Decisions.
This is how the Court considers petitions, but why do
the justices make the decisions that they do?
Scholars have developed several answers to this
question, with three worthy of our attention: conflict
in the lower courts, attorneys, and political
considerations.8
8 Procedural considerations also play a role. These
come from Article III, which—under the Court’s
interpretation—places constraints on the ability of
federal tribunals to hear and decide cases. Chapter 2
considers these constraints, which include
justiciability (the case must be appropriate for
judicial resolution in that it presents a real “case”
and “controversy”) and standing (the appropriate
person must bring the case). Unless these
procedural criteria are met, the Court—at least
theoretically—will deny review.
To see the importance of conflict, we need only turn

to Rule 10, which the Court has established to
govern the certiorari decision-making process.
Under Rule 10, the Court emphasizes its role in
resolving “conflict” in the lower courts, such as
when a U.S. “court of appeals has entered a decision
in conflict with the decision of another United States
court of appeals on the same important matter” or
when decisions of state courts of law collide with one
another or the federal courts.9
9 Rule 10 also stresses the Court’s interest in

“important” federal questions.
Figure 1-3 A Page from Justice Blackmun’s Docket

Books
Source: Dockets of Harry A. Blackmun,
Manuscript Division, Library of Congress,
Washington, DC.
Note: As the docket sheet shows, the justices

have a number of options when they meet to vote
on cert. They can grant (G) the petition or deny
(D) it. They also can cast a “Join 3” (3) vote.
Justices may have different interpretations of a
Join 3, but, at the very least, it means that the
justice agrees to supply a vote in favor of cert if
three other justices support granting review. In
the MERITS column, REV = reverse the decision
of the court below and AFF = affirm the decision
of the court below.
Does the Court follow this rule? The answer is

generally yes. The presence of actual conflict
between or among federal courts, a major concern of
Rule 10, substantially increases the likelihood of
review; if actual conflict is present in a case, it has a
33 percent chance of gaining Court review, as
compared with the usual 1 percent certiorari rate.10
Still, the justices do not accept all cases with conflict
because there are too many.11 And, conversely, it
occasionally grants cert to cases lacking conflict.
10 See Gregory A. Caldeira and John R. Wright,

“Organized Interests and Agenda Setting in the U.S.
Supreme Court,” American Political Science Review
82 (1988): 1109–1127.
11 In fact, during any given term, the Court rejects

hundreds of cases in which real conflicts exist. See
Lawrence Baum, The Supreme Court, 10th ed.
(Washington, DC: CQ Press, 2009), 92–93.
For this reason, commentators have considered

other factors that may influence the Court’s case
selection process. Along these lines, they have
pointed to the role that various attorneys play—
especially the U.S. solicitor general (SG), the
attorney whose office represents the U.S.
government before the Supreme Court. Simply
stated, when the SG files a petition, the Court is very
likely to grant certiorari. In fact, the Court accepts
about 70 percent to 80 percent of the cases in which
the federal government is the petitioning party.
Why is the SG so successful? One reason is that the

Court is well aware of the SG’s special role. A
presidential appointee whose decisions often reflect
the administration’s philosophy, the SG also
represents the interests of the United States. As the
nation’s highest court, the Supreme Court cannot
ignore these interests. In addition, the justices rely
on the SG to act as a filter; that is, they expect the
SG to examine carefully the cases to which the
government is a party and bring only the most
important to their attention. Furthermore, because
solicitors general are involved in so much Supreme
Court litigation, they acquire a great deal of
knowledge about the Court that other litigants do
not. They are “repeat players” who know the “rules
of the game” and can use them to their advantage by
writing to attract the attention and interest of the
justices. Finally, some scholars have placed less
emphasis on the SG’s experience and more on the
professionalism of the SG and the lawyers working
in his or her office. According to these scholars, they
are “consummate legal professionals whose
information justices can trust.”12
12 Ryan C. Black and Ryan J. Owens, The Solicitor

General and the United States Supreme Court:
Executive Branch Influence and Judicial Decisions
(Cambridge, UK: Cambridge University Press, 2012),
71.
But the SG is not the only successful petitioning

attorney. According to journalists studying the
modern-day cert process,13 a group of 66 lawyers
have had phenomenal success convincing the
justices to accept their petitions: for every 100
petitions they file, the Court grants about 20,
compared to about 1 out of 100 for all other
petitioners. Because many of these “elite” attorneys
worked in the Office of the Solicitor General or
clerked for a Supreme Court justice, perhaps their
success rate is not so surprising.
13 Joan Biskupic, Janet Roberts, and John Shiffman,

“The Echo Chamber,” Reuters, December 8, 2014,
https://www.reuters.com/investigates/special-
report/scotus/.
Lawyers, elite or otherwise, can also increase the

chances of a cert grant by filing amicus curiae
(“friend of the court”) briefs on behalf of interest
groups and other third parties. Amicus curiae briefs
are more typical after the Court decides to hear a
case, but they can also be filed at the certiorari stage
(see Box 1-2). Research by political scientists shows
that amicus briefs significantly enhance a case’s
chances of being heard, and multiple briefs have a
greater effect.14 Another interesting finding of these
studies is that even when groups file in opposition to
granting certiorari, they increase—rather than
decrease—the probability that the Court will hear
the case.
14 Caldeira and Wright, “Organized Interests and

Agenda Setting”; Ryan C. Black and Ryan J. Owens,
“Agenda Setting in the Supreme Court: The Collision
of Policy and Jurisprudence,” Journal of Politics 71
(2009): 1062–1075.
These findings suggest that the justices may not be
strongly influenced by the arguments contained in
amicus briefs (if they were, why would briefs in
opposition to certiorari have the opposite effect?),
but they seem to use them as cues. In other words,
because amicus briefs filed at the certiorari stage
are somewhat uncommon—less than 10 percent of
all petitions are accompanied by amicus briefs—they
do draw the justices’ attention. If major
organizations are sufficiently interested in an appeal
to pay the cost of filing briefs in support of (or
against) Court review, then the petition for certiorari
is probably worth the justices’ serious consideration.
Last but not least, politics—in the form of the

justices’ ideology—affects decisions on certiorari
petitions. Researchers tell us that the justices during
the liberal period under Chief Justice Earl Warren
(1953–1969) were more likely to grant review to
cases in which the lower court reached a
conservative decision so that they could reverse,
while those of the moderately conservative Court
during the years of Chief Justice Warren Burger
(1969–1985) took liberal results to reverse. There is
little reason to believe that the current justices are
any less likely than their predecessors to vote on the
basis of their ideologies. Scholarly studies also
suggest that justices engage in strategic voting
behavior at the cert stage. In other words, justices
are forward thinking; they consider the implications
of their cert vote for the later merits stage, asking
themselves, “If I vote to grant a particular petition,
what are the odds of my position winning down the
road?” As one justice explained his calculations, “I
might think the Nebraska Supreme Court made a
horrible decision, but I wouldn’t want to take the
case, for if we take the case and affirm it, then it
would become precedent.”15
15 Quoted in H. W. Perry Jr., Deciding to Decide:

Agenda Setting in the United States Supreme Court
(Cambridge, MA: Harvard University Press, 1991),
200.
Briefing and Arguing Cases

Once the Supreme Court agrees to decide a case,
the clerk of the Court informs the parties. The
parties present their side of the dispute to the
justices in written and oral arguments.
Written Arguments.
Written arguments, called briefs, are the major
vehicles for parties to Supreme Court cases to
document their positions. Under the Court’s rules,
the appealing party (known as the appellant or
petitioner) must submit its brief within forty-five
days of the time the Court grants certiorari; the
opposing party (known as the appellee or
respondent) has thirty days after receipt of the
appellant’s brief to respond with arguments urging
affirmance of the lower court ruling.
As is the case for cert petitions, the Court maintains
specific rules covering the presentation and format
of merits briefs. The briefs of both parties must be
submitted in forty copies and not exceed 15,000
words. Rule 24 outlines the material that briefs must
contain, such as a description of the questions
presented for review, a list of the parties, and a
statement describing the Court’s authority to hear
the case. Also worth noting: the Court’s rules now
mandate electronic submission of all briefs
(including amicus briefs) in addition to the normal
hard-copy submissions.
The clerk sends the briefs to the justices, who

normally read them before oral argument. Written
briefs are important because the justices may use
them to formulate the questions they ask the lawyers
representing the parties. The briefs also serve as a
permanent record of the positions of the parties,
available to the justices for consultation after oral
argument when they decide the case outcome. A
well-crafted brief can provide the justices with
arguments, legal references, and suggested
remedies that later may be incorporated into the
opinion.
Box 1-2 The Amicus Curiae Brief
The amicus curiae practice probably originates in

Roman law. A judge would often appoint a
consilium (officer of the court) to advise him on
points where the judge was in doubt. That may be
why the term amicus curiae translates from the
Latin as “friend of the court.” But today it is the
rare amicus who is a friend of the court. Instead,
contemporary briefs almost always are a friend of
a party, supporting one side over the other at the
certiorari and merits stages. Consider one of the
briefs filed in United States v. Windsor (2013),
the cover of which is reprinted here. In that case,
the American Psychological Association and other
organizations filed in support of Edith Windsor.
They, along with Windsor, asked the Court to
invalidate the Defense of Marriage Act (DOMA),
which defined marriage under federal law as a
“legal union between one man and one woman.”
These groups were anything but neutral
participants.
How does an organization become an amicus

curiae participant in the Supreme Court of the
United States? Under the Court’s rules, groups
wishing to file an amicus brief at the certiorari or
merits stage must obtain the written consent of
the parties to the litigation (the federal and state
governments are exempt from this requirement).
If the parties refuse to give their consent, the
group can file a motion with the Court asking for
its permission. The Court today almost always
grants these motions.
In addition to the briefs the parties submit to the
suit, Court rules allow interested persons,
organizations, and government units to participate
as amici curiae on the merits—just as they are
permitted to file such briefs at the review stage (see
Box 1-2). Those wishing to submit amicus curiae
briefs must obtain the written permission of the
parties or the Court. Only the federal government
and state governments are exempt from this
requirement.
Oral Arguments.
Attorneys also have the opportunity to present their
cases orally before the justices. Each side has thirty
minutes to convince the Court of the merits of its
position and to field questions from the justices,
though sometimes the Court makes small exceptions
to this rule. In the 2011 term, it made a particularly
big one, hearing six hours of oral argument, over
three days, on the Patient Protection and Affordable
Care Act (“Obamacare”), the health-care law passed
in 2010. This was unprecedented in the modern era,
but not in the Court’s early years. In the past,
because attorneys did not always prepare written
briefs, the justices relied on oral arguments to learn
about the cases and to help them develop arguments
for their opinions. Orals were considered important
public events, opportunities to see the most
prominent attorneys of the day at work. Back then,
arguments often went on for days: Gibbons v. Ogden
(1824), the landmark commerce clause case, was
argued for five days, and McCulloch v. Maryland
(1819), the litigation challenging the
constitutionality of the national bank, took nine days
to argue.
The justices can interrupt the attorneys at any time

with comments and questions, as the following
exchange between Justice Byron White and Sarah
Weddington, the attorney representing Jane Roe in
Roe v. Wade (1973), illustrates. White got the ball
rolling when he asked Weddington to respond to an
issue her brief had not addressed: whether abortions
should be performed during all stages of pregnancy
or should somehow be limited. The following
discussion ensued:
White: And the statute doesn’t make any distinction

based upon at what period of pregnancy the abortion
is performed?
Weddington: No, Your Honor. There is no time limit

or indication of time, whatsoever. So I think—
White: What is your constitutional position there?
Weddington: As to a time limit. . . . It is our position

that the freedom involved is that of a woman to
determine whether or not to continue a pregnancy.
Obviously, I have a much more difficult time saying
that the State has no interest in late pregnancy.
White: Why? Why is that?
Weddington: I think that’s more the emotional

response to a late pregnancy, rather than it is any
constitutional—
White: Emotional response by whom?
Weddington: I guess by persons considering the

issue outside the legal context, I think, as far as the
State—
White: Well, do you or don’t you say that the

constitutional—
Weddington: I would say constitutional—
White: Right you insist on reaches up to the time of

birth, or—
Weddington: The Constitution, as I read it . . .

attaches protection to the person at the time of
birth.
In the Court’s early years, there was little doubt

about the importance of such exchanges, and of oral
arguments in general, because the justices did not
always have the benefit of written briefs, as we just
noted. In more modern times, however, some
scholars and even justices have questioned the
effectiveness of oral arguments and their role in
decision making. Chief Justice Earl Warren
contended that they made little difference to the
outcome. Once the justices have read the briefs and
studied related cases, most have relatively firm
views on how the case should be decided, and orals
change few minds. Justice William J. Brennan Jr.,
however, contended that they are extremely
important because they help justices to clarify core
arguments. Recent scholarly work seems to come
down on Brennan’s side. According to a study by
Timothy Johnson and his colleagues, the justices are
more likely to vote for the side with the better
showing at orals. Along somewhat different lines, a
study by Lee Epstein, William Landes, and Richard
Posner shows that orals may be a good predictor of
the Court’s final votes: all else equal, the side that
receives the greater number of questions tends to
lose.16 One possible explanation is that the justices
use oral arguments as an occasion to express their
opinions and attempt to influence their colleagues,
because formal deliberation (described below) is
often limited and highly structured.
16 Timothy R. Johnson, Paul J. Wahlbeck, and James

F. Spriggs II, “The Influence of Oral Arguments on
the U.S. Supreme Court,” American Political Science
Review 100 (2006): 99–113; Lee Epstein, William M.
Landes, and Richard A. Posner, “Inferring the
Winning Party in the Supreme Court from the
Pattern of Questioning at Oral Argument,” Journal of
Legal Studies 39 (2010): 433–467.
The debate will likely continue. Even if oral

arguments turn out to have little effect on the
justices’ decisions, we should not forget the symbolic
importance of the arguments: they are the only part
of the Court’s decision-making process that occurs in
public and that you now have the opportunity to
hear. Law professor Jerry Goldman has made the
oral arguments of many cases available online at
https://www.oyez.org. Throughout this book you will
find references to this Web site, indicating that you
can listen to the arguments in the case you are
reading.
The Supreme Court Decides:
Some Preliminaries
After the Court hears oral arguments, it meets in a
private conference to discuss the case and to take a
preliminary vote. Here we describe the Court’s
conference procedures and the two stages that
follow the conference: the assignment of the opinion
of the Court and opinion circulation.
The Conference.
Despite popular support for “government in the
sunshine,” the Supreme Court insists that its
decisions take place in a private conference, with no
one in attendance except the justices. Congress has
acceded to this demand, exempting the federal
courts from open government and freedom of
information legislation. There are two basic reasons
for the Court’s insistence on the private conference.
First, the Supreme Court—which, unlike Congress,
lacks an electoral connection—is supposed to base
its decisions on factors other than public opinion.
Opening up deliberations to press scrutiny, for
example, might encourage the justices to take more
notice of popular sentiment, or so the argument
goes. Second, although the Court reaches tentative
decisions on cases in conference, the opinions
explaining the decisions remain to be written. This
process can take many weeks or even months, and a
decision is not final until the opinions are written,
circulated, and approved. Because the Court’s
decisions can have major effects on politics and the
economy, any party having advance knowledge of
case outcomes could use that information for unfair
business and political advantage.
The closed system works so well that, with only a

few exceptions, the justices have not experienced
information leaks—at least not prior to the public
announcement of a decision. After that, clerks and
even justices have sometimes thrown their own
sunshine on the Court’s deliberations. National
Federation of Independent Business v. Sebelius
(2012) (excerpted in Chapters 7 and 8), involving the
constitutionality of the health-care law passed in
2010, provides a recent example. Based on
information from reliable sources, Jan Crawford of
CBS News reported that Chief Justice John Roberts
initially voted to join the Court’s four conservative
justices to strike down the law but later changed his
vote to join the four liberals to uphold it.17
17 Jan Crawford, “Roberts Switched Views to Uphold

Health Care Law,” CBS News, Face the Nation, July
1, 2012, http://www.cbsnews.com/8301-3460_162-
57464549/roberts-switched-views-to-uphold-health-
care-law/.
So, although it can be difficult to know precisely

what occurs in the deliberation of any particular
case, from journalistic accounts and the papers of
retired justices we can piece together the
procedures and the general nature of the Court’s
discussions. We have learned the following: First, we
know that the chief justice presides over the
deliberations. The chief calls up the case for
discussion and then presents his views about the
issues and how the case should be decided. In order
of seniority, the remaining justices state their views
and vote. By Court practice, no justice speaks a
second time until all other justices have had an
opportunity to express their views.
The level and intensity of discussion, as the justices’

notes from conference deliberations reveal, differ
from case to case. In some, it appears that the
justices had very little to say. The chief presented his
views, and the rest noted their agreement. In others,
every Court member had something to add. Whether
the discussion is subdued or lively, it is unclear to
what extent conferences affect the final decisions. It
would be unusual for a justice to enter the
conference room without having reached a tentative
position on the cases to be discussed; after all, he or
she has read the briefs and listened to oral
arguments. But the conference, in addition to oral
arguments, provides an opportunity for the justices
to size up the positions of their colleagues. This sort
of information may be important as the justices
begin the process of crafting and circulating
opinions.
Opinion Assignment and Circulation.

The conference typically leads to a tentative
outcome and vote. What happens at this point is
critical because it determines who assigns the
opinion of the Court—the Court’s only authoritative
policy statement, the only one that establishes
precedent (principles to be followed in the future
when deciding similar cases). Under Court norms,
when the chief justice votes with the majority, he
assigns the writing of the opinion. The chief may
decide to write the opinion or assign it to one of the
other justices who voted with the majority. When the
chief justice votes with the minority, the assignment
task falls to the most senior member of the Court
who voted with the majority.
In making these assignments, the chief justice (or

the senior associate justice in the majority) takes
many factors into account.18 First and perhaps
foremost, the chief tries to equalize the distribution
of the Court’s workload. This makes sense: the Court
will not run efficiently, given the burdensome nature
of opinion writing, if some justices are given many
more assignments than others. The chief may also
take into account the justices’ particular areas of
expertise, recognizing that some justices are more
knowledgeable about particular areas of the law
than others. By encouraging specialization, the chief
may also be trying to increase the quality of opinions
and reduce the time required to write them.
18 See, for example, Forrest Maltzman and Paul J.

Wahlbeck, “May It Please the Chief? Opinion
Assignments in the Rehnquist Court,” American
Journal of Political Science 40 (1996): 421–443; and
Richard J. Lazarus, “Back to ‘Business’ at the
Supreme Court: The ‘Administrative Side’ of Chief
Justice Roberts,” Harvard Law Review Forum 129
(2015): 33–92.
Along similar lines, there has been a tendency

among chief justices to self-assign especially
important cases. Warren took this step in the famous
case of Brown v. Board of Education (1954) and
Roberts did the same in the health-care case. Some
scholars and even some justices have suggested that
this is a smart strategy, if only for symbolic reasons.
As Justice Felix Frankfurter put it, “[T]here are
occasions when an opinion should carry extra weight
which pronouncement by the Chief Justice gives.”19
Finally, for cases decided by a one-vote margin
(usually 5–4), chiefs have been known to assign the
opinion to a moderate member of the majority rather
than to an extreme member. The reasoning seems to
be this: if the writer in a close case drafts an opinion
with which other members of the majority are
uncomfortable, the opinion may drive justices to the
other side, causing the majority to become a
minority. A chief justice may try to minimize this risk
by asking justices squarely in the middle of the
majority coalition to write.
19 Felix Frankfurter, “The Administrative Side of

Chief Justice Hughes,” Harvard Law Review 63
(1949): 4.
Regardless of the factors the chief considers in
making assignments, one thing is clear: the opinion
writer is a critical player in the opinion-circulation
phase, which eventually leads to the final decision of
the Court. The writer begins the process by
circulating a draft of the opinion to the others.
Once the justices receive the first draft of the

opinion, they have many options. First, they can join
the opinion, meaning that they agree with it and
want no changes. Second, they can ask the opinion
writer to make changes, that is, bargain with the
writer over the content and even the disposition—to
reverse or affirm the lower court ruling—offered in
the draft. The following memo sent from Brennan to
White is exemplary: “I’ve mentioned to you that I
favor your approach to this case and want if possible
to join your opinion. If you find the following
suggestions . . . acceptable, I can join you.”20
20 Memorandum from Justice Brennan to Justice

White, 12/9/76, re: 75-104, United Jewish
Organizations v. Carey.
Third, they can tell the opinion writer that they plan
to circulate a dissenting or concurring opinion. A
dissenting opinion means that the writer disagrees
with the disposition the majority opinion reaches and
with the rationale it invokes; a concurring opinion
generally agrees with the disposition but not with
the rationale. Finally, justices can tell the opinion
writer that they await further writings, meaning that
they want to study various dissents or concurrences
before they decide what to do.
As justices circulate their opinions and revise them—

the average majority opinion undergoes three or four
revisions in response to colleagues’ comments—
many different opinions on the same case, at various
stages of development, will be floating around the
Court over the course of several months. Because
this process is replicated for each case the Court
decides with a formal written opinion, it is possible
that scores of different opinions may be working
their way from office to office at any point in time.
Eventually, the last version of the opinion is finished,

and each justice expresses a position in writing or by
signing an opinion of another justice. This is how the
final vote is taken. When all of the justices have
declared themselves, the only remaining step is for
the Court to announce its decision, along with the
vote, to the public.
Supreme Court Decision

Making: Legalism
So far, we have examined the processes the justices
follow to reach decisions on the disputes brought
before them. We have answered basic questions
about the institutional procedures the Court uses to
carry out its responsibilities. The questions we have
not addressed concern why the justices reach
particular decisions and what forces play a role in
determining their choices.
As you might imagine, the responses to these

questions are many, but they can be categorized into
two groups. One focuses on the role of law, broadly
defined, and legal methods in determining how
justices interpret the Constitution, emphasizing,
among other things, the importance of its words,
American history and tradition, and precedent.
Judge Posner and his coauthors have referred to this
as a legalistic theory of judicial decision making.21
The other—what Posner et al. call a realistic theory
of judging—also considers nonlegalistic factors,
including the role of politics. “Politics” can take
many forms, such as the particular ideological views
of the justices, the mood of the public, and the
political preferences of the executive and legislative
branches.
21 Lee Epstein, William M. Landes, and Richard A.

Posner, The Behavior of Federal Judges: A
Theoretical and Empirical Study of Rational Choice
(Cambridge, MA: Harvard University Press, 2013).
Commentators sometimes define these two

approaches as “should” versus “do.” They say the
justices should interpret the Constitution in line with
the language of the text of the document or in
accord with precedent. On this account, the justices
are supposed to shed all of their personal biases,
preferences, and partisan attachments when they
take their seats on the bench. But, to scholars
subscribing to realistic approaches, justices do not
shed these biases, preferences, and attachments;
rather, their decisions often reflect their own politics
or the political views of those around them.
To the extent that approaches grounded in law

originated to answer the question of how justices
should decide pending disputes, we understand why
the difference between the two groups is often
described in terms of “should” versus “do.” But, for
several reasons, we ask you to consider whether the
justices actually use the “should” approaches to
reach decisions or whether they use them to
camouflage their politics. One reason is that the
justices often say they look to the founding period,
the words of the Constitution, previously decided
cases, and other legalistic approaches to resolve
disputes because they consider these to be
appropriate criteria for reaching decisions. Another
is that some scholars express agreement with the
justices, arguing that Court members cannot follow
their own personal preferences, the whims of the
public, or other non–legally relevant factors “if they
are to have the continued respect of their
colleagues, the wider [legal] community, citizens,
and leaders.” Rather, they “must be principled in
their decision-making process.”22
22 Ronald Kahn, “Institutional Norms and Supreme

Court Decision Making: The Rehnquist Court on
Privacy and Religion,” in Supreme Court Decision
Making: New Institutionalist Approaches, ed.
Cornell W. Clayton and Howard Gillman (Chicago:
University of Chicago Press, 1999), 176.
Whether they are principled in their decision making

is for you to determine as you read the cases to
come. To make this determination, you must first
develop some familiarity with both legalism and
realism. We begin here with legalism, which, in
constitutional law, centers on the methods of
constitutional interpretation that the justices
frequently say they employ. We consider some of the
more important methods and describe the rationale
for their use. These methods include originalism
(original intent and original meaning), textualism,
structural analysis, stare decisis analysis,
pragmatism, and polling other jurisdictions.23
23 For overviews (and critiques) of these and other

approaches, see Philip Bobbitt, Constitutional Fate:
Theory of the Constitution (New York: Oxford
University Press, 1982); and Lackland H. Bloom,
Methods of Constitutional Interpretation: How the
Supreme Court Reads the Constitution (New York:
Oxford University Press, 2009).
Table 1-1 provides a brief summary of each method,

using the debate over congressional term limits as
an example (in what follows, we supply more
details). To understand this debate, you should know
that several clauses in Article I of the Constitution
contain requirements that all prospective members
of Congress must meet: A senator must be at least
thirty years old, and a representative must be
twenty-five. Every member must be, when elected,
an inhabitant of the state she or he is to represent.
Finally, representatives must have been citizens of
the United States for at least seven years, and
senators must have been citizens for nine. In Powell
v. McCormack (1969) the Court held that Congress
could not add further qualifications. All duly elected
persons must be seated unless they fail to meet the
criteria set out in the qualifications clauses.
Table 1-1
Source: We adopt the framework for this table from
Eugene Volokh, “Using the Second Amendment as a
Teaching Tool—Modalities of Constitutional
Argument,”
http://www.law.ucla.edu/volokh/2amteach/interp.htm
and the briefs and opinions in U.S. Term Limits, Inc. v.
Thornton (1995).
But may the states add qualifications? Legal briefs

filed in the case, along with commentary about it,
employed a range of methods of constitutional
interpretation, as Table 1-1 shows. Notice that no
method seems entirely dispositive; rather, lawyers
used those methods that supported their side.
Ultimately, in U.S. Term Limits, Inc. v. Thornton
(1995) (excerpted in Chapter 3), the Court held that
the U.S. Constitution is the exclusive source of
qualifications for members of Congress and the
states may not add to the existing criteria (including
term limits).
Originalism
Originalism comes in several different forms, and we
discuss two here—original intent and original
understanding (or meaning)—but the basic idea is
that originalists like their Constitution “dead”: that
is, they attempt to interpret it in line with what it
meant at the time of its drafting. One form of
originalism emphasizes the intent of the
Constitution’s framers. The Supreme Court first
invoked the term intention of the framers in 1796. In
Hylton v. United States the Court said, “It was . . .
obviously the intention of the framers of the
Constitution, that Congress should possess full
power over every species of taxable property, except
exports. The term taxes is generical, and was made
use of to vest in Congress plenary authority in all
cases of taxation.”24 In Hustler Magazine v. Falwell
(1988) the Court used the same grounds to find that
cartoon parodies, however obnoxious, constitute
expression protected by the First Amendment.
24 Example cited by Boris I. Bittker in “The

Bicentennial of the Jurisprudence of Original Intent:
The Recent Past,” California Law Review 77 (1989):
235.
No doubt, justices over the years have looked to the
intent of the framers to reach conclusions about the
disputes before them.25 But why? What possible
relevance could the framers’ intentions have for
today’s controversies? Advocates of this approach
offer several answers. First, they assert that the
framers acted in a calculated manner—that is, they
knew what they were doing, so why should we
disregard their precepts? One adherent said, “Those
who framed the Constitution chose their words
carefully; they debated at great length the most
minute points. The language they chose meant
something. It is incumbent upon the Court to
determine what that meaning was.”26
25 Given the subject of this volume, we deal here

exclusively with the intent of the framers of the U.S.
Constitution and its amendments, but one also could
apply this approach to statutory construction by
considering the intent of those who drafted and
enacted the laws in question.
26 Edwin Meese III, address before the American

Bar Association, July 9, 1983, Washington, DC.
Second, it is argued that if the justices scrutinize the

intent of the framers, they can deduce
“constitutional truths,” which they can apply to
cases. Doing so, proponents say, produces neutral
principles of law and eliminates value-laden
decisions.27 Suppose the government enacted a law
prohibiting speech advocating the violent overthrow
of the government and arrested members of a
radical political party for violating it. Justices could
scrutinize this law in several ways. A liberal might
conclude, solely because of his or her liberal values,
that the First Amendment prohibits a ban on such
expression. Conservative jurists might reach the
opposite conclusion. Neither would be proper
jurisprudence in the opinion of those who advocate
an original intent approach, because both are value
laden, and ideological preferences should not creep
into the law. Rather, justices should examine the
framers’ intent as a way to keep the law value-free.
Applying this approach to free speech, one adherent
argues, leads to a clear, unbiased result:
27 See, for example, Robert Bork, “Neutral

Principles and Some First Amendment Problems,”
Indiana Law Journal 47 (1971): 1–35.
Speech advocating violent overthrow is . . . not

[protected] “political speech” . . . as that term
must be defined by a Madisonian system of
government. It is not political speech because it
violates constitutional truths about processes
and because it is not aimed at a new definition of
political truth by a legislative majority.28
28 Ibid., 31.
Finally, supporters of this mode of analysis argue
that it fosters stability in law. They maintain that the
law today is far too fluid, that it changes with the
ideological whims of the justices, creating havoc for
those who must interpret and implement Court
decisions. Lower court judges, lawyers, and even
ordinary citizens do not know if today’s rights will
still exist tomorrow. Following a jurisprudence of
original intent eliminates such confusion because it
provides a principle that justices can follow
consistently.
The last justification applies with equal force to a

second form of originalism: original meaning or
understanding. Justice Antonin Scalia explained the
difference between this approach and
intentionalism:
The theory of originalism treats a constitution

like a statute, and gives it the meaning that its
words were understood to bear at the time they
were promulgated. You will sometimes hear it
described as the theory of original intent. You
will never hear me refer to original intent,
because as I say I am first of all a textualist, and
secondly an originalist. If you are a textualist,
you don’t care about the intent, and I don’t care
if the framers of the Constitution had some
secret meaning in mind when they adopted its
words. I take the words as they were
promulgated to the people of the United States,
and what is the fairly understood meaning of
those words.29
29 Antonin Scalia, “A Theory of Constitutional

Interpretation,” remarks at the Catholic University
of America, October 18, 1996, Washington, DC.
By “textualist,” Justice Scalia meant that he looked

at the words of whatever constitutional provision he
was interpreting and interpreted them in line with
what they would have ordinarily meant to the people
of the time in which they were written.30 This was
the “originalist” aspect of his method of interpreting
the Constitution. So, although intentionalism focuses
on the intent behind phrases, an understanding or
meaning approach emphasizes “the meaning a
reasonable speaker of English would have attached
to the words, phrases, sentences, etc. at the time the
particular provision was adopted.”31
30 See Antonin Scalia, “Originalism: The Lesser

Evil,” University of Cincinnati Law Review 57
(1989): 849–865.
31 Randy E. Barnett, “The Original Meaning of the

Commerce Clause,” University of Chicago Law
Review 68 (2001): 105.
Even so, as we suggested earlier, the merits of this

approach are similar to those of intentionalism. By
focusing on how the framers defined their own
words and then applying their definitions to disputes
over those constitutional provisions containing them,
this approach seeks to generate value-free and
ideology-free jurisprudence. Indeed, one of the most
important developers of this approach, historian
William W. Crosskey, specifically embraced it to
counter “sophistries” such as the idea that the
Constitution is a living document whose meaning
should evolve over time.32
32 W. W. Crosskey, Politics and the Constitution in

the History of the United States (Chicago: University
of Chicago Press, 1953), 1172–1173.
Chief Justice William H. Rehnquist’s opinion in Nixon

v. United States (1993) (excerpted in Chapter 2)
provides a particularly good illustration of the value
of this approach. Here, the Court considered a
challenge to the procedures the Senate used to
impeach a federal judge, Walter L. Nixon Jr. Rather
than the entire Senate trying the case, a special
twelve-member committee heard it and reported to
the full body. Nixon argued that this procedure
violated Article I of the Constitution, which states,
“The Senate shall have the sole Power to try all
Impeachments.” But before addressing Nixon’s
claim, Rehnquist sought to determine whether
courts had any business resolving such disputes. He
used a meaning-of-the-words approach to consider
the word try in Article I:
Petitioner argues that the word “try” in the first
sentence imposes by implication an additional
requirement on the Senate in that the
proceedings must be in the nature of a judicial
trial. . . . There are several difficulties with this
position which lead us ultimately to reject it. The
word “try,” both in 1787 and later, has
considerably broader meanings than those to
which petitioner would limit it. Older
dictionaries define try as “[t]o examine” or “[t]o
examine as a judge.” See 2 S. Johnson, A
Dictionary of the English Language (1785). In
more modern usage the term has various
meanings. For example, try can mean “to
examine or investigate judicially,” “to conduct
the trial of,” or “to put to the test by experiment,
investigation. . . .” Webster’s Third New
International Dictionary (1971).
Nixon is far from the only example of originalism

that you will encounter in the pages to come. Indeed,
many Supreme Court opinions contemplate the
original intent of the framers or the original meaning
of the words, and at least one justice on the current
Court—Clarence Thomas—regularly invokes forms of
originalism to answer questions ranging from limits
on campaign spending to the appropriate balance of
power between the states and the federal
government.
Such a jurisprudential course would have dismayed
Thomas’s predecessor, Thurgood Marshall, who did
not believe that the Constitution’s meaning was
“forever ‘fixed’ at the Philadelphia Convention.” And,
in light of the 1787 Constitution’s treatment of
women and blacks, Marshall did not find “the
wisdom, foresight, and sense of justice exhibited by
the framers particularly profound.”33
33 Thurgood Marshall, “Reflections on the

Bicentennial of the United States Constitution,”
Harvard Law Review 101 (1987): 1.
Marshall has not been the only critic of originalism

(whatever the form); the approach has generated
many other critics over the years. One reason for the
controversy is that originalism became highly
politicized in the 1980s. Those who advocated it,
particularly Edwin Meese, an attorney general in
President Ronald Reagan’s administration, and
defeated Supreme Court nominee Robert Bork, were
widely viewed as conservatives who were using the
doctrine to promote their own ideological ends.
Others joined Marshall, however, in raising several

more-concrete objections to this jurisprudence.
Justice Brennan in 1985 argued that if the justices
employed only this approach, the Constitution would
lose its applicability and be rendered useless:
We current Justices read the Constitution in the
only way that we can: as Twentieth Century
Americans. We look to the history of the time of
the framing and to the intervening history of
interpretation. But the ultimate question must
be, what do the words of the text mean in our
time? For the genius of the Constitution rests not
in any static meaning it might have had in a
world that is dead and gone, but in the
adaptability of its great principles to cope with
current problems and current needs.34
34 William J. Brennan Jr., address to the Text and

Teaching Symposium, Georgetown University,
October 12, 1985, Washington, DC.
Some scholars have echoed the sentiment. C.

Herman Pritchett noted that originalism can “make a
nation the prisoner of its past, and reject any
constitutional development save constitutional
amendment.”35
35 C. Herman Pritchett, Constitutional Law of the

Federal System (Englewood Cliffs, NJ: Prentice Hall,
1984), 37.
Another criticism often leveled at intentionalism is

that the Constitution embodies not one intent, but
many. Jeffrey A. Segal and Harold J. Spaeth pose
some interesting questions: “Who were the Framers?
All fifty-five of the delegates who showed up at one
time or another in Philadelphia during the summer
of 1787? Some came and went. . . . Some probably
had not read [the Constitution]. Assuredly, they were
not all of a single mind.”36 Then there is the
question of what sources the justices should use to
divine the original intentions of the framers. They
could look at the records of the constitutional
debates and at the founders’ journals and papers,
but some of the documents that pass for “records” of
the Philadelphia convention are jumbled, and some
are even forged. During the debates, the secretary
became confused and thoroughly botched the
minutes. James Madison, who took the most
complete and probably the most reliable notes on
what was said, edited them after the convention
adjourned. Perhaps this is why in 1952 Justice
Robert H. Jackson wrote,
36 Jeffrey A. Segal and Harold J. Spaeth, The

Supreme Court and the Attitudinal Model Revisited
(New York: Cambridge University Press, 2002), 68.
See also William Anderson, “The Intention of the
Framers: A Note on Constitutional Interpretation,”
American Political Science Review 49 (1955): 340–
352.
Just what our forefathers did envision, or would

have envisioned had they foreseen modern
conditions, must be divined from materials
almost as enigmatic as the dreams Joseph was
called upon to interpret for Pharaoh. A century
and a half of partisan debate and scholarly
specification yields no net result but only
supplies more or less apt quotations from
respected sources on each side of any question.
They largely cancel each other.37
37 Youngstown Sheet & Tube Co. v. Sawyer (1952).
Likewise, it may be just as difficult for justices to

establish the original meaning of the words as it is
for them to establish the original intent behind them.
Attempting to understand what the framers meant
by each word can be a far more daunting task in the
run-of-the-mill case than it was for Rehnquist in
Nixon. It might even require the development of a
specialized dictionary, which could take years of
research to compile and still not have any value—
determinate or otherwise. Moreover, scholars argue,
even if we could create a dictionary that would help
shed light on the meanings of particular words, it
would tell us little about the significance of such
constitutional phrases as “due process of law” and
“cruel and unusual punishment.”38 Some say the
same of other sources to which the justices could
turn, such as the profusion of pamphlets (heavily
outnumbering the entire population) that argued for
and against ratification of the new Constitution. But
this mass of literature demonstrates not one but
maybe dozens of understandings of what it all
meant. In other words, the documents often fail to
provide a single clear message.
38 Crosskey did, in fact, develop “a specialized
dictionary of the eighteenth-century word-usages,
and political and legal ideas.” He believed that such
a work was “needed for a true understanding of the
Constitution.” But some scholars have been skeptical
of the understandings to which it led him, as many
were highly “unorthodox.” Bittker, “The Bicentennial
of the Jurisprudence of Original Intent,” 237–238.
Some applauded Crosskey’s conclusions. Charles E.
Clark, for example, in “Professor Crosskey and the
Brooding Omnipresence of Erie-Tompkins,”
University of Chicago Law Review 21 (1953): 24,
called it “a major scholastic effort of our times.”
Others were appalled. See Julius Goebel Jr., “Ex
Parte Clio,” Columbia Law Review 54 (1954): 450.
Goebel wrote, “[M]easured by even the least
exacting of scholarly standards, [the work] is in the
reviewer’s opinion without merit.”
Textualism
On the surface, textualism resembles original intent:
it values the Constitution itself as a guide above all
else. But this is where the similarity ends. In an
effort to prevent the infusion of new meanings from
sources outside the text of the Constitution,
adherents of original intent seek to deduce
constitutional truths by examining the intended
meanings behind the words. Textualists, however,
look no farther than the words of the Constitution to
reach decisions.
This may seem similar to the original meaning
approach we just considered, and there is certainly a
commonality between the two approaches: both
place emphasis on the words of the Constitution. But
under the original meaning approach (Scalia’s brand
of original-textualism), it is fair game for justices to
go beyond the literal meaning of the words and
consider what they would have ordinarily meant to
the people of that time. Other textualists, those we
might call pure textualists or literalists, believe that
justices ought to consider only the words in the
constitutional text, and the words alone.
And it is these distinctions—between original intent

and even meaning versus pure textualism—that can
lead to some radically different results. To use the
example of speech aimed at overthrowing the U.S.
government, originalists might hold that the
meaning or intent behind the First Amendment
prohibits such expression. Those who consider
themselves pure literalists, by contrast, would
scrutinize the words of the First Amendment
—“Congress shall make no law . . . abridging the
freedom of speech”—and construe them literally: no
law means no law. Therefore, any statute infringing
on speech, even a law that prohibits expression
advocating the overthrow of the government, would
violate the First Amendment.
Originalism and pure textualism sometimes overlap.

When it comes to the right to privacy, particularly
where it is leveraged to create other rights, such as
legalized abortion, some originalists and literalists
would reach the same conclusion: it does not exist.
The former would argue that it was not the intent of
the framers to confer privacy; the latter, that
because the Constitution does not expressly mention
this right, it does not exist.
Textual analysis is quite common in Supreme Court

opinions. Many, if not most, look to the Constitution
and ask what it says about the matter at hand,
though Hugo Black is most closely associated with
this view—at least in its pure form. During his thirty-
four-year tenure on the Court, Justice Black
continually emphasized his literalist philosophy. His
own words best describe his position:
My view is, without deviation, without exception,

without any ifs, buts, or whereases, that freedom
of speech means that government shall not do
anything to people . . . either for the views they
have or the views they express or the words they
speak or write. Some people would have you
believe that this is a very radical position, and
maybe it is. But all I am doing is following what
to me is the clear wording of the First
Amendment. . . . As I have said innumerable
times before I simply believe that “Congress
shall make no law” means Congress shall make
no law. . . . Thus we have the absolute command
of the First Amendment that no law shall be
passed by Congress abridging freedom of speech
or the press.39
39 Hugo L. Black, A Constitutional Faith (New York:

Knopf, 1969), 45–46.
Why did Black advocate literalism? Like originalists,

he viewed it as a value-free form of jurisprudence. If
justices looked only at the words of the Constitution,
their decisions would not reflect ideological or
political values, but rather those of the document.
Black’s opinions provide good illustrations. Although
he almost always supported claims of free speech
against government challenges, he refused to extend
constitutional protection to expression that was not
strictly speech. He believed that activities such as
flag burning and the wearing of armbands, even if
calculated to express political views, fell outside the
protections of the First Amendment.
Moreover, literalists maintain that their approach is

superior to the doctrine of original intent. They say
that some provisions of the Constitution are so
transparent that were the government to violate
them, justices could “almost instantaneously and
without analysis identify the violation”; they would
not need to undertake an extensive search to
uncover the framers’ understanding.40 Often-cited
examples include the “mathematical” provisions of
the Constitution, such as the commands that the
president’s term be four years and that the president
be at least thirty-five years old.
40 We draw this material and the related discussion

to follow from Mark V. Tushnet, “A Note on the
Revival of Textualism,” Southern California Law
Review 58 (1985): 683.
Despite the seeming logic of these justifications and

the high regard some scholars have for Black, many
have actively attacked his brand of jurisprudence.
One complaint is that it led Black to take some
rather anomalous positions, particularly in cases
involving the First Amendment. Most analysts and
justices—even those considered liberal—agree that
obscene materials fall outside First Amendment
protection and that states can prohibit the
dissemination of such materials. But, in opinion after
opinion, Black clung to the view that no publication
could be banned on the grounds that it was obscene.
A second objection is that literalism can result in

inconsistent outcomes. Was it sensible for Black to
hold that obscenity is constitutionally protected
while other types of expression, such as the
desecration of the flag, are not?
Segal and Spaeth raise yet a third problem with

literalism: it presupposes a precision in the English
language that does not exist. Not only may words,
including those used by the framers, have multiple
meanings, but also the meanings themselves may be
contrary. As Segal and Spaeth note, the common
legal word sanction means both to punish and to
approve.41 How, then, would a literalist construe it?
41 Segal and Spaeth, The Supreme Court and the

Attitudinal Model Revisited, 54.
Finally, even when the words are crystal clear, pure

textualism may not be on firm ground. Despite the
precision of the mathematical provisions, Judge
Frank Easterbrook has suggested that they, like all
the others, are loaded with “reasons, goals, values,
and the like.”42 The framers might have imposed the
presidential age limit “as a percentage of average
life expectancy,” to ensure that presidents have a
good deal of practical political experience before
ascending to the presidency and little opportunity to
engage in politicking after they leave, or “as a
minimum number of years after puberty,” to
guarantee that they are sufficiently mature while not
unduly limiting the pool of eligible candidates. Seen
in this way, the words “thirty five years” in the
Constitution may not have much value: they may be
“simply the framers’ shorthand for their more
complex policies, and we could replace them by ‘fifty
years’ or ‘thirty years’ without impairing the
integrity of the constitutional structure.”43 More
generally, as Justice Oliver Wendell Holmes Jr. once
put it, “A word is not a crystal, transparent and
unchanged, it is the skin of a living thought and may
vary greatly in color and content according to the
circumstances and the time in which it is used.”44
42 Frank Easterbrook, “Statutes’ Domains,”

University of Chicago Law Review 50 (1983): 536.
43 Tushnet, “A Note on the Revival of Textualism,”

686.
44 Towne v. Eisner (1918).
Structural Reasoning
Textualist and originalist approaches tend to focus
on particular words or clauses in the Constitution.
Structural reasoning suggests that interpretation of
these clauses should follow from, or at least be
consistent with, overarching structures or governing
principles established in the Constitution—most
notably, federalism, the separation of powers, and
the democratic process. Interestingly enough, these
terms do not appear in the Constitution, but they
“are familiar to any student of constitutional law”45
—and you will become conversant in them too as you
work your way through the material in the pages to
follow. The idea behind structuralism is that these
structures or relationships are so important that
judges and lawyers should read the Constitution to
preserve them.
45 Michael J. Gerhardt, Stephen M. Griffin, and
Thomas D. Rowe Jr., Constitutional Theory:
Arguments and Perspectives, 3rd ed. (Newark, NJ:
LexisNexis, 2007), 321.
There are many famous examples of structural

analyses, especially, as you would expect, in
separation of powers and federalism cases. Charles
Black, a leading proponent of structuralism, for
example, points to McCulloch v. Maryland (1819)
(excerpted in Chapters 3 and 6). Among the
questions the Court addressed was whether a state
could tax a federal entity—the Bank of the United
States. Even though states have the power to tax,
Chief Justice John Marshall for the Court said the
answer is “no,” because the states could use this
power to extinguish the bank. If states could do this,
they would damage what Marshall believed to be
“the warranted relational properties between the
national government and the government of the
states, with the structural corollaries of national
supremacy.”46
46 Charles L. Black Jr., Structure and Relationship in

Constitutional Law (Baton Rouge: Louisiana State
University Press, 1969), 15.
Here, Marshall invalidated a state action aimed at

the federal government. Throughout this book, you
will see the reverse: opinions that use structural
arguments about the relationship between state
power and federal power to invalidate federal action
on the ground that it impinges on state functions.
National League of Cities v. Usery (1976) and
Printz v. United States (1997) are but two examples.
Despite their frequent appearance in separation of

powers and federalism cases, structural arguments
have their weaknesses. Primarily, as Philip Bobbitt
notes, “[W]hile we all can agree on the presence of
the various structures, we [bicker] when called upon
to decide whether a particular result is necessarily
inferred from their relationship.”47 The idea here is
that structural analysis does not necessarily lead to a
single answer in every case. Immigration and
Naturalization Service v. Chadha (1983), involving
the constitutionality of the legislative veto (used by
Congress to veto decisions made by the executive
branch), provides an example. Writing for the
majority, Chief Justice Burger held that such a veto
violated the constitutional doctrine of separation of
powers; it eroded the “carefully defined limits of the
power of each Branch” established by the framers.
Writing in dissent, Justice White, too, relied in part
on structural analysis, but he came to a very
different conclusion: the legislative veto fit
compatibly with the separation of powers system
because it ensured that Congress could continue to
play “its role as the Nation’s lawmaker” in the wake
of the executive branch’s growth in size.
47 Bobbitt, Constitutional Fate, 84.

The gap between Burger and White reflects, as we
shall see, disagreement over the very nature of the
separation of powers system, and similar
disagreements arise over federalism. Hence, even
when justices reason from structure, it is possible,
even likely, that they will reach different conclusions.
Stare Decisis
Translated from Latin, stare decisis means “let the
decision stand.” What this concept suggests is that,
as a general rule, jurists should decide cases on the
basis of previously established rulings, or precedent.
In shorthand terms, judicial tribunals should honor
prior rulings.
The benefits of this approach are fairly evident. If

justices rely on past cases to resolve current cases,
some scholars argue, the law they generate becomes
predictable and stable. Chief Justice Harlan Fiske
Stone acknowledged the value of precedent in a
somewhat more ironic way: “The rule of stare decisis
embodies a wise policy because it is often more
important that a rule of law be settled than that it be
settled right.”48 The message, however, is the same:
if the Court adheres to past decisions, it provides
some direction to all who labor in the legal
enterprise. Lower court judges know how they
should and should not decide cases, lawyers can
frame their arguments in accord with the lessons of
past cases, legislators understand what they can and
cannot enact or regulate, and so forth.
48 United States v. South-Eastern Underwriters

Association (1944).
Precedent, then, can be an important and useful

factor in Supreme Court decision making. Along
these lines, it is interesting to note that the Court
rarely reverses itself—it has done so fewer than
three hundred times over its entire history. Even
modern-day Courts, as Table 1-2 shows, have been
loath to overrule precedents. In the 65 terms
covered in the table, the Court overturned
precedents in only 166 cases, or, on average, about
2.5 cases per term. What is more, the justices almost
always cite previous rulings in their decisions;
indeed, it is the rare Court opinion that does not
mention other cases.49 Finally, several scholars have
verified that precedent helps to explain Court
decisions in some areas of the law. In one study,
analysts found that the Court reacted quite
consistently to legal doctrine presented in more than
fifteen years of death penalty litigation. Put
differently, using precedent from past cases, the
researchers could correctly categorize the outcomes
(for or against the death penalty) in 75 percent of
sixty-four cases decided since 1972.50 Scholarly
work considering precedent in search-and-seizure
litigation has produced similar findings.51
49 See Jack Knight and Lee Epstein, “The Norm of
Stare Decisis,” American Journal of Political Science
40 (1996): 1018–1035.
50 Tracey E. George and Lee Epstein, “On the

Nature of Supreme Court Decision Making,”
337.
51 Jeffrey A. Segal, “Predicting Supreme Court

Cases Probabilistically: The Search and Seizure
Cases, 1962–1984,” American Political Science
Review 78 (1984): 891–900.
Despite these data, we should not conclude that the

justices necessarily follow this approach. Many
allege that judicial appeal to precedent often is mere
window dressing, used to hide ideologies and values,
rather than a substantive form of analysis. There are
several reasons for this allegation.
First, although explicit overrulings, which Table 1-2

shows, are certainly departures from prior decisions,
they are not the only or even usual method for
extinguishing “unloved precedents.”52 The Court
also can question, limit, criticize, or otherwise
distinguish the unloved precedent—and, in fact, does
so in nearly 30 percent of its cases.53 When the
justices attack a prior decision in one of these ways,
the effect on the precedent can be just as
devastating as when they overrule it, as you will see
in some of the cases to come. Compare, for example,
the decisions in Watkins v. United States (1957) and
Barenblatt v. Watkins (1959)—both dealing with the
rights of witnesses testifying before congressional
committees (and both excerpted in Chapter 3).
Although the Court did not overrule Watkins in
Barenblatt, it made it more difficult for witnesses to
refuse to answer questions.
52 Richard A. Posner, How Judges Think

(Cambridge, MA: Harvard University Press, 2010),
277.
53 Lee Epstein, William M. Landes, and Adam

Liptak, “The Decision to Depart (or Not) from
Constitutional Precedent,” NYU Law Review 90
(2015): 1115–1156.
Table 1-2
Source: Calculated by the authors from data in the

U.S. Supreme Court Database
(http://supremecourtdatabase.org).
Second, the Supreme Court has generated so much

precedent that it is usually possible for justices to
find support for any conclusion. By way of proof,
turn to almost any page of any opinion excerpted in
this book and you probably will find the writers—
both for the majority and for the dissenters—citing
precedent.
Third, it may be difficult to locate the rule of law

emerging in a majority opinion. To decide whether a
previous decision qualifies as a precedent, judges
and commentators often say, one must strip away the
nonessentials of the case and expose the basic
reasons for the Supreme Court’s decision. This
process is generally referred to as “establishing the
principle of the case,” or the ratio decidendi. Other
points made in a given opinion—obiter dicta (any
expression in an opinion that is unnecessary to the
decision reached in the case or that relates to a
factual situation other than the one before the court)
—have no legal weight, and judges are not bound by
them. It is up to courts to separate the ratio
decidendi from dicta. Not only is this task difficult,
but it also provides a way for justices to skirt
precedent with which they do not agree. All they
need to do is declare parts of it to be dicta. Or
justices can brush aside even the ratio decidendi
when it suits their interests in the ways we noted
earlier (e.g., limiting or distinguishing the
precedent). Because the Supreme Court, at least
today, is so selective about the cases it decides, it
probably would not take a case for which clear
precedent existed. Even in the past, two cases that
were precisely identical probably would not be
accepted. What this means is that justices can
always deal with “problematic” ratio decidendi by
distinguishing the case at hand from those that have
already been decided.
A scholarly study of the role of precedent in

Supreme Court decision making offers a fourth
reason. Two political scientists hypothesized that if
precedent matters, it ought to affect the subsequent
decisions of members of the Court. If a justice
dissented from a decision establishing a particular
precedent, the same justice would not dissent from a
subsequent application of the precedent. But that
was not the case. Of the eighteen justices included in
the study, only two occasionally subjugated their
preferences to precedent.54
54 Jeffrey A. Segal and Harold J. Spaeth, “The

Influence of Stare Decisis on the Votes of U.S.
Supreme Court Justices,” American Journal of
Political Science 40 (1996): 971–1003.
Finally, and most interesting, many justices

recognize the limits of stare decisis in cases
involving constitutional interpretation. Indeed, the
justices often say that when constitutional issues are
involved, stare decisis is a less rigid rule than it
might normally be. This view strikes some as
prudent, for the Constitution is difficult to amend,
and judges make mistakes or they come to see
problems quite differently as their perspectives
change. As Justice Louis D. Brandeis famously wrote,
Stare decisis is usually the wise policy. . . . But in
cases involving the Federal Constitution, where
correction through legislative action is
practically impossible, this Court has often
overruled its earlier decisions.55
55 Justice Brandeis, dissenting in Burnet v.

Coronado Oil & Gas Co. 285 U.S. 393 (1932).
Whether the justices actually follow this idea—that
stare decisis policy is more flexible in constitutional
cases—is a matter of debate. See Epstein, Landes,
and Liptak, “Departing from Precedent.”
Pragmatism
Whatever the role of precedent in constitutional
interpretation, it is clear that the Court does not
always feel bound to follow its own precedent.
Perhaps a ruling was in error. Or perhaps
circumstances have changed and the justices wish to
announce a rule consistent with the new
circumstances, even if it is inconsistent with the old
rule. The justices might even consider the
consequences of overturning a precedent or more
generally of interpreting a precedent in a particular
way. This approach is known as pragmatic analysis,
and it entails appraising alternative rulings by
forecasting their consequences. Presumably, justices
who engage in this form of analysis will select
among plausible constitutional interpretations the
one that has the best consequences and reject those
that have the worst.
Pragmatism makes an appearance in many Supreme

Court opinions, occasionally in the form of an
explicit cost-benefit analysis in which the justices
attempt to create rules, or analyze existing rules, so
that they maximize benefits and minimize costs.
Consider the exclusionary rule, which excludes from
criminal proceedings evidence obtained in violation
of the Fourth Amendment. Claims that the rule
hampers the conviction of criminals have affected
judicial attitudes, as Justice White frankly admitted
in United States v. Leon (1984): “The substantial
social costs exacted by the exclusionary rule for the
vindication of Fourth Amendment rights have long
been a source of concern.” In Leon a majority of the
justices applied a “cost-benefit” calculus to justify a
“good faith” seizure by police on an invalid search
warrant.
When you encounter cases that engage in this sort of

analysis, you might ask the same questions raised by
some critics of the approach: By what account of
values should judges weigh costs and benefits? How
do they take into account the different people whom
a decision may simultaneously punish and reward?
Polling Other Jurisdictions

Aside from turning to originalism, textualism, or
other historical approaches, a justice might probe
English traditions or early colonial or state practices
to determine how public officials of the times—or of
contemporary times—interpreted similar words or
phrases.56 The Supreme Court has frequently used
such evidence. When Wolf v. Colorado (1949) asked
the Court whether the Fourth Amendment barred
use in state courts of evidence obtained through an
unconstitutional search, Justice Felix Frankfurter
surveyed the law in all the states and in ten
jurisdictions within the British Commonwealth. He
used the information to bolster a conclusion that
although the Constitution forbade unreasonable
searches and seizures, it did not prohibit state
officials from using such questionably obtained
evidence against a defendant.
56 We adopt the material in this section from Walter

F. Murphy, C. Herman Pritchett, Lee Epstein, and
Jack Knight, Courts, Judges, and Politics, 6th ed.
(New York: McGraw-Hill, 2006).
In 1952, however, Rochin v. California confronted the

justices with the question of whether a state could
use evidence it had obtained from a defendant by
pumping his stomach—evidence admissible in the
overwhelming majority of states. This time
Frankfurter declined to call the roll. Instead, he
declared that gathering evidence by a stomach pump
was “conduct that shocks the conscience” whose
fruits could not be used in either state or federal
courts. When in 1961 Mapp v. Ohio overruled Wolf
and held that state courts must exclude all
unconstitutionally obtained evidence, the justices
again surveyed the field. For the Court, Justice Tom
C. Clark said, “While in 1949 almost two-thirds of
the States were opposed to the exclusionary rule,
now, despite the Wolf Case, more than half of those
since passing upon it, by their own legislative or
judicial decision, have wholly or partly adopted or
adhered to the [rule].”
The point of these examples is not that Frankfurter

or the Court was inconsistent, but rather that the
method itself—although it offers insights—is far from
foolproof. First, the Constitution of 1787, as it
initially stood and has since been amended, rejects
many English and some colonial and state practices.
Second, even a steady stream of precedents from the
states may signify nothing more than the fact that
judges, too busy to give the issue much thought,
imitated each other under the rubric of stare decisis.
Third, if justices are searching for original intent or
understanding, it is difficult to imagine the relevance
of what was in the minds of people in the eighteenth
century to state practices in the twentieth and
twenty-first centuries. Polls are useful if we want to
know what other judges, now and in the recent past,
have thought about the Constitution, writ large or
small. Nevertheless, they say nothing about the
correctness of those thoughts—and the correctness
of a lower court’s interpretation may be precisely
the issue before the Supreme Court.
Despite these criticisms, the Supreme Court
continues to take into account the practices of other
U.S. jurisdictions, just as courts in other societies
occasionally look to their counterparts elsewhere—
including the U.S. Supreme Court—for guidance. In a
landmark 2017 decision, the Supreme Court of India
held, for the first time, that privacy is a core
constitutional right.57 In so doing, the justices drew
heavily on the U.S. Supreme Court’s privacy
jurisprudence. The South African ruling in The State
v. Makwanyane (1995) provides a different example.
To determine whether the death penalty violated its
nation’s constitution, South Africa’s Constitutional
Court surveyed practices elsewhere, including those
in the United States. But, unlike the Indian Supreme
Court, the justices decided not to follow the path
taken by the U.S. Supreme Court, ruling instead that
their constitution prohibited the state from imposing
capital punishment. Rejection of U.S. practice was
made all the more interesting in light of a speech
Justice Harry Blackmun delivered only a year before
Makwanyane.58 In that address, Blackmun chastised
his colleagues for failing to take into account a
decision of South Africa’s court to dismiss a
prosecution against a person kidnapped from a
neighboring country. This ruling, Blackmun argued,
was far more faithful to international conventions
than the one the U.S. Supreme Court had reached in
United States v. Alvarez-Machain (1992), which
permitted U.S. agents to abduct a Mexican national.
57 Puttaswamy v. Union of India (2017).
58 “Justice Blackmun Addresses the ASIL Annual

Dinner,” American Society of International Law
Newsletter, March 1994.
Alvarez-Machain aside, at least some U.S. justices

think it worthwhile to consider the rulings of courts
abroad and practices elsewhere as they interpret the
U.S. Constitution. This consideration is particularly
evident in opinions regarding capital punishment;
justices opposed to this form of retribution often
point to the nearly one hundred countries that have
abolished the death penalty.
Whether this practice will become more widespread

or filter into other legal areas is an intriguing
question, and one that already has prompted debate
among the justices. Although some justices support
efforts to expand their horizons beyond U.S.
borders,59 others apparently agree with Justice
Scalia, who argued that “the views of other nations,
however enlightened the Justices of this court may
think them to be, cannot be imposed upon Americans
through the Constitution.”60
59 See, for example, Stephen L. Breyer, The Court

and the World (New York: Knopf, 2015).
60 Thompson v. Oklahoma (1987); see also Scalia’s

dissent in Atkins v. Virginia (2002).
Supreme Court Decision
Making: Realism
So far, our discussion has barely mentioned the
justices’ ideologies, their political party affiliations,
or their personal views on various public policy
issues. The reason is that legal approaches to
Supreme Court decision making do not admit that
these factors affect the way the Court arrives at its
decisions. Instead, they suggest that justices divorce
themselves from their personal and political biases
and settle disputes based on the law. The approaches
we consider here—recall, what some call more
realistic or nonlegalistic approaches—posit a quite
different vision of Supreme Court decision making.
They argue that some of the forces that drive the
justices are anything but legal in composition, and
that it is unrealistic to expect justices to shed all
their preferences and values or to ignore public
opinion when they put on their black robes. Indeed,
the justices are people like all of us, with strong and
pervasive political biases and partisan attachments.
Because justices usually do not admit that they are

swayed by the public or that they vote according to
their ideologies, our discussion of realism is distinct
from that of legalism. Here you will find little in the
way of supporting statements from Court members,
for it is an unusual justice indeed who admits to
following anything but precedent, the intent of the
framers, the words of the Constitution, and the like
in deciding cases. Instead, we offer the results of
decades of research by scholars who think that
political and other extralegal factors shape judicial
decisions. We organize these nonlegalistic
explanations into three categories: (1) preference-
based approaches, (2) strategic approaches, and (3)
external forces. As you read the cases to come, you
will have many opportunities to consider whether
these scholarly accounts are persuasive.
Preference-Based Approaches
Preference-based approaches see the justices as
rational decision makers who hold certain values
they would like to see reflected in the outcomes of
Court cases. Two prevalent preference-based
approaches stress the importance of judicial
attitudes and roles.
Judicial Attitudes.
Attitudinal approaches emphasize the importance of
the justices’ political ideologies. Typically, scholars
examining the ideologies of the justices discuss the
degree to which a justice is conservative or liberal—
as in “Justice X holds conservative views on issues of
criminal law” or “Justice Y holds liberal views on
free speech.” This school of thought maintains that
when a case comes before the Court each justice
evaluates the facts of the dispute and arrives at a
decision consistent with his or her personal ideology.
C. Herman Pritchett was one of the first scholars to
conduct a systematic study of the importance of the
justices’ personal attitudes.61 Examining the Court
during the 1930s and 1940s, Pritchett observed that
dissent had become an institutionalized feature of
judicial decisions. During the early 1900s, in no
more than 20 percent of the cases did one or more
justices file dissenting opinions; by the 1940s that
figure was more than 60 percent. If precedent and
other legal factors were the only factors driving
Court rulings, why did various justices interpreting
the same legal provisions consistently reach
different results? Pritchett concluded that the
justices were not following precedent but instead
were “motivated by their own preferences.”62
61 C. Herman Pritchett, The Roosevelt Court (New

York: Macmillan, 1948); and Pritchett, “Divisions of
Opinion among Justices of the U.S. Supreme Court,
1939–1941,” American Political Science Review 35
(1941): 890–898.
62 Pritchett, The Roosevelt Court, xiii.
Pritchett’s findings touched off an explosion of

research on the influence of attitudes on Supreme
Court decision making.63 Much of this scholarship
describes the liberal or conservative leanings of the
various justices and attempts to predict their voting
behavior based on their attitudinal preferences. To
understand some of these differences, consider
Figure 1-4, which presents the voting records of the
present chief justice, John Roberts, and his three
immediate predecessors: Earl Warren, Warren
Burger, and William Rehnquist. The figure shows the
percentage of times each voted in the liberal
direction in two different issue areas: civil liberties
and economic liberties.
63 The classic works in this area are Pritchett, The

Roosevelt Court; Glendon Schubert, The Judicial
Mind (Evanston, IL: Northwestern University Press,
1965); and David W. Rohde and Harold J. Spaeth,
Supreme Court Decision Making (San Francisco: W.
H. Freeman, 1976). For a lucid, modern-day
treatment, see Segal and Spaeth, The Supreme
Court and the Attitudinal Model Revisited, chaps. 3
and 8.
The data show dramatic differences among these

chiefs, especially in cases involving civil liberties.
Cases in this category include disputes over issues
such as the First Amendment freedoms of religion,
speech, and the press; the right to privacy; the rights
of the criminally accused; and illegal discrimination.
The liberal position is a vote in favor of the
individual who is claiming a denial of these basic
rights. Warren supported the liberal side in almost
80 percent of cases; Burger, Rehnquist, and Roberts
did so in fewer than 40 percent of such cases.
Figure 1-4 Percentage of Cases in Which Each Chief

Justice Voted in the Liberal Direction, 1953–2017
Terms
Source: Calculated by the authors from data in

the U.S. Supreme Court Database
(http://supremecourtdatabase.org), including
only orally argued non–per curiam decisions.
Economics cases involve challenges to the

government’s authority to regulate the economy. The
liberal position supports an active role by the
government in controlling business and economic
activity. Here too the four chief justices show
different ideological positions. Warren was the most
liberal of the four, ruling in favor of government
regulatory activity in better than 80 percent of the
cases, while Burger, Rehnquist, and Roberts
supported such government activity in fewer than
half. In short, within particular issue areas,
individual justices tend to show consistent
ideological predispositions.
Moreover, we often hear that a particular Court is
ideologically predisposed toward one side or the
other. In a May 29, 2002, opinion piece, the New
York Times said, “Chief Justice William Rehnquist
and his fellow conservatives have made no secret of
their desire to alter the balance of federalism,
shifting power from Washington to the states.” Three
years later, on September 5, 2005, the Times
headlined the chief justice’s obituary “William H.
Rehnquist, Architect of Conservative Court, Dies at
80.” After President George W. Bush appointed
Roberts to replace Rehnquist and a new associate
justice, Samuel Alito, the press was quick to label
both “reliable members of the conservative bloc.”
Journalists said much the same of Donald Trump’s
appointee, Neil Gorsuch. And Sonia Sotomayor and
Elena Kagan, President Barack Obama’s appointees,
are often deemed “liberal.” Sometimes an entire
Court era is described in terms of its political
preferences, such as the “liberal” Warren Court or
the “conservative” Roberts Court. The data in Figure
1-5 confirm that these labels have some basis in fact.
Looking at the two lines from left to right, from the
1950s through the early 2000s, note the mostly
downward trend, indicating the increased
conservatism of the Court in economics and civil
liberties cases. Note, though, that the liberal
percentages have increased in the last four terms,
leading some observers to call the Roberts era both
the most conservative and the most liberal Court of
recent years.
Which raises the question: How valuable are the
ideological terms used to describe particular justices
or Courts in helping us to understand judicial
decision making? On one hand, knowledge of
justices’ ideologies can lead to fairly accurate
predictions about their voting behavior. Suppose that
the Roberts Court handed down a decision dealing
with the death penalty prior to Scalia’s death and
that the vote was 5–4 in favor of the criminal
defendant. The most conservative members of that
Court on death penalty cases are Chief Justice
Roberts and Justices Antonin Scalia, Clarence
Thomas, and Samuel Alito: they almost always vote
against the defendant in death penalty cases. If we
predicted that Roberts, Scalia, Thomas, and Alito
cast the dissenting votes in our hypothetical death
penalty case, we would almost certainly be right.64
64 We adopt this example from Jeffrey A. Segal and

Harold J. Spaeth, The Supreme Court and the
Attitudinal Model (New York: Cambridge University
Press, 1993), 223.
Figure 1-5 Court Decisions on Economics and Civil

Liberties, 1953–2017 Terms
Source: Calculated by the authors from data in
the U.S. Supreme Court Database
(http://supremecourtdatabase.org), including
only orally argued non–per curiam decisions.
On the other hand, preference-based approaches are

not foolproof. First, how do we know if a particular
justice is liberal or conservative? The answer
typically is that we know a justice is liberal or
conservative because he or she casts liberal or
conservative votes. Alito favors conservative
positions on the Court because he is a conservative,
and we know he is a conservative because he favors
conservative positions in the cases he decides. This
is circular reasoning indeed. Second, knowing that a
justice is liberal or conservative or that the Court
decided a case in a liberal or conservative way does
not tell us much about the Court’s (or the country’s)
policy positions. To say that Roe v. Wade (1973),
which legalized abortions, is a liberal decision is to
say little about the policies governing abortion in the
United States. If it did, this book would be nothing
more than a list of cases labeled liberal or
conservative. But such labels would give us no sense
of more than two hundred years of constitutional
interpretation.
Finally, we must understand that ideological labels

are occasionally time dependent, that they are bound
to particular historical eras. In Muller v. Oregon
(1908) the Supreme Court upheld a state law that
set a maximum number on the hours women (but not
men) could work. How would you, as a student in the
twenty-first century, view such an opinion? You
probably would classify it as conservative because it
did not treat the sexes equally. But when it was
decided, most observers considered Muller a liberal
ruling because it allowed the government to regulate
business.
A related problem is that some decisions do not fall

neatly into a single conservative–liberal dimension.
In Wisconsin v. Mitchell (1993) the Court upheld a
state law that increased the sentence for crimes if
the defendant “intentionally selects the person
against whom the crime is committed” on the basis
of race, religion, national origin, sexual orientation,
and other similar criteria. Is this ruling liberal or
conservative? If you view the law as penalizing racial
or ethnic hatred, you would likely see it as a liberal
decision. If, however, you see the law as treating
criminal defendants more harshly, the ruling is
conservative.
Judicial Role.
Another concept within the preference-based
category is the judicial role, which scholars have
defined as norms that constrain the behavior of
jurists.65 Some students of the Court argue that
each justice has a view of his or her role, a view
based far less on political ideology and far more on
fundamental beliefs of what a good judge should do
or what the proper role of the Court should be. Some
scholars claim that jurists vote in accordance with
these role conceptions.
65 See James L. Gibson, “Judges’ Role Orientations,

Attitudes, and Decisions,” American Political Science
Review 72 (1978): 911–924.
Analysts typically discuss judicial roles in terms of

activism and restraint. An activist justice believes
that the proper role of the Court is to assert
independent positions in deciding cases, to review
the actions of the other branches vigorously, to be
willing to strike down acts the justice believes are
unconstitutional, and to impose far-reaching
remedies for legal wrongs whenever necessary.
Restraint-oriented justices take the opposite
position. They believe that the Court should not
become involved in the operations of the other
branches unless absolutely necessary, that the
benefit of the doubt should be given to actions taken
by elected officials, and that the Court should impose
remedies that are narrowly tailored to correct
specific legal wrongs.
Based on these definitions, we might expect to find

activist justices more willing than their opposites to
strike down legislation. Therefore, a natural question
to ask is this: To what extent have specific jurists
practiced judicial activism or restraint? The data in
Table 1-3 address this question by reporting the
votes of justices serving on the Court from the 2005
term through the 2017 term (and who were still on
the Court) in cases in which the majority declared
federal, state, or local legislation unconstitutional.
Note the wide variation among the justices, even for
justices who sat together and heard the same cases
(Kagan and Sotomayor are the exceptions because
they joined the Court after the 2005 term). Of
particular interest is that some of the Court’s
conservative members—Kennedy, Roberts, and
Thomas—were more likely to vote with the majority
to strike down federal laws than were those on the
left (Sotomayor, Breyer, and Ginsburg).
Table 1-3
Source: Calculated by the authors from data in the
U.S. Supreme Court Database
(http://supremecourtdatabase.org) using orally argued
cases.
Note: The figures shown indicate the percentage of
cases in which each justice voted with the majority to
declare legislation unconstitutional. 21 cases were for
federal laws and 34 for state and local laws. Some
justices may not have participated in all cases. We
include only justices on the Court during the 2017
term, though we exclude Gorsuch because he
participated in fewer than ten of the cases.
These patterns are suggestive: judicial activism and

restraint do not necessarily equal judicial liberalism
and conservatism. An activist judge need not be
liberal, and a judge who practices restraint need not
be conservative. It is also true that so-called liberal
Courts are no more likely to strike down legislation
than are so-called conservative Courts. During the
liberal Warren Court, the Court invalidated laws in
141 cases—or about 8.8 per term. During the more
conservative Rehnquist years, the Court struck laws
in 155 cases—or about 8.2 per term. Because this
difference is small, it may call into question a strong
relationship between ideology and judicial role.
Although scholars have used measures such as the

number of laws struck down to assess the extent to
which justices practice judicial activism or restraint,
a question arises: To what extent does this
information help us understand Supreme Court
decision making? This question is difficult to answer
because few scholars have studied the relationship
between judicial roles and voting in a systematic
way.
The paucity of scholarly work on judicial roles leads

to a criticism of the approach: it is virtually
impossible to separate roles from attitudes. Can we
conclude that Scalia was practicing restraint when
he voted to uphold a law restricting access to
abortions? The answer, quite clearly, is no. It may be
his attitude toward abortion—not restraint—that
guided him to the law. Another criticism of role
approaches is similar to that leveled at attitudinal
factors—they tell us very little about the resulting
policy in a case. Again, to say that Roe v. Wade was
an activist decision because it struck down abortion
laws nationwide is to say nothing about the policy
content of the opinion.
Strategic Approaches
Strategic accounts of judicial decisions rest on a few
simple propositions: justices may be primarily
interested in moving the law toward their own
ideological positions (as the attitudinal approach
suggests) or they may be motivated by
jurisprudential principles (an approach legalists
advocate), but they are not unconstrained actors
who make decisions based solely on their own
ideology or jurisprudential desires. Rather, justices
are strategic actors who realize that their ability to
achieve their goals—whatever those goals might be
—depends on a consideration of the preferences of
other relevant actors (such as their colleagues and
members of other political institutions), the choices
they expect others to make, and the institutional
context in which they act. Scholars term this
approach “strategic” because the ideas it contains
are derived from the rational choice paradigm, on
which strategic analysis is based and as it has been
advanced by economists and political scientists
working in other fields. Accordingly, we can restate
the strategic argument in this way: we can best
explain the choices of justices as strategic behavior
and not merely as responses to ideological or
jurisprudential values.66
66 For more details on this approach, see Lee

Epstein and Jack Knight, The Choices Justices Make
(Washington, DC: CQ Press, 1998).
Such arguments about Supreme Court decision

making seem to be sensible because a justice can do
very little alone. It takes a majority vote to decide a
case and a majority agreeing on a single opinion to
set precedent. Under such conditions, human
interaction is important, and case outcomes—not to
mention the rationale of decisions—can be
influenced by the nature of relations among the
members of the group.
Although scholars have not considered strategic

approaches to the same degree that they have
studied judicial attitudes, a number of influential
works point to their importance. Research begun in
the 1960s and continuing today into the private
papers of former justices has shown consistently that
through intellectual persuasion, effective bargaining
over opinion writing, informal lobbying, and so forth,
justices have influenced the actions of their
colleagues.67
67 Walter F. Murphy, Elements of Judicial Strategy

(Chicago: University of Chicago Press, 1964); David
J. Danelski, “The Influence of the Chief Justice in the
Decisional Process of the Supreme Court,” in The
Federal Judicial System, ed. Thomas P. Jahnige and
Sheldon Goldman (New York: Holt, Rinehart &
Winston, 1968); J. Woodford Howard, “On the
Fluidity of Judicial Choice,” American Political
Science Review 62 (1968): 43–56; Epstein and
Knight, The Choices Justices Make; Forrest
Maltzman, Paul J. Wahlbeck, and James Spriggs,
Crafting Law on the Supreme Court: The Collegial
Game (New York: Cambridge University Press,
2000).
How does strategic behavior manifest itself? One

way is in the frequency of vote changes. During the
deliberations that take place after oral arguments,
the justices discuss the case and vote on it. These
votes do not become final until the opinions are
completed and the decision is made public (see
Figure 1-1). Research has shown that between the
initial vote on the merits of a case and the official
announcement of the decision, at least one vote
switch occurs more than 50 percent of the time.68
68 Saul Brenner, “Fluidity on the Supreme Court,

1956–1967,” American Journal of Political Science 26
(1982): 388–390; Brenner, “Fluidity on the United
States Supreme Court: A Re-examination,” American
Journal of Political Science 24 (1980): 526–535;
Forrest Maltzman and Paul J. Wahlbeck, “Strategic
Policy Considerations and Voting Fluidity on the
Burger Court,” American Political Science Review 90
(1996): 581–592.
A very recent example, as we already noted, is Chief

Justice Roberts’s change of heart over the
constitutionality of the health-care law. Because of
his vote switch, the Court ended up upholding key
parts of the law by a vote of 5–4 rather than striking
them by a vote of 5–4. This episode, along with the
figure of 50 percent, indicates that justices change
their minds—perhaps reevaluating their initial
positions or succumbing to the persuasion of their
colleagues—which seems inexplicable if we believe
that justices are simply liberals or conservatives and
always vote their preferences.
Vote shifts are just one manifestation of the

interdependence of the Court’s decision-making
process. Another is the revision of opinions that
occurs in almost every Court case.69 As opinion
writers try to accommodate their colleagues’ wishes,
their drafts may undergo five, ten, even fifteen
revisions. Bargaining over the content of an opinion
is important because it can significantly alter the
policy ultimately expressed. A clear example is
Griswold v. Connecticut (1965), in which the Court
considered the constitutionality of a state law that
prohibited the dissemination of birth control devices
and information, even to married couples. In his
initial draft of the majority opinion, Justice William
O. Douglas struck down the law on the ground that it
interfered with the First Amendment right of
association. A memorandum from Brennan
convinced Douglas to alter his rationale and to
establish the foundation for a right to privacy. “Had
the Douglas draft been issued as the Griswold
opinion of the Court, the case would stand as a
precedent on the freedom of association” rather than
serve as the landmark ruling it became.70
69 Epstein and Knight, The Choices Justices Make,

chap. 3.
70 See Bernard Schwartz, The Unpublished Opinions

of the Warren Court (New York: Oxford University
Press, 1985), chap. 7.
External Factors
In addition to internal considerations, strategic
approaches (as well as others) take account of
political pressures that come from outside the Court.
We consider three: public opinion, partisan politics,
and interest groups. While reading about these
sources of influence, keep in mind that one of the
fundamental differences between the Supreme Court
and the political branches is the lack of a direct
electoral connection between the justices and the
public. Once appointed, justices may serve for life.
They are not accountable to the public and are not
required to undergo any periodic reevaluation of
their decisions. So why would they let the stuff of
ordinary partisan politics, such as public opinion and
interest groups, influence their opinions?
Public Opinion.
To address this question, let us first look at public
opinion as a source of influence on the Court. We
know that the president and members of Congress
are always trying to find out what the people are
thinking. Conducting and analyzing public opinion
polls is a never-ending task, and those who
commission the polls have a good reason for this
activity: the political branches are supposed to
represent the people, and incumbents can jeopardize
their reelection prospects by straying too far from
what the public wants. But federal judges—including
Supreme Court justices—are not dependent on
pleasing the public to stay in office, and they do not
serve in the same kind of representative capacity
that legislators do.
Does that mean that the justices are not affected by

public opinion? Some scholars say they are, and they
offer three reasons for this claim.71 First, because
justices are political appointees, nominated and
approved by popularly elected officials, it is logical
that they should reflect, however subtly, the views of
the majority. It is probably true that an individual
radically out of step with either the president or the
Senate would not be nominated, much less
confirmed. Second, the Court, at least occasionally,
views public opinion as a legitimate guide for
decisions. It has even gone so far as to incorporate
that consideration into some of its jurisprudential
standards. For example, in evaluating whether
certain kinds of punishments violate the Eighth
Amendment’s prohibition against cruel and unusual
punishment, the Court proclaimed that it would look
toward “evolving standards of decency,” as defined
by public sentiment.72 The third reason relates to
the Court as an institution. Put simply, the justices
have no mechanism for enforcing their decisions.
Instead, they depend on other political officials to
support their positions and on general public
compliance, especially when controversial Court
opinions have ramifications beyond the particular
concerns of the parties to the suits.
71 See, for example, Barry Friedman, The Will of the

People (New York: Farrar, Straus & Giroux, 2009);
William Mishler and Reginald S. Sheehan, “The
Supreme Court as a Counter-majoritarian
Institution? The Impact of Public Opinion on
Supreme Court Decisions,” American Political
Science Review 87 (1993): 87–101.
72 Trop v. Dulles (1958).
Certainly, we can think of cases that lend support to

these claims—cases in which the Court seems to
have embraced public opinion, especially under
conditions of extreme national stress. One such case
occurred during World War II. In Korematsu v.
United States (1944) the justices endorsed the
government’s program to remove all Japanese
Americans from the Pacific Coast states and relocate
them to inland detention centers. It seems clear that
the justices were swept up in the same wartime
apprehensions as the rest of the nation. But it is
equally easy to summon examples of the Court
handing down rulings that fly in the face of what the
public wants. The most obvious examples occurred
after Franklin Roosevelt’s 1932 election to the
presidency. By choosing Roosevelt and a Democratic
majority in Congress, the voters sent a clear signal
that they wanted the government to take vigorous
action to end the Great Depression. The president
and Congress responded with many laws—the so-
called New Deal legislation—but the Court remained
unmoved by the public’s endorsement of Roosevelt
and his legislation. In case after case, at least until
1937, the justices struck down many of the laws and
administrative programs designed to get the nation’s
economy moving again.
And, in fact, some scholars remain unconvinced of
the role of public opinion in Court decision making.
After systematically analyzing the data, Helmut
Norpoth and Jeffrey A. Segal conclude, “Does public
opinion influence Supreme Court decisions? If the
model of influence is of the sort where the justices
set aside their own [ideological] preferences and
abide by what they divine as the vox populi, our
answer is a resounding no.”73 What Norpoth and
Segal find instead is that Court appointments made
by Richard Nixon in the early 1970s caused a
“sizable ideological shift” in the direction of Court
decisions (see Figure 1-5). The entry of conservative
justices created the illusion that the Court was
echoing public opinion, and not that sitting justices
modified their voting patterns to conform to the
changing views of the public.
73 Helmut Norpoth and Jeffrey A. Segal, “Popular

Influence in Supreme Court Decisions,” American
Political Science Review 88 (1994): 711–716.
This finding reinforces yet another criticism of this

approach: that public opinion affects the Court only
indirectly through presidential appointments, not
through the justices’ reading of public opinion polls.
This distinction is important, for if justices were
truly influenced by the public, their decisions would
change with the ebb and flow of opinion. But if they
merely share their appointing president’s ideology,
which must mirror the majority of the citizens at the
time of the president’s election, their decisions will
remain constant over time. They would not fluctuate,
as public opinion often does.
The question of whether public opinion affects

Supreme Court decision making is still open for
discussion, as illustrated by a recent article, “Does
Public Opinion Influence the Supreme Court?
Possibly Yes (But We’re Not Sure Why).”74 The
authors find that when the “mood” is liberal (or
conservative), the Court is significantly more likely
to issue liberal (or conservative) decisions. But why
that is so, as the article’s title suggests, is anyone’s
guess. It could be that the justices bend to the will of
the people because the Court requires public
support to remain an efficacious branch of
government. Or it could be that “the people” include
the justices. The justices do not respond to public
opinion directly but rather respond to the same
events or forces that affect the opinions of other
members of the public. In 1921 Justice Benjamin
Cardozo wrote, “The great tides and currents which
engulf the rest of men do not turn aside in their
course and pass the judge by.”75
74 Lee Epstein and Andrew D. Martin, “Does Public

Opinion Influence the Supreme Court? Possibly Yes
(But We’re Not Sure Why),” University of
Pennsylvania Journal of Constitutional Law 13
(2010): 263–281.
75 Benjamin Cardozo, The Nature of the Judicial

Process (New Haven, CT: Yale University Press,
1921), 168. For an effort to resolve this debate, see
Christopher J. Casillas, Peter K. Enns, and Patrick C.
Wohlfarth, “How Public Opinion Constrains the U.S.
Supreme Court,” 55 American Journal of Political
Science 74-88 (2011).
Partisan Politics.
Public opinion may not be the only political factor
that influences the justices. As Jonathan Casper
wrote, we cannot overestimate “the importance of
the political context in which the Court does its
work.” In his view, the statement that the Court
follows the election returns “recognizes that the
choices the Court makes are related to developments
in the broader political system.”76 In other words,
the political environment has an effect on Court
behavior. In fact, many scholars assert that the Court
is responsive to the influence of partisan politics,
both internally and externally.
76 Jonathan Casper, The Politics of Civil Liberties

(New York: Harper & Row, 1972), 293.
On the inner workings of the Court, social scientists

long have argued that political creatures inhabit the
Court, that justices are not simply neutral arbiters of
the law. Since 1789, the beginning of constitutional
government in the United States, those who have
ascended to the bench have come from the political
institutions of government or, at the very least, have
affiliated with particular political parties. Judicial
scholars recognize that justices bring with them the
philosophies of those partisan attachments. Just as
the members of the present Court tend to reflect the
views of the Republican Party or the Democratic
Party, so too did the justices who came from the
ranks of the Federalists and Jeffersonians. As one
might expect, justices who affiliate with the
Democratic Party tend to be more liberal in their
decision making than those who are Republicans.
Some commentators say that Bush v. Gore (2000), in
which the Supreme Court issued a ruling that
virtually ensured that George W. Bush would become
president, provides an example (see Chapter 4). In
that case, five of the Court’s seven Republican
appointees “voted” for Bush, while its two
Democrats “voted” for Gore.
Political pressures from the outside also can affect

the Court. Although the justices have no electoral
connection or mandate of responsiveness, the other
institutions of government have some influence on
judicial behavior, and, naturally, the direction of that
influence reflects the partisan composition of those
branches. The Court has always had a complex
relationship with the president, a relationship that
provides the president with several possible ways to
influence judicial decisions. The president has some
direct links with the Court, including (1) the power
to nominate justices and shape the Court; (2)
personal relationships with sitting justices, such as
Franklin Roosevelt’s with James Byrnes, Lyndon
Johnson’s with Abe Fortas, and Richard Nixon’s with
Warren Burger; and (3) the notion that the
president, having been elected within the previous
four years, may carry a popular mandate, reflecting
citizens’ preferences, which would affect the
environment within which the Court operates.
A less direct source of influence is the executive

branch, which operates under the president’s
command. The bureaucracy can assist the Court in
implementing its policies, or it can hinder the Court
by refusing to do so, a fact of which the justices are
well aware. As a judicial body, the Supreme Court
cannot implement or execute its own decisions. It
often must depend on the executive branch to give
its decisions legitimacy through action. The Court,
therefore, may act strategically, anticipate the
wishes of the executive branch, and respond
accordingly to avoid a confrontation that could
threaten its legitimacy. Marbury v. Madison (1803),
in which the Court enunciated the doctrine of
judicial review, is the classic example (excerpted in
Chapter 2). Some scholars suggest that the justices
knew that if they ruled a certain way, the Thomas
Jefferson administration would not carry out the
Court’s orders. Because the Court believed that such
a failure would threaten the legitimacy of judicial
institutions, it crafted its opinion in a way that would
not force the administration to take any action, but
instead would send a message about its displeasure
with the administration’s politics.
Another indirect source of presidential influence is
the office of the U.S. solicitor general. In addition to
the SG’s success as a petitioning party, the office can
have an equally pronounced effect at the merits
stage. In fact, data indicate that whether acting as
an amicus curiae or as a party to a suit, the SG’s
office is generally able to convince the justices to
adopt the position advocated by the SG.77
77 See Epstein et al., Supreme Court Compendium,

tables 7-15 and 7-16.
Presidential influence is also demonstrated in the

kinds of arguments an SG brings into the Court. That
is, SGs representing Democratic administrations
tend to present more liberal arguments; those from
the ranks of the Republican Party, more conservative
arguments. The transition from George H. W. Bush’s
administration to Bill Clinton’s provides an
interesting illustration. Bush’s SG had filed amicus
curiae briefs—many of which took a conservative
position—in a number of cases heard by the Court
during the 1993–1994 term. Drew S. Days III,
Clinton’s first SG, rewrote at least four of those
briefs to reflect the new administration’s liberal
posture. In one case, Days argued that the Civil
Rights Act of 1991 should be applied retroactively,
whereas the Bush administration had suggested that
it should not be. In another, Days claimed trial
attorneys could not systematically dismiss
prospective jurors on the basis of sex; his
predecessor had argued that such challenges were
constitutional.
Congress, too—or so some argue—can influence

Supreme Court decision making. Like the president,
the legislature has many powers over the Court that
the justices cannot ignore.78 Some of these resemble
presidential powers—the Senate’s role in
confirmation proceedings, the implementation of
judicial decisions—but there are others. Congress
can restrict the Court’s jurisdiction to hear cases,
enact legislation or propose constitutional
amendments to recast Court decisions, and hold
judicial salaries constant. To forestall a
congressional attack, the Court might accede to
legislators’ wishes. Often-cited instances include the
Court’s willingness to defer to the Radical
Republican Congress after the Civil War and to
approve New Deal legislation after Roosevelt
proposed his Court-packing plan in 1937. Some
argue that these examples represent anomalies, not
the rule. The Court, they say, has no reason to
respond strategically to Congress because the
legislature so rarely threatens, much less takes
action against, the judiciary. Indeed, Congress has
only infrequently removed the Supreme Court’s
jurisdiction to hear particular kinds of cases. The
best-known example occurred just after the Civil
War, and the most recent was in pursuance of the
war on terrorism (see Chapter 2 for more details).
Keep this argument in mind as you read the cases
that pit the Court against Congress and the
president.
78 See Gerald N. Rosenberg, “Judicial Independence

and the Reality of Political Power,” Review of Politics
54 (1992): 369–398.
Interest Groups.
In Federalist No. 78, Alexander Hamilton wrote that
the U.S. Supreme Court was “to declare the sense of
the law” through “inflexible and uniform adherence
to the rights of the constitution and individuals.”
Despite this expectation, Supreme Court litigation
has become political over time. We see
manifestations of politics in virtually every aspect of
the Court’s work, from the nomination and
confirmation of justices to the factors that influence
their decisions, but perhaps the most striking
example of this politicization is the incursion of
organized interest groups into the judicial process.
Naturally, interest groups may not attempt to

persuade the Supreme Court the same way lobbyists
deal with Congress. It would be grossly improper for
the representatives of an interest group to approach
a Supreme Court justice directly. Instead, interest
groups try to influence Court decisions by submitting
amicus curiae briefs (see Box 1-2). Presenting a
written legal argument to the Court allows an
interest group to make its views known to the
justices, even when the group is not a direct party to
the litigation.
These days, it is a rare case before the U.S. Supreme

Court that does not attract such submissions. In
recent years, organized interests filed at least one
amicus brief in more than 90 percent of all cases
decided by full opinion between 2000 and 2015.79
Some cases, particularly those involving
controversial issues such as gun control legislation,
abortion, and affirmative action, are especially
attractive to interest groups. In Regents of the
University of California v. Bakke (1978), involving
admission of minority students to medical school,
more than one hundred organizations filed fifty-eight
amicus briefs: forty-two backing the university’s
admissions policy and sixteen supporting Bakke. The
2003 affirmative action case Grutter v. Bollinger
drew eighty-four briefs, and from a wide range of
interests: colleges and universities, Fortune 500
companies, and retired military officers, to name just
a few.80 And eighty-eight amicus briefs were
submitted in Fisher v. Texas, the affirmative action
case that highlighted the 2012 term. But it is not
only cases of civil liberties and rights that attract
interest group attention. In the 2012 challenge to
the constitutionality of the Patient Protection and
Affordable Care Act, the Court received more than
one hundred amicus briefs. In addition to
participating as amici, groups in record numbers are
sponsoring cases—that is, providing litigants with
attorneys and the money necessary to pursue their
cases.
79 See Epstein et al., Supreme Court Compendium,

table 7-22.
80 See Linda Greenhouse, “What Got into the

Court?,” Maine Law Review 57 (2005): 6.
Greenhouse wrote that “more than 100 briefs, a
record number, were filed” in the 2003 affirmative
action cases. Our figure (84) for Grutter excludes
briefs filed by individuals.
The explosion of interest group participation in

Supreme Court litigation raises two questions. First,
why do groups go to the Court? One answer is
obvious: they want to influence the Court’s
decisions. But groups also go to the Supreme Court
to achieve other, subtler ends. One is the setting of
institutional agendas: by filing amicus curiae briefs
at the case selection stage or by bringing cases to
the Court’s attention, organizations seek to influence
the justices’ decisions on which disputes to hear.
Group participation also may serve as a
counterbalance to other interests that have
competing goals. So if Planned Parenthood, a pro-
choice group, observes Life Legal Defense
Foundation, a pro-life group, filing an amicus curiae
brief in an abortion case (or vice versa), it too may
enter the dispute to ensure that its side is
represented in the proceedings. Finally, groups go to
the Court to publicize their causes and their
organizations. The NAACP (National Association for
the Advancement of Colored People) Legal Defense
Fund’s legendary litigation campaign to end school
segregation provides an excellent example. It not
only resulted in a favorable policy decision in Brown
v. Board of Education (1954) but also established the
Legal Defense Fund as the foremost organizational
litigant of this issue.
The second question is this: Do groups influence the

outcomes of Supreme Court decisions?81 This
question has no simple answer. When interest
groups participate on both sides, it is reasonable to
speculate that one or more exerted some intellectual
influence or at least that intervention of groups on
the winning side neutralized the arguments of those
who lost. To determine how much influence any
group or private party exerted, a researcher might
have to interview all the justices who participated in
the decision (and they do not generally grant such
interviews) because even a direct citation to an
argument advanced in one of the parties’ or amici’s
briefs may indicate merely that a justice is seeking
support for a conclusion he or she had already
reached.
81 We adopt some of this material in this section

from Murphy et al., Courts, Judges, and Politics,
chap. 6.
What we can say is that attorneys for some groups,

such as the Women’s Rights Project of the American
Civil Liberties Union and the NAACP, are often more
experienced, and their staffs more adept at research,
than counsel for what Marc Galanter calls “one-
shotters.”82 When he was chief counsel for the
NAACP, Thurgood Marshall would solicit help from
allied groups and orchestrate their cooperation on a
case, dividing the labor among them by assigning
specific arguments to each, while enlisting
sympathetic social scientists to muster supporting
data. Before going to the Supreme Court for oral
argument, he would sometimes have a practice
session with friendly law professors, each one
playing the role of a particular justice and trying to
pose the sorts of questions that justice would be
likely to ask. Such preparation can pay off, but it
need not be decisive. In oral argument, Allan
Bakke’s attorney displayed a surprising ignorance of
constitutional law and curtly told one justice who
tried to help him that he would like to argue the case
his own way. Even with this poor performance,
Bakke’s side won.
82 Marc Galanter, “Why the ‘Haves’ Come Out

Ahead: Speculations on the Limits of Legal Change,”
Law and Society Review 9 (1974): 95–160.
Some evidence, however, suggests that attorneys

working for interest groups are no more successful
than private counsel. One study paired similar cases
decided by the same district court judge, the same
year, with the only major difference being that one
case was sponsored by a group whereas the other
was brought by attorneys unaffiliated with an
organized interest. Despite Galanter’s contentions
about the obstacles confronting one-shotters, the
study found no major differences between the two.83
In short, the debate over the influence of interest

groups continues, and it is a debate that you will
have ample opportunity to consider. Within the case
excerpts in this volume, we often provide
information on the arguments of amici and attorneys
so that you can compare these points with the
justices’ opinions.
83 Lee Epstein and C. K. Rowland, “Debunking the

Myth of Interest Group Invincibility in the Court,”
217.
Conducting Research on the

Supreme Court
As you can see, considerable disagreement exists in
the scholarly and legal communities about how
justices should interpret the Constitution, and even
why they decide cases the way they do. These
approaches show up in many of the Court’s opinions
in this book. Keep in mind, however, that the
opinions are not presented here in full; the excerpts
included here are intended to highlight the most
important points of the various majority, dissenting,
and concurring opinions. Occasionally, you may want
to read the decisions in their entirety. Following is an
explanation of how to find opinions and other kinds
of information on the Court and its members.
Locating Supreme Court

Decisions
U.S. Supreme Court decisions are published by
various reporters. The four major reporters are (1)
U.S. Reports, (2) Lawyers’ Edition, (3) Supreme
Court Reporter, and (4) U.S. Law Week. All contain
the opinions of the Court, but they vary in the kinds
of ancillary material they provide. As Table 1-4
shows, the Lawyers’ Edition contains excerpts of the
briefs of attorneys submitted in orally argued cases,
U.S. Law Week provides a topical index of cases on
the Court’s docket, and so forth.
Table 1-4
Sources: Lee Epstein, Jeffrey A. Segal, Harold J.

Spaeth, and Thomas G. Walker, The Supreme Court
Compendium: Data, Decisions, and Developments, 6th
ed. (Thousand Oaks, CA: CQ Press, 2015), table 2-9.
Dates of reporters are from David Savage, Guide to the
U.S. Supreme Court, 5th ed. (Washington, DC: CQ
Press, 2010).
Locating a case within these reporters is easy if you

know the case citation. Case citations, as the table
shows, take different forms, but they all work in
roughly the same way. To see how, turn to page 270
to find an excerpt of Mistretta v. United States
(1989). Directly under the case name is a citation:
488 U.S. 361, which means that Mistretta v. United
States appears in volume 488, on page 361, of U.S.
Reports. 84 The first set of numbers is the volume
number, the U.S. is the form of citation for U.S.
Reports, and the second set of numbers is the
starting page of the case.
84 In this book, we list only the U.S. Reports cite

because U.S. Reports is the official record of
Supreme Court decisions. It is the only reporter
published by the federal government; the other three
are privately printed. Almost every law library has
U.S. Reports. If your college or university does not
have a law school, check with your librarians. If they
have any Court reporter, it is probably U.S. Reports.
Mistretta v. United States also can be located in the

three other reporters. The citations are as follows:
Lawyers’ Edition: 102 L. Ed. 2d 714 (1989)

Supreme Court Reporter: 109 S. Ct. 647 (1989)
U.S. Law Week: 57 U.S.L.W. 4102 (1989)
Note that the abbreviations vary by reporter, but the

citations parallel the U.S. Reports in that the first set
of numbers is the volume number and the second set
is the starting page number.
These days, however, many students turn to

electronic sources to locate Supreme Court
decisions. Several companies maintain databases of
the decisions of federal and state courts, along with
a wealth of other information. In some institutions
these services—LexisNexis and Westlaw—are
available only to law school students. If you are in
another academic unit, check with your librarians to
see if your school provides access, perhaps through
Academic Universe (a subset of the LexisNexis
service). Also, the Legal Information Institute at
Cornell Law School
(https://www.law.cornell.edu/supremecourt/text/hom
e), FindLaw (http://caselaw.findlaw.com/court/us-
supreme-court), and now the Supreme Court itself
(https://www.supremecourt.gov)—to name just three
—house Supreme Court opinions and offer an array
of search capabilities. You can read the opinions
online, have them e-mailed to you, or download them
immediately. If a case we excerpt is located in these
archives, we note the Web address after the case
citation.
Locating Other Information on

the Supreme Court and Its
Members
As you might imagine, there is no shortage of
reference material on the Court. Three good (print)
starting points are the following:
1. The Supreme Court Compendium: Data,

Decisions, and Developments, sixth edition,
contains information on the following dimensions
of Court activity: the Court’s development, review
process, opinions and decisions, judicial
backgrounds, voting patterns, and impact.85 You
will find data as varied as the number of cases the
Court decided during a particular term, the votes
in the Senate on Supreme Court nominees, and
the law schools the justices attended.
2. Guide to the U.S. Supreme Court, fifth edition,
provides a fairly detailed history of the Court. It
also summarizes the holdings in landmark cases
and provides brief biographies of the justices.86
3. The Oxford Companion to the Supreme Court of
the United States, second edition, is an
encyclopedia containing entries on the justices,
important Court cases, the amendments to the
Constitution, and so forth.87
85 Epstein et al., Supreme Court Compendium.
86 David Savage, Guide to the U.S. Supreme Court,

5th ed. (Washington, DC: CQ Press, 2010).
87 Kermit Hall, ed., The Oxford Companion to the

Supreme Court of the United States, 2nd ed. (New
York: Oxford University Press, 2005).
The U.S. Supreme Court also gets a great deal of

attention on the Internet. The Legal Information
Institute (https://www.law.cornell.edu) is particularly
useful. In addition to Supreme Court decisions, the
Legal Information Institute contains links to various
documents (such as the U.S. Code and state
statutes), and to a vast array of legal indexes and
libraries. If you are unable to find the material you
are looking for here, you may locate it by clicking on
one of the links.
Another worthwhile site is SCOTUSblog, a project of

a law firm (www.scotusblog.com). Housed here are
extensive commentaries on pending Court cases, as
well as links to briefs filed by the parties and amici.
As already mentioned, you can listen to a number of

oral arguments of the Court at the Oyez Project site
(https://www.oyez.org). Oyez contains audio files of
Supreme Court oral arguments for selected
constitutional cases decided since the 1950s.
These are just a few of the many sites—perhaps

hundreds—that contain information on the federal
courts. But there is at least one other important
electronic source of information on the Court worthy
of mention: the U.S. Supreme Court Database,
developed by Harold J. Spaeth, a political scientist
and lawyer. This resource provides a wealth of data
from the Court’s beginnings to the present. Among
the many attributes of Court decisions it includes are
the names of the courts that made the original
decisions, the identities of the parties to the cases,
the policy context of the cases, and the votes of each
justice. Indeed, we deployed this database to create
many of the charts and tables you have just read.
You can obtain all the data and accompanying
documentation, free of charge, at
http://supremecourtdatabase.org.
In this chapter, we have examined Supreme Court

procedures and attempted to shed some light on how
and why justices make the choices they do. Our
consideration of preference-based factors, for
example, highlighted the role ideology plays in Court
decision making, and our discussion of political
explanations emphasized public opinion and interest
groups. After reading this chapter, you may have
concluded that the justices are relatively free to go
about their business as they please. But, as we shall
see in the next chapter, that is not necessarily so.
Although Court members have a good deal of power
and the freedom to exercise it, they also face
considerable institutional obstacles. It is to the
subjects of judicial power and constraints that we
now turn.
Annotated Readings
In the text and footnotes, we mention many
interesting studies on the Supreme Court. Our goal
in each chapter’s Annotated Readings section is to
highlight a few books for the interested reader.
Lawrence Baum’s The Supreme Court, 10th ed.

(Washington, DC: CQ Press, 2011), and Linda
Greenhouse’s The Supreme Court: A Very Short
Introduction (New York: Oxford University Press,
2012) provide modern-day introductions to the Court
and its work.
For insightful historical-political analyses, see Robert

G. McCloskey’s The American Supreme Court
(Chicago: University of Chicago Press, 2004) and
Barry Friedman’s The Will of the People (New York:
Farrar, Straus & Giroux, 2009).
Several modern-day justices have written books

outlining their approaches to interpreting the
Constitution. See Stephen Breyer’s Active Liberty:
Interpreting Our Democratic Constitution (New
York: Knopf, 2005) and Antonin Scalia’s A Matter of
Interpretation: Federal Courts and the Law
(Princeton, NJ: Princeton University Press, 1997),
which includes responses from prominent legal
scholars.
For other studies of approaches to constitutional

interpretation, see Philip Bobbitt, Constitutional
Fate: Theory of the Constitution (New York: Oxford
University Press, 1982); Richard H. Fallon Jr.,
Implementing the Constitution (Cambridge, MA:
Harvard University Press, 2001); Michael J.
Gerhardt, The Power of Precedent (New York:
Oxford University Press, 2008); Leslie Friedman
Goldstein, In Defense of the Text (Savage, MD:
Rowman & Littlefield, 1991); Pamela S. Karlan, A
Constitution for All Times (Cambridge, MA: MIT
Press, 2013); Gary L. McDowell, The Language of
Law and the Foundations of American
Constitutionalism (New York: Cambridge University
Press, 2010); Jack N. Rakove, Original Meanings:
Politics and Ideas in the Making of the Constitution
(New York: Vintage Books, 1996); and Keith E.
Whittington, Constitutional Interpretation: Textual
Meaning, Original Intent, and Judicial Review
(Lawrence: University Press of Kansas, 1999).
Noteworthy political science studies of judicial

decision making (including case selection) are, in
chronological order, C. Herman Pritchett, The
Roosevelt Court (New York: Macmillan, 1948);
Glendon Schubert, The Judicial Mind (Evanston, IL:
Northwestern University Press, 1965); Walter J.
Murphy, Elements of Judicial Strategy (Chicago:
University of Chicago Press, 1964); H. W. Perry Jr.,
Deciding to Decide: Agenda Setting in the United
States Supreme Court (Cambridge, MA: Harvard
University Press, 1991); Lee Epstein and Jack
Knight, The Choices Justices Make (Washington, DC:
CQ Press, 1998); Forrest Maltzman, James F. Spriggs
II, and Paul J. Wahlbeck, Crafting Law on the
Supreme Court: The Collegial Game (New York:
Cambridge University Press, 2000); Jeffrey A. Segal
and Harold J. Spaeth, The Supreme Court and the
Attitudinal Model Revisited (New York: Cambridge
University Press, 2002); Stefanie A. Lindquist and
Frank B. Cross, Measuring Judicial Activism (New
York: Oxford University Press, 2009); Michael A.
Bailey and Forrest Maltzman, The Constrained
Court: Law, Politics, and the Decisions Justices Make
(Princeton, NJ: Princeton University Press, 2011);
Richard L. Pacelle Jr., Brett W. Curry, and Bryan W.
Marshall, Decision Making by the Modern Supreme
Court (New York: Cambridge University Press,
2011); and Lee Epstein, William M. Landes, and
Richard A. Posner, The Behavior of Federal Judges: A
Theoretical and Empirical Study of Rational Choice
On the work of interest groups and attorneys

(including the solicitor general), see Ryan C. Black
and Ryan J. Owens, The Solicitor General and the
United States Supreme Court: Executive Branch
Influence and Judicial Decisions (Cambridge, UK:
Cambridge University Press, 2012); Paul M. Collins
Jr., Friends of the Supreme Court: Interest Groups
and Judicial Decision Making (New York: Oxford
University Press, 2008); Timothy R. Johnson, Oral
Arguments and the United States Supreme Court
(Albany: State University of New York Press, 2004);
and Kevin T. McGuire, The Supreme Court Bar:
Legal Elites in the Washington Community
(Charlottesville: University Press of Virginia, 1993).
Part Two Institutional
Authority
Structuring the Federal System
2. THE JUDICIARY
3. THE LEGISLATURE
4. THE EXECUTIVE
5. INTERBRANCH INTERACTIONS
Structuring the Federal
System
ONE OF THE FIRST things everyone learns in an

American government course is that two concepts
undergird the U.S. constitutional system. The first is
the separation of powers doctrine, under which each
of the branches has a distinct function: the
legislature makes the laws, the executive
implements those laws, and the judiciary interprets
them. The second concept is the notion of checks
and balances: each branch of government imposes
limits on the primary functions of the others. The
Supreme Court may interpret laws, but Congress
can introduce legislation to override the Court’s
interpretation. If Congress takes action, then the
president has the option of vetoing the proposed law.
If that happens, Congress must decide whether to
override the president’s veto. Seen in this way, the
rule of checks and balances inherent in the system of
separation of powers suggests that policy in the
United States comes not from the separate actions of
the branches of government but from the interaction
among them.
A full understanding of the basics of institutional

powers and constraints therefore requires a
consideration of three important subjects. First, we
must investigate the separation of powers system
and why the framers adopted it; we take up this
subject in the following pages. Second, because of
the unique role the judiciary plays in the American
government system, we need to understand how the
Court has interpreted its own powers (located in
Article III of the Constitution) and the constraints on
those powers, as well as the powers of Congress
(Article I) and the president (Article II). We consider
these matters in Chapters 2, 3, and 4. Finally,
throughout U.S. history the various institutions
sometimes have taken on roles other than those
ascribed to them in the Constitution (such as when
the executive exerts legislative powers); and
sometimes the Constitution is ambiguous about
which branch has what powers (such as the power to
make war). Chapter 5 takes up these important
topics by exploring interbranch relations.
Origins of the Separation of

Powers/Checks and Balances
System
Even a casual comparison of the Articles of
Confederation and the U.S. Constitution reveals
major differences in the way the two documents
structured the national government. Under the
articles, the powers of government were
concentrated in the legislature—a unicameral
Congress in which the states had equal voting
powers (see Figure I-1). There was no executive or
judicial branch separate and independent from the
legislature. Issues of separation of powers and
checks and balances were not particularly relevant
to the articles, largely because the national
government had almost no power to abuse. The
states were capable of checking anything the central
government proposed, and they provided whatever
restraints the newly independent nation needed.
The government under the Articles of Confederation

failed at least in part because it lacked sufficient
power and authority to cope with the problems of
the day. The requirements for amending the
document were so restrictive that fundamental
change within the articles proved impossible. When
the Constitutional Convention met in Philadelphia in
1787, the delegates soon concluded that the articles
had to be scrapped and replaced with a charter that
would provide more effective power for the national
government. The country had experienced
conditions of economic decline, crippling taxation
policies, interstate barriers to commerce, and
isolated but alarming insurrections among the lower
economic classes. The framers saw a newly
structured national government as the only method
of dealing with the problems besetting the nation in
the aftermath of the Revolution.
But allocating significant power to the national

government was not without its risks. Many of the
framers feared the creation of a federal power
capable of dominating the states and abusing
individual liberties. It was apparent to all that the
new government would have to be structured in a
way that would minimize the potential for abuse and
excess. The concept of the separation of powers and
its twin, the idea of checks and balances, appealed
to the framers as the best way to accomplish these
necessary restraints.
The idea of separated powers was not new to the

framers. They had been introduced to it by the
political philosophy of the day and by their own
political experiences. The theories of James
Harrington and Charles de Montesquieu were
particularly influential in this respect. Harrington
(1611–1677) was an English political philosopher
whose emphasis on the importance of property found
a sympathetic audience among the former colonists.
His primary work, Oceana, published in 1656, was a
widely read description of a model government.
Incorporated into Harrington’s ideal state was the
notion that government powers ought to be divided
into three parts. A Senate made up of the intellectual
elite would propose laws; the people, guided by the
Senate’s wisdom, would enact the laws; and a
magistrate would execute the laws. This system,
Harrington argued, would impose an important
balance that would maintain a stable government
and protect property rights.
Harrington’s concept of a separation of powers was

less well developed than that later proposed by
Montesquieu (1689–1755), a French political
theorist. Many scholars consider his Spirit of the
Laws (published as De l’Esprit des Loix in 1748),
which was widely circulated during the last half of
the eighteenth century, to be the classic treatise on
the separation of powers philosophy. Montesquieu
was concerned about government abuse of liberty. In
his estimation, liberty could not long prevail if too
much power accrued to a single ruler or a single
branch of government. He warned, “When the
legislative and executive powers are united in the
same person, or the same body of magistrates, there
can be no liberty. . . . Again, there is no liberty if the
judicial power be not separated from the legislative
and executive.” Although Montesquieu’s message
was directed to the citizens of his own country, he
found a more receptive audience in the United
States.
The influence of these political thinkers was

reinforced by the framers’ political experiences. The
settlers had come to the New World largely to
escape the abuses of European governments. George
III’s treatment of the colonies taught them that
executives were not to be trusted with too much
power. The colonists also feared an independent and
powerful judiciary, especially one not answerable to
the people. The framers undoubtedly had more
confidence in the legislature, but they knew it too
had the potential of exceeding its proper bounds.
The English experience during the reign of Oliver
Cromwell was lesson enough that muting the power
of the king did not necessarily lead to the elimination
of government abuse. What the framers sought was
balance, a system in which each branch of
government would be strong enough to keep
excessive power from flowing into the hands of any
other single branch. This necessary balance, as John
Adams pointed out in his Defence of the
Constitutions of Government of the United States of
America (1787–1788), would also have the
advantage of keeping the power-hungry aristocracy
in check and preventing the majority from taking
rights away from the minority.
Separation of Powers and the

Constitution
The debates at the Constitutional Convention and
the various plans the delegates considered all
focused on the issue of dividing government power
among the three branches as well as between the
national government and the states. A general fear
of a concentration of power permeated all the
discussions. James Madison noted, “The truth is, all
men having power ought to be distrusted to a certain
degree.” Separated powers turned out to be the
framers’ solution to the difficult problem of
expanding government power, and at the same time
reducing the probability of abuse.
Although the term separation of powers is nowhere

to be found in the document, the Constitution plainly
adopts the central principles of the theory. A reading
of the first lines of each of the first three articles—
the vesting clauses—makes this point clearly:
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. [Article I]
The executive Power shall be vested in a

President of the United States of America.
[Article II]
The judicial Power of the United States, shall be

vested in one supreme Court, and in such
inferior Courts as the Congress may from time to
time ordain and establish. [Article III]
In the scheme of government incorporated into the

Constitution, the legislative, executive, and judicial
powers resided in separate branches of government.
Unless otherwise specified in the document, each
branch presumably was limited to the political
function granted to it, and that function could not be
exercised by either of the other two branches.
In addition to the separation of powers, which

reserves certain functions for specific branches, the
framers placed into the Constitution explicit checks
on the exercise of those powers. As a consequence,
each branch of government imposes limits on the
primary functions of the others. A few examples
illustrate this point:
Congress has the right to pass legislation, but the

president may veto the bills passed by Congress.
The president may veto bills passed by Congress,
but the legislature may override the president’s
veto.
The president may make treaties with foreign
powers, but the Senate must vote its approval of
those treaties.
The president is commander in chief of the army
and navy, but Congress must pass legislation to
raise armies, regulate the military, and declare
war.
The president may nominate federal judges, but
the Senate must confirm them.
The judiciary may interpret the law and even
strike down laws as being in violation of the
Constitution—a power the Court asserted for itself
—but Congress may pass new legislation or
propose constitutional amendments.
Congress may pass laws, but the executive must
enforce them.
In addition to these offsetting powers, the framers

structured the branches so that the criteria and
procedures for selecting the officials of the
institutions differed, as did their tenures.
Consequently, the branches all have slightly different
sources of political power.
In the original version of the Constitution, these
differences were even more pronounced than they
are today. Back then the two houses of Congress
were politically dependent on different selection
processes. Members of the House were, as they are
today, directly elected by the people, and the seats
were apportioned among the states on the basis of
population. With terms of only two years, the
representatives were required to go back to the
people for review on a frequent and regular basis.
Senators, in contrast, were, and still are,
representatives of whole states, with each state,
regardless of size, having two members in the upper
chamber. But state legislatures originally selected
their senators, a system that was not changed until
1913, when the Seventeenth Amendment, which
imposed popular election of senators, was ratified.
The six-year, staggered terms of senators were
intended to make the upper house less immediately
responsive to the volatile nature of public opinion.
The Constitution dictated that the president be

selected by the Electoral College, a group of political
elites chosen by the people or their representatives
who would exercise judgment in casting their ballots
among presidential candidates. Although the
electors over time have ceased to perform any truly
independent selection function, presidential
selection remains a step away from direct popular
election. The president’s four-year term places the
office squarely between the tenures conferred on
representatives and senators. The original
Constitution placed no limit on the number of terms
a president could serve, but a two-term limit was
observed by tradition until 1940 and was then
imposed by constitutional amendment in 1951.
Differing altogether from the other two branches is

the judiciary, which was assigned the least
democratic selection system. The people have no
direct role in the selection or retention of federal
judges. Instead, the president nominates individuals
for the federal bench, and the Senate confirms or
rejects them. Once in office, federal judges serve for
life, removable against their will only through
impeachment. The intent of the framers was to make
the judiciary independent. To do so, they created a
system in which judges would not depend on the
mood of the masses or on a single appointing power.
Furthermore, judges would be accountable only to
their own philosophies and consciences, with no
periodic review or reassessment required.
Through a division of powers, an imposition of

checks, and a variation in selection and tenure
requirements, the framers hoped to achieve the
balanced government they desired. This structure,
they thought, would be the greatest protection
against abuses of power and government violations
of personal liberties and property rights. Many
delegates to the Constitutional Convention
considered this system of separation of powers a
more effective method of protecting civil liberties
than the formal pronouncements of a bill of rights.
Most political observers would conclude that the
framers’ invention has worked remarkably well.
Through the years, the relative strengths of the
branches have fluctuated. At certain times, the
judiciary has been exceptionally weak, such as
immediately after the Civil War. At other times, the
judiciary has been criticized as being too powerful,
such as when it repeatedly blocked New Deal
legislation in the 1930s or when it expanded civil
liberties during the Warren Court era. The executive
also has led the other branches in political power.
Beginning with the tenure of Franklin Roosevelt and
extending into the 1970s, references were often
made to the “imperial presidency.” But when one
branch gains too much power and abuses occur, as
in the case of Richard Nixon and the Watergate
crisis, the system tends to reimpose the balance
sought by the framers.
Nevertheless, debates continue over how best to

approach the separation of powers system from a
constitutional law perspective. In many of the cases
that follow, especially those in Chapter 5, you will
see justices vacillate between formalist and
functionalist approaches. Formalism emphasizes a
basic idea behind the system: that the Constitution
creates clear boundaries between and among the
branches of government by bestowing a primary
power on each. Under this school of thought, federal
judges and justices should not allow deviations from
this plan unless the text of the Constitution permits
them. Functionalism, in contrast, rejects strict
divisions among the branches and emphasizes
instead a more fluid system—one of shared rather
than separated powers. On this account, as long as
actions by Congress or the president do not result in
the accumulation of too much power in any one
branch, the federal courts should be flexible,
enabling—not discouraging—experimentation.
Contemporary Thinking on the

Constitutional Scheme
The long-standing debate between functionalism and
formalism is largely a normative debate—that is, it
centers on how best to interpret the Constitution. As
you read the cases to come and consider the logic
behind the separation of powers doctrine, you may
also want to take into account two contemporary
approaches for understanding relationships among
the three branches of government.
First are the “separation of powers games” offered

by law professor William Eskridge and political
scientists John Ferejohn and Barry Weingast, among
others.1 These games typically operate under some
simple assumptions about the goals of the various
institutions of government and the way the political
process works. According to this school of thought,
the aim of the institutions of government is to see
the government’s policy—for our purposes, the
ultimate state of the law—reflect the institutions’
positions. To put it another way, the branches hope
to set policy as close as possible to their ideal or
most preferred point. The problem—and here is
where assumptions about the nature of the process,
including the separation of powers doctrine, come in
—is that the political institutions do not make policy
in isolation from one another. Rather, policy is set (or
the game is played out) along the lines set out in
Figure II-1. In this example, the Supreme Court
makes the first “move” when it interprets a
congressional statute or a constitutional provision.
Congressional committees and other “gatekeepers”
(majority-party leaders) then must decide whether
they want to introduce legislation to override the
Court’s decision; if they do, Congress acts by
adopting the gatekeepers’ recommendations,
adopting a different version of it, or rejecting it. If
Congress passes legislation, then the president has
the option of vetoing the law; if he does, the last
move rests with Congress, which must decide
whether to override the president’s veto.2[Insert
Figure; pickup from pg. 53 of 9e; see PDF for edits.]
1 William N. Eskridge Jr., “Reneging on History:

Playing the Court/Congress/President Civil Rights
Game,” California Law Review 79 (1991): 613–684;
Eskridge, “Overriding Supreme Court Statutory
Interpretation Decisions,” Yale Law Journal 101
(1991): 331–455; John A. Ferejohn and Barry
Weingast, “Limitation of Statutes: Strategic
Statutory Interpretation,” International Review of
Law and Economics 12 (1992): 263–279. See also
Knight and Epstein, The Choices Justices Make; and
Pablo T. Spiller and Rafael Gely, “Congressional
Control or Judicial Independence: The Determinants
of U.S. Supreme Court Labor-Relations Decisions,”
RAND Journal of Economics 23 (1992): 463–492.
2 In Figure II-1 we depict a sequence in which the

Court makes the first “move” and Congress the last.
We could lay out other sequences and include other
(or different) actors: we could construct a scenario
in which the Court moves first; Congress again goes
next, but this time it proposes a constitutional
amendment (rather than a law); and the states (not
the president) have the last turn by deciding
whether to ratify the amendment.
Figure II-1 The Supreme Court as a Strategic

National Policy Maker
Source: Courtesy of Lee Epstein, Jack Knight,
and Andrew Martin, “The Supreme Court as a
Strategic National Policy Maker,” Emory Law
Journal 50 (2001): 593.
From these premises about the institutions’ goals

and about the sequence of play, perhaps you can see
why the separation of powers doctrine is so
important. Think about it this way. If the Supreme
Court were the only institution of government, it
would merely set policy at its preferred point; it
would not need to consider the positions of Congress
or the president. We know, however, that the Court is
but one of several players in the game; therefore, it
will take into account the preferences of others. If it
sets the policy too far away from the position of, say,
Congress, it could face an override. Congress might
attempt to overturn the Court’s decision with new
legislation or “punish” the justices in other ways.
The last statement raises an interesting point: the

separation of powers games proposed by Eskridge
and others are designed to cover how the Court
interprets federal laws because it is clear that
Congress and the president can modify those
interpretations by passing a new law. But these
games are applicable (though perhaps in a different
form) to constitutional interpretation as well.3 The
reason is that, as we consider in Chapter 2, the other
branches possess various powers through which they
can modify constitutional decisions or invoke various
mechanisms to sanction the Court.
3 See Lee Epstein, Jack Knight, and Andrew Martin,

“The Supreme Court as a Strategic National Policy
Maker,” Emory Law Journal 50 (2001): 583–612;
Rosenberg, “Judicial Independence and the Reality
of Political Power”; Jeffrey A. Segal, Chad
Westerland, and Stefanie A. Lindquist, “Congress,
the Supreme Court and Judicial Review: Testing a
Constitutional Separation of Powers Model,”
American Journal of Political Science 55 (2011): 89–
104.
And that point brings us to the second approach, one

that places emphasis on the “Constitution outside
the Court.” According to this account, the idea that
only judges and justices interpret the Constitution is
not only naive, but it also belies history. This at least
was the argument Walter F. Murphy advanced more
than thirty years ago when he asked, “Who shall
interpret the Constitution?” His answer? Naturally,
the courts, but not only the courts. The president,
Congress, and even the people can also lay claim to
playing a role in constitutional interpretation.
Indeed, to Professor Murphy, that there is “no
ultimate constitutional interpreter” is simply “a fact
of American political life.”4 By way of example,
Murphy points out that presidents of the stature of
Thomas Jefferson, Andrew Jackson, and Abraham
Lincoln were not willing to concede that they or
Congress were obligated to accept the Supreme
Court’s constitutional interpretation as legally
binding.
4 Murphy, “Who Shall Interpret the Constitution?”
To say that contemporary scholars have rallied

around Murphy’s thinking is to seriously understate
the case. Since the late 1990s, a multitude of
volumes have dealt with how Congress and the
president are involved in constitutional
interpretation.5 That modern-day presidents,
including George W. Bush and Barack Obama, have
issued “signing statements” to express their
interpretation of congressional legislation almost
guarantees that more research will be forthcoming.6
5 See, for example, Larry Kramer, The People
Themselves: Popular Constitutionalism and Judicial
Review (New York: Oxford University Press, 2004);
Mark Tushnet, Taking the Constitution Away from
the Courts (Princeton, NJ: Princeton University
Press, 1999); David P. Currie, The Constitution in
Congress: Democrats and Whigs, 1829–1861
(Chicago: University of Chicago Press, 2005); and J.
Mitchell Pickerill, Constitutional Deliberation in
Congress: The Impact of Judicial Review in a
Separated System (Durham, NC: Duke University
Press, 2004).
6 Presidents may issue signing statements at the

time they sign congressional bills. In such
statements, they note their own interpretations of
the laws or even assert their views of the
“constitutional limits on the implementation” of
some of the laws’ provisions. For more on signing
statements, see Philip J. Cooper, “George W. Bush,
Edgar Allan Poe, and the Use and Abuse of
Presidential Signing Statements,” Presidential
Studies Quarterly 35 (2005): 515–532; see also
Chapter 4 of this volume.
Different as they may be, both approaches to the

separation of powers system stress the role of all
three branches of government in constitutional
interpretation. The first emphasizes possible
constraints on the Court imposed by the president
and Congress. The second underscores that it is not
only the Court that interprets the Constitution; the
other institutions also can take and have taken on
that task. As we explore the constitutional
separation of powers/checks and balances system,
keep in mind these contemporary accounts.
Although our focus is on the Court’s interpretation of
various constitutional provisions, you will have a
chance to consider the functions of the legislative
and executive branches as well. You also will have
ample opportunity to think about the extent to which
the justices’ perceptions of Congress and the
president influence their decisions. In the coming
pages we examine the significant political and legal
clashes among the executive, legislative, and judicial
branches, focusing on how the justices of the
Supreme Court have interpreted and applied the
Constitution to settle disputes. Throughout these
constitutional controversies, what takes center stage
are fundamental issues of institutional powers and
the constraints placed on those powers.
Chapter Two The Judiciary
BETWEEN 1932 AND 1983 Congress attached

legislative veto provisions to more than two hundred
laws. Although these provisions took different forms,
they usually authorized one house of Congress to
invalidate a decision of the executive branch. One
provision in the Immigration and Nationality Act
gave the U.S. attorney general power to suspend the
deportation of aliens, but Congress reserved the
authority to veto any such suspension by a majority
vote in either house. In Immigration and
Naturalization Service v. Chadha (1983) (excerpted
in Chapter 5), the U.S. Supreme Court held that this
device violated specific clauses as well as general
principles contained in the U.S. Constitution. In
doing so, as Justice Byron White wrote in his dissent,
the Court sounded the “death knell” for the
legislative veto.1
1 It is worth noting that White’s statement is true in

theory but only partially true in practice for the
reasons we explain later in the chapter.
In many ways, the Court’s action was less than

startling. For two centuries federal courts have
exerted the power of judicial review—that is, the
power to review acts of government to determine
their compatibility with the U.S. Constitution. And
even though the Constitution does not explicitly give
them such power, the courts’ authority to do so has
been challenged only occasionally. Today we take for
granted the notion that federal courts may review
government actions and strike them down if they
violate constitutional mandates.
Nevertheless, when courts exert this power, as the

U.S. Supreme Court did in Chadha, they provoke
controversy. Look at it from this perspective:
Congress, composed of officials we elect, passed
these legislative veto provisions, which were then
rendered invalid by a Supreme Court of nine
unelected justices. Such an occurrence strikes some
people as quite odd, perhaps even antidemocratic.
Why should we Americans allow a branch of
government over which we have no electoral control
to review and nullify the actions of the government
officials we elect to represent us?
The alleged antidemocratic nature of judicial review

is just one of many controversies surrounding the
practice. In this chapter, we review others—both in
theory and in practice. First, however, we explore
Article III of the U.S. Constitution and the Judiciary
Act of 1789, which serve as foundations of judicial
power. Understanding both is crucial because the
cases in this chapter explore the parameters of the
judiciary’s authority. Next, we turn to the
development of judicial review in the United States.
Judicial review is the primary weapon available to

the federal courts, the check they have on other
branches of government. Because this power can be
awesome in scope, many observers tend to
emphasize it to the neglect of factors that constrain
its use, as well as other checks on the power of the
Court. In the second and third parts of this chapter,
we explore the limits on judicial power.
Establishment of the Federal

Judiciary
The federal judicial system is built on a foundation
created by two major statements of the 1780s:
Article III of the U.S. Constitution and the Judiciary
Act of 1789. In this section, we consider both, with
an emphasis on their content and the debates they
provoked. Note, in particular, the degree to which
the major controversies reflect more general
concerns about federalism. Designing and fine-
tuning the U.S. system of government required many
compromises over the balance of power between the
federal government and the states, and Article III
and the Judiciary Act are no exceptions.
Article III
The framers of the Constitution spent days upon
days debating the contents of Article I (the
legislature) and Article II (the executive), but they
had comparatively little trouble drafting Article III.
Indeed, it caused the least controversy of any major
constitutional provision. Why? One reason is that the
states and Great Britain had well-entrenched court
systems, and the founders had firsthand knowledge
of the workings of courts—knowledge they lacked
about the other political institutions they were
establishing. Second, thirty-four of the fifty-five
delegates to the Constitutional Convention were
lawyers or had some training in the law. They held a
common vision of the general role courts should play
in the new polity.2
2 See Daniel A. Farber and Suzanna Sherry, A

History of the American Constitution, 2nd ed. (St.
Paul, MN: Thomson/West, 2005), 65.
Alexander Hamilton expressed that vision in

Federalist No. 78, one of a series of papers designed
to generate support for the ratification of the
Constitution. Hamilton specifically referred to the
judiciary as the “least dangerous branch” of
government; he (and virtually all of the founders)
saw the courts as legal, not political, bodies. He
wrote, “If [judges] should be disposed to exercise
will instead of judgment, the consequence would
equally be the substitution of their pleasure to that
of the legislative body.” To that end, the framers
agreed on the need for judicial independence. They
accomplished this goal by allowing judges to “hold
their offices during good behaviour”—that is, giving
them life tenure. This is not to say that Congress
lacked the power to remove federal judges from
office; the Constitution provides for a two-step
removal process: impeachment by a majority of the
House and conviction by two-thirds of the Senate. It
is rather to say that the framers gave federal judges
a good deal more job security by giving them tenure
for life and not subjecting them to periodic public
checks through the electoral process. The framers
also concurred on the need to block Congress from
reducing a federal judge’s compensation during
terms of continuous service. The compensation
clause, located in Article III, implies judicial
independence: the framers hoped to prevent
members of the legislature upset with court
decisions from punishing judges by cutting their
pay.3 As we’ll see in the case of Nixon v. United
States (1974) (excerpted in Chapter 4), Congress has
removed federal judges (though never a Supreme
Court justice).4
3 Compensation clause cases are relatively rare, but

one such dispute, United States v. Hatter, came
before the Court in 2001. Here, the justices
considered whether the clause prohibits the
government from collecting certain Medicare and
Social Security taxes from eight federal judges who
were appointed before Congress extended the taxes
to federal employees. Writing for the Court, Justice
Stephen Breyer concluded that the compensation
clause “does not prevent Congress from imposing a
‘non-discriminatory tax laid generally’ upon judges
and other citizens, but it does prohibit taxation that
singles out judges for specially unfavorable
treatment.” On that logic, the Court concluded that
Congress could apply the Medicare tax—a
nondiscriminatory tax—to then-sitting federal
judges. But because the special retroactivity-related
Social Security rules, which Congress enacted in
1984, “effectively singled out then-sitting federal
judges for unfavorable treatment,” the Court held
that the compensation clause forbade its application
to the judges.
4 Justice Samuel P. Chase was impeached by the

House but not convicted by the Senate.
Federal judges continue to enjoy these protections,

but many state court judges do not. In only three
states do judges hold their jobs for life or until they
reach a specified retirement age. In the remaining
states judges must periodically face the electorate.
In some states the voters decide whether to retain
judges; in other states judges must be elected (or
reelected), just as any other officials are. Either way,
the practice of retaining or reelecting judges has
raised interesting constitutional questions. In
Caperton v. A. T. Massey Coal Co. (2009) (excerpted
in Chapter 10), for example, the Court considered
whether a judge should recuse himself from a case
because he had received substantial campaign
contributions from a person with an interest in the
outcome. The majority held that when there is a
“serious risk of actual bias”—as it seemed in
Caperton—failure to recuse amounts to a violation of
the due process clause, which requires a “fair trial in
a fair tribunal.”
That the framers settled on life tenure for federal

judges, and not some form of electoral or legislative
check, and more generally shared a fundamental
view of the role of the federal judiciary does not
mean that they agreed on all the specifics. For
example, although they agreed that federal judges
would serve for “good behavior,” the delegates
debated how the judges would get their jobs—that is,
who appoints them. The Virginia Plan, which served
as the basis for many of the proposals debated at the
convention, suggested that Congress should appoint
these judges. Some of the delegates backed this
idea, while others proposed that the Senate should
make the appointments. Benjamin Franklin argued
that perhaps lawyers should decide who would sit on
the courts. After all, Franklin joked, the lawyers
would select “the ablest of the profession in order to
get rid of him, and share his practice among
themselves.”5 Finally, the delegates decided that the
appointment power should be given to the president,
with the “advice and consent” of the Senate.
Accordingly, the power to appoint federal judges is
located in Article II, which lists the powers of the
president. The Senate, however, has read the “advice
and consent” phrase to mean that it must approve
the president’s nominees by a majority vote. And it
has taken its part in the process quite seriously,
rejecting outright 12 of the 162 nominations to the
Supreme Court over the past two centuries—a
greater number (proportionally speaking) than any
other group of presidential appointees requiring
senatorial approval (see Table 2-1). Another twenty-
five Supreme Court nominations transmitted to the
Senate were withdrawn, postponed, or otherwise not
acted on.6
5 Quoted in Farber and Sherry, A History of the

American Constitution, 70.
6 More specifically, of the 162 Supreme Court

nominations that presidents sent to the Senate. Of
these, according to the U.S. Senate’s Web site
(www.senate.gov/pagelayout/reference/nominations/
Nominations.htm), 125 were confirmed, though 7
declined to serve. The Senate rejected 12. The rest
failed to obtain confirmation because they were
withdrawn, postponed, or otherwise not acted on.
Note, however, that a withdrawal can become a
successful appointment. After George W. Bush
withdrew John G. Roberts’s nomination to replace
Sandra Day O’Connor, he nominated Roberts to
serve as chief justice. The Senate confirmed Roberts,
78–22. For data on all nominations, see Epstein et
al., Supreme Court Compendium, Table 4-15.
Other debates centered on the structure of the

American legal system. The delegates agreed that
there would be at least one federal court, the
Supreme Court of the United States, but disagreed
over the establishment of federal tribunals inferior
to the Supreme Court. The Virginia Plan suggested
that Congress should establish lower federal courts.
Delegates who favored a strong national government
agreed with this plan, with some wanting to insert
language in Article III to create such courts.
But delegates favoring states’ rights over those of

the national government vehemently objected to the
creation of any federal tribunals other than the U.S.
Supreme Court. As one delegate, Pierce Butler of
South Carolina, put it, “The people will not bear such
an innovation. The states will revolt at such
encroachments.”7 Instead of creating new federal
courts, they proposed that the existing state courts
should hear cases in the first instance, with an
allowance for appeals to the U.S. Supreme Court.
“This dispute,” as Justice Hugo Black wrote in 1970,
“resulted in compromise. One ‘supreme Court’ was
created by the Constitution, and Congress was given
the power to create other federal courts.”8 The first
sentence of Article III—the vesting clause—reflects
this compromise:
7 Quoted in Daniel A. Farber and Suzanna Sherry, A

History of the American Constitution, 2nd edition
(St. Paul, MN: Thomson/West, 2005), 70.
8 Atlantic Coast Line Railroad Co. v. Brotherhood of

Locomotive Engineers (1970).
The judicial power of the United States, shall be
vested in one Supreme Court, and in such
inferior courts as the Congress may from time to
time ordain and establish.
In other words, Article III does not establish a

system of lower federal courts; rather, it gives
Congress the option of doing so.
Did the framers anticipate that Congress would take

advantage of this language and create lower federal
courts? The answer is likely yes because much of
Article III—specifically Section 2, the longest part—
defines the jurisdiction of federal courts that did not
yet exist (or at least the jurisdiction that Congress
could give them).9 In Section 2, the framers outlined
two types of jurisdiction that the federal courts
might exercise: over cases involving certain subjects
or over cases brought by certain parties (see Box 2-
1).
9 The traditional and still dominant view of Section 2

of Article III is that Congress is neither required to
create federal courts nor required to provide such
courts with the full range of jurisdiction over the
cases listed in Section 2. See, for example, Sheldon
v. Sill (1850), in which the Supreme Court wrote, “It
must be admitted, that if the Constitution had
ordained and established the inferior courts, and
distributed to them their respective powers, they
could not be restricted or divested by Congress.” But
“because the Constitution did not do this, the Court
concluded that Congress may withhold from any
court of its creation jurisdiction of any of the
enumerated controversies. Courts created by statute
can have no jurisdiction other than that which the
statute confers.” Linda Mullenix, Martin H. Redish,
and Georgene Vairo, Understanding the Federal
Courts and Jurisdiction (New York: Matthew Bender,
1998), 7. Still, in Martin v. Hunter’s Lessee (1816),
Justice Story took the position that the Constitution
required Congress to create the lower courts: “The
language of the article throughout is manifestly
designed to be mandatory upon the legislature. Its
obligatory force is so imperative, that Congress
could not, without a violation of its duty, have
refused to carry it into operation.” If this is so, then
it seems reasonable to question the extent of
Congress’s discretion over the jurisdiction of the
lower federal courts. Story’s view has not been
widely adopted, but see Akil Amar, “A Neo-Federalist
View of Article III: Separating the Two Tiers of
Federal Jurisdiction,” Boston University Law Review
65 (1985): 205–274. See also our discussion of the
Court’s jurisdiction in this chapter.
Table 2-1
Sources: David Savage, CQ’s Guide to the U.S.

Supreme Court, 4th ed. (Washington, DC: CQ Press,
2004); Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth,
and Thomas G. Walker, The Supreme Court
Compendium: Data, Decisions, and Developments, 6th
ed. (Thousand Oaks, CA: CQ Press, 2016), Table 4-15;
and Gregory A. Caldeira and John R. Wright, “Lobbying
for Justice,” in Contemplating Courts, ed. Lee Epstein
Note: This table includes only nominees rejected, with
a vote, by the Senate. It excludes the twenty-four
nominations that were transmitted to the Senate but
ultimately withdrawn, tabled, postponed, or not acted
on.
Box 2-1 Jurisdiction of the Federal Courts as

Defined in Article III
Jurisdiction of the Lower

Federal Courts
Subjects falling under their authority:
Cases involving the U.S. Constitution, federal

laws, and treaties
Cases affecting ambassadors, public ministers,
and consuls
Cases of admiralty and maritime jurisdiction
Parties falling under their authority:
United States
Controversies between two or more states
Controversies between a state and citizens of
another statea
Controversies between citizens of different
states
Controversies between citizens of the same
state claiming lands under grants of different
states
Controversies between a state, or the citizens
thereof, and foreign states, citizens, or subjects
a. In 1795 this was modified by the Eleventh

Amendment, which removed from federal
jurisdiction those cases in which a state is sued by
the citizens of another state.
Jurisdiction of the Supreme

Court
Original jurisdiction:
Cases affecting ambassadors, public ministers,

and consuls
Cases to which a state is a party
Appellate jurisdiction:
Cases falling under the jurisdiction of the lower

federal courts, “with such Exceptions, and
under such Regulations as the Congress shall
make.”
As Box 2-1 also indicates, Section 2 contains

separate language on the authority of the U.S.
Supreme Court, providing for original and appellate
jurisdiction—both of which come into play in the
cases we excerpt below. Note, though, that Article III
is silent over whether the Court has judicial review
power. It is not that the framers didn’t consider some
system for reviewing and invalidating government
acts; they did. Several times over the course of the
convention, they took up James Madison’s proposal
for the creation of a council of revision, made up of
Supreme Court justices and the president, with the
power to veto legislative acts. But each time the
proposal came up, the delegates voted to defeat it.
In Marbury v. Madison (1803), the first case we
excerpt in this chapter, Chief Justice John Marshall
in essence articulated such veto power for the Court.
Those who take a dim view of Marshall’s decision
occasionally point to the delegates’ rejection of the
council of revision as proof that Marshall skirted the
framers’ intent.
Judiciary Act of 1789

Although Section 2 of Article III suggests that the
framers likely anticipated the creation of lower
federal courts, recall that Article III itself did not
establish any courts other than the U.S. Supreme
Court. It was left up to Congress to create (or not)
additional federal courts.10 Dominated by
Federalists, the First Congress did just that in the
Judiciary Act of 1789, giving some “flesh” to the
“skeleton” that was Article III.11
10 See note 8.
11 Russell R. Wheeler and Cynthia Harrison,

Creating the Federal Judicial System (Washington,
DC: Federal Judicial Center, 1989), 2.
The Judiciary Act of 1789 is a long and relatively
complex law that, at its core, had two purposes.
First, it sought to establish a federal court structure,
which it accomplished by providing for the Supreme
Court and circuit and district courts. Under the law,
the Supreme Court was to have one chief justice and
five associate justices. That the Court initially had
six members illustrates an important point:
Congress, not the U.S. Constitution, determines the
number of justices on the Supreme Court. That
number has been nine since 1869.
As Figure 2-1 shows, the act also created thirteen

district courts. Each of the eleven states that had
ratified the Constitution received a court, with
separate tribunals created for Maine and Kentucky,
which were then parts of Massachusetts and
Virginia, respectively. District courts, then as now,
were presided over by one judge. But the three
newly established circuit courts were quite
extraordinary in composition. Congress grouped the
district courts—except those for Kentucky and Maine
—geographically into the Eastern, Middle, and
Southern Circuits and put one district court judge
and two Supreme Court justices in charge of each. In
other words, three judges would hear cases in the
circuit courts. Today, appeals courts continue to hear
cases in panels of three. However, these courts now
have their own permanent judges, making regular
participation by district court judges and Supreme
Court justices unnecessary.
Figure 2-1 The Federal Court System under the
Judiciary Act of 1789
Source: Russell R. Wheeler and Cynthia

Harrison, Creating the Federal Judicial System,
3rd ed. (Washington, DC: Federal Judicial Center,
2005), 5.
Note: The Judiciary Act of 1789 created thirteen

districts and placed eleven of them in three
circuits: the Eastern (E), Middle (M), and
Southern (S). Each district had a district court,
which was a trial court with a single district
judge and primarily admiralty jurisdiction. A
circuit court also met in each district of the
circuit and was composed of the district judge
and two Supreme Court justices. The circuit
courts exercised primarily diversity and criminal
jurisdiction and heard appeals from the district
courts in some cases. The districts of Maine and
Kentucky (parts of the states of Massachusetts
and Virginia, respectively) were part of no
circuit; their district courts exercised both
district and circuit court jurisdiction.
A second goal of the Judiciary Act was to specify the

jurisdiction of the federal courts. Section 2 of Article
III speaks broadly about the authority of federal
courts, potentially giving them jurisdiction over
cases involving particular parties or subjects or, in
the case of the Supreme Court, original and
appellate jurisdiction (see Box 2-1). The Judiciary Act
provided more specific information, defining the
parameters of authority for each of the newly
established courts and for the U.S. Supreme Court.
The district courts were to serve as trial courts,
hearing cases involving admiralty issues, forfeitures
and penalties, and petty federal crimes, as well as
minor U.S. civil cases. Congress recognized that
some of these courts would be busier than others
and fixed judicial salaries accordingly. Delaware
judges received only $800 per year for their
services, while their counterparts in South Carolina,
a coastal state that would generate many admiralty
disputes, earned $1,800.12
12 Ibid., 6.
Unlike today, the circuit courts were trial courts with

jurisdiction over cases involving citizens from
different states and major federal criminal and civil
cases. Congress also gave them limited appellate
authority to hear major civil and admiralty disputes
coming out of the district courts.
Finally, the 1789 act contained several provisions

concerning the jurisdiction of the U.S. Supreme
Court. Section 13 reiterated the Court’s authority
over suits in the first instance (its original
jurisdiction) and gave the justices appellate
jurisdiction over major civil disputes, those involving
more than $2,000, which was a good deal of money
back then. Section 13 also spoke about the Court’s
authority to issue writs of mandamus, which
command a public official to carry out a particular
act or duty: “The Supreme Court . . . shall have the
power to issue . . . writs of mandamus, in cases
warranted by the principles and usages of law, to
any courts appointed, or persons holding office,
under the authority of the United States.” This
matter may seem trivial, but, as we shall see, the
Court’s interpretation of this particular provision
formed the centerpiece of Marbury v. Madison.
Another part of the act, Section 25, authorized the

Supreme Court to review certain kinds of cases
coming out of the states. Specifically, the Court
could now hear appeals from the highest state courts
if those tribunals upheld state laws against claims
that the laws violated the Constitution or denied
claims based on the U.S. Constitution, federal laws,
or treaties. This section moved to the fore in Martin
v. Hunter’s Lessee, which we take up later in the
chapter.
At first glance, the components of the 1789 act—its

establishment of a federal court system and of rules
governing that system—appear to favor the
Federalists’ position. Recall that Anti-Federalist
delegates at the Constitutional Convention did not
want the document even to mention lower federal
tribunals, much less to give Congress the authority
to establish them. The 1789 act did that and more: it
gave the Supreme Court the power to review state
supreme court cases—surely an Anti-Federalist’s
worst nightmare! But it would be a mistake to
believe that the act did not consider the position
taken by states’ rights advocates. For example, the
1789 act used state lines as the boundaries for the
district and circuit courts, even though the
boundaries could have been defined in other ways.13
That Congress tied the boundaries to the states may
have been a concession to the Anti-Federalists, who
wanted the judges of the federal courts to feel they
were part of the legal and political cultures of the
states.
13 As Wheeler and Harrison note, “The creators of

the federal judiciary might have established separate
judicial administrative divisions that would ensure
roughly equal allocation of workload and would be
subject to realignment to maintain the allocation”
(ibid.).
Whichever side won or lost, passage of the 1789

Judiciary Act was a defining moment in American
legal history. It established the first federal court
system, one that is strikingly similar to that in effect
today. And, as we have suggested, it paved the way
for two landmark constitutional cases—Marbury v.
Madison and Martin v. Hunter’s Lessee—both of
which centered on judicial review, the major power
of the federal judiciary.14
14 It also was implicated in Cohens v. Virginia

(1821), which we discuss after the excerpt of Martin
v. Hunter’s Lessee.
Judicial Review
Judicial review is a powerful tool of federal courts
and there is some evidence that the framers
intended courts to have it, but, as we noted earlier, it
is not mentioned in the Constitution. Yet, even before
ratification of the Constitution, courts in seven
states, in at least eight cases, held that a state law
violated a state constitution (or some other
fundamental charter).15 So, too, early in U.S. history,
federal courts claimed it for themselves. In Hylton v.
United States (1796), Daniel Hylton challenged the
constitutionality of a 1793 federal tax on carriages.
According to Hylton, the act violated the
constitutional mandate that direct taxes must be
apportioned on the basis of population. With only
three justices participating, the Court upheld the
act. But even by considering the challenge, the Court
in effect reviewed the constitutionality of an act of
Congress.
15 Saikrishna B. Prakash and John C. Yoo, “The

Origins of Judicial Review,” University of Chicago
Law Review 70 (2003): 887–982.
Not until 1803, however, would the Court invoke

judicial review to strike down legislation it deemed
incompatible with the U.S. Constitution. That
decision came in the landmark case Marbury v.
Madison. How does Chief Justice Marshall justify the
Court’s power to strike down legislation in light of
the failure of the newly framed Constitution to
provide it?
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803)
http://caselaw.findlaw.com/us-supreme-
court/5/137.html
Vote: 4 (Chase, Marshall, Paterson, Washington)
OPINION OF THE COURT: Marshall

NOT PARTICIPATING: Cushing, Moore
Facts:
When voting in the presidential election of 1800
was over, it was apparent that Federalist president
John Adams had lost after a long and bitter
campaign, but it was not known who had won.16
The Electoral College voting resulted in a tie
between the Republican candidate, Thomas
Jefferson, and his running mate, Aaron Burr, and
the election had to be settled in the House of
Representatives. In February 1801 the House
elected Jefferson. This meant that the Federalists
no longer controlled the presidency; they also lost
their majority in Congress. Prior to the election,
the Federalists controlled more than 56 percent of
the 106 seats in the House and nearly 70 percent
of the 32 seats in the Senate. After the election,
those percentages declined to 35 percent and 44
percent, respectively.17
16 For analyses of the events surrounding

Marbury, see Jack Knight and Lee Epstein, “On the
Struggle for Judicial Supremacy,” Law and Society
Review 30 (1996): 87–120; Dean Alfange Jr.,
“Marbury v. Madison and Original Understandings
of Judicial Review: In Defense of Traditional
Wisdom,” Supreme Court Review (1994): 329–446.
17 Data are from the House’s and Senate’s Web

sites: http://history.house.gov/Institution/Party-
Divisions/Party-Divisions/ and
http://www.senate.gov/history/partydiv.htm.
With these losses in the elected branches, the

Federalists took steps to maintain control of the
third branch of government, the judiciary. The
lame-duck Congress enacted the Circuit Court Act
of 1801, which created six new circuit courts and
several district courts to accommodate the new
states of Kentucky, Tennessee, and Vermont. These
new courts required judges and support staff such
as attorneys, marshals, and clerks. As a result,
during the last six months of his term in office
Adams made more than two hundred nominations,
with sixteen judgeships (called the “midnight
appointments” because of the rush to complete
them before Adams’s term expired) approved by
the Senate during his last two weeks in office.
An even more important opportunity had arisen in

December 1800, when the third chief justice of the
United States, Federalist Oliver Ellsworth,
resigned so that Adams—not Jefferson—could
name his replacement. Adams first offered the
post to John Jay, who had served as the first chief
justice before leaving the Court to take the then-
more-prestigious office of governor of New York.
When Jay refused, Adams turned to his secretary
of state, John Marshall, an ardent Federalist. The
Senate confirmed Marshall in January 1801, but
he also continued to serve as secretary of state.
In addition, the Federalist Congress passed the

Organic Act of 1801, which authorized Adams to
appoint forty-two justices of the peace for the
District of Columbia. It was this seemingly
innocuous law that set the stage for the dramatic
case of Marbury v. Madison. In the confusion of
the Adams administration’s last days in office,
Marshall, the outgoing secretary of state, failed to
deliver some of these commissions. When the new
administration came into office, James Madison,
the new secretary of state, acting under orders
from Jefferson, refused to deliver at least five
commissions.18 Indeed, some years later,
Jefferson explained the situation in this way:
18 Historical accounts differ, but it seems that

Jefferson decreased the number of Adams’s
appointments to justice of the peace positions to
thirty from forty-two. Twenty-five of these thirty
appointees received their commissions, but five,
including William Marbury, did not. See Francis N.
Stites, John Marshall (Boston: Little, Brown,
1981), 84.
I found the commissions on the table of the

Department of State, on my entrance into
office, and I forbade their delivery. Whatever
is in the Executive offices is certainly deemed
to be in the hands of the President, and in this
case, was actually in my hands, because when
I countermanded them, there was as yet no
Secretary of State.19
19 Quoted in Charles Warren, The Supreme Court

in United States History, vol. 1 (Boston: Little,
Brown, 1922), 244.
As a result, in 1801 William Marbury and three

others who were denied their commissions went
directly to the Supreme Court and asked it to
issue a writ of mandamus ordering Madison to
deliver the commissions. Marbury thought he
could take his case directly to the Court because
Section 13 of the 1789 Judiciary Act gives the
Court the power to issue writs of mandamus to
anyone holding federal office. The relevant
passage of Section 13 reads as follows:
The Supreme Court shall . . . have appellate

jurisdiction from the circuit courts and courts
of the several states, in the cases herein after
specifically provided for; and shall have power
to issue . . . mandamus in cases warranted by
the principles and usages of law, to any courts
appointed, or persons holding office, under the
authority of the United States.
In this volatile political climate, Marshall, now

serving as chief justice, was perhaps in the most
tenuous position of all. On one hand, he had been
a supporter of the Federalist Party, which now
looked to him to “scold” the Jefferson
administration. On the other, Marshall wanted to
avoid a confrontation between the Jefferson
administration and the Supreme Court, which not
only seemed imminent but also could end in
disaster for the Court and the struggling nation. In
fact, Jefferson and his party were so annoyed with
the Court for agreeing to hear the Marbury
dispute that they began to consider impeaching
Federalist judges—with two justices (Samuel
Chase and Marshall himself) high on their lists.
Note, too, the year in which the Court handed
down the decision in Marbury. The case was not
decided until two years after Marbury filed suit
because Congress and the Jefferson
administration had abolished the 1802 term of the
Court.
Arguments:
For the applicant, William Marbury:
After the president has signed a commission
for an office, it comes to the secretary of state.
Nothing remains to be done except that the
secretary perform those ministerial acts that
the law imposes upon him. His duty is to seal,
record, and deliver the commission. In such a
case the appointment becomes complete by
the signing and sealing; and the secretary does
wrong if he withholds the commission.
Congress has expressly given the Supreme
Court the power of issuing writs of mandamus.
Congress can confer original jurisdiction in
cases other than those mentioned in the
Constitution. The Supreme Court has
entertained jurisdiction on mandamus in
several cases—United States v. Lawrence, 3
U.S. 42 (1795), for example. In this case and in
others, the power of the Court to issue writs of
mandamus was taken for granted in the
arguments of counsel on both sides. It appears
there has been a legislative construction of the
Constitution upon this point, and a judicial
practice under it, since the formation of the
government.
For Secretary of State James

Madison:
(Madison and Jefferson intentionally did not
appear in court to emphasize their position that
the proceedings had no legitimacy. So it seems
that Madison was unrepresented and no argument
was made in his behalf.)
The Following Opinion of the Court Was

Delivered by the Chief Justice.
The peculiar delicacy of this case, the novelty of

some of its circumstances, and the real difficulty
attending the points which occur in it, require a
complete exposition of the principles, on which
the opinion to be given by the court, is founded.
These principles have been, on the side of the

applicant, very ably argued at the bar. In
rendering the opinion of the court, there will be
some departure in form, though not in substance,
from the points stated in that argument.
William Marbury
Maryland Historical Society
John Marshall
Library of Congress
In the order in which the court has viewed this
subject, the following questions have been
considered and decided.
1st. Has the applicant a right to the

commission he demands?
2dly. If he has a right, and that right has been
violated, do the laws of his country afford him
a remedy?
3dly. If they do afford him a remedy, is it a
mandamus issuing from this court?
The first object of enquiry is,
1st. Has the applicant a right to the

commission he demands? . . .
In order to determine whether he is entitled to

this commission, it becomes necessary to enquire
whether he has been appointed to the office. For if
he has been appointed, the law continues him in
office for five years, and he is entitled to the
possession of those evidences of office, which,
being completed, became his property. . . .
These are the clauses of the constitution and laws

of the United States, which affect this part of the
case. They seem to contemplate three distinct
operations:
1st. The nomination. This is the sole act of the

President, and is completely voluntary.
2d. The appointment. This is also the act of the
President, and is also a voluntary act, though it
can only be performed by and with the advice
and consent of the senate.
3d. The commission. To grant a commission to
a person appointed, might perhaps be deemed
a duty enjoined by the constitution. “He shall,”
says that instrument, “commission all the
officers of the United States.” . . .
The transmission of the commission, is a practice

directed by convenience, but not by law. It cannot
therefore be necessary to constitute the
appointment which must precede it, and which is
the mere act of the President. . . . A commission is
transmitted to a person already appointed; not to
a person to be appointed or not, as the letter
enclosing the commission should happen to get
into the post office and reach him in safety, or to
miscarry. . . .
James Madison
Library of Congress
Thomas Jefferson
Library of Congress
If the transmission of a commission be not

considered as necessary to give validity to an
appointment; still less is its acceptance. The
appointment is the sole act of the President; the
acceptance is the sole act of the officer, and is, in
plain common sense, posterior to the appointment.
...
Mr. Marbury, then, since his commission was

signed by the President, and sealed by the
secretary of state, was appointed; and as the law
creating the office, gave the officer a right to hold
for five years, independent of the Executive, the
appointment was not revocable; but vested in the
officer legal rights, which are protected by the
laws of his country.
To withhold his commission, therefore, is an act
deemed by the court not warranted by law, but
violative of a vested legal right.
This brings us to the second enquiry; which is,
2dly. If he has a right, and that right has been

violated, do the laws of his country afford him a
remedy?
The very essence of civil liberty certainly consists

in the right of every individual to claim the
protection of the laws, whenever he receives an
injury. One of the first duties of government is to
afford that protection. In Great Britain, the King
himself is sued in the respectful form of a petition,
and he never fails to comply with the judgment of
his court.
The government of the United States has been

emphatically termed a government of laws, and
not of men. It will certainly cease to deserve this
high appellation, if the laws furnish no remedy for
the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of

our country, it must arise from the peculiar
character of the case. . . .
It behooves us, then, to inquire whether there be

in its composition any ingredient which shall
exempt from legal investigation or exclude the
injured party from legal redress. . . .
Is it in the nature of the transaction? Is the act of

delivering or withholding a commission to be
considered as a mere political act belonging to the
Executive department alone, for the performance
of which entire confidence is placed by our
Constitution in the Supreme Executive, and for
any misconduct respecting which the injured
individual has no remedy?
That there may be such cases is not to be

questioned. But that every act of duty to be
performed in any of the great departments of
government constitutes such a case is not to be
admitted. . . .
It follows, then, that the question whether the

legality of an act of the head of a department be
examinable in a court of justice or not must always
depend on the nature of that act.
If some acts be examinable and others not, there

must be some rule of law to guide the Court in the
exercise of its jurisdiction.
In some instances, there may be difficulty in

applying the rule to particular cases; but there
cannot, it is believed, be much difficulty in laying
down the rule.
By the Constitution of the United States, the

President is invested with certain important
political powers, in the exercise of which he is to
use his own discretion, and is accountable only to
his country in his political character and to his
own conscience. To aid him in the performance of
these duties, he is authorized to appoint certain
officers, who act by his authority and in
conformity with his orders.
In such cases, their acts are his acts; and
whatever opinion may be entertained of the
manner in which executive discretion may be
used, still there exists, and can exist, no power to
control that discretion. The subjects are political.
They respect the nation, not individual rights, and,
being entrusted to the Executive, the decision of
the Executive is conclusive. . . .
But when the Legislature proceeds to impose on

that officer other duties; when he is directed
peremptorily to perform certain acts; when the
rights of individuals are dependent on the
performance of those acts; he is so far the officer
of the law, is amenable to the laws for his conduct,
and cannot at his discretion, sport away the vested
rights of others.
The conclusion from this reasoning is, that where

the heads of departments are the political or
confidential agents of the Executive, merely to
execute the will of the President, or rather to act
in cases in which the Executive possesses a
constitutional or legal discretion, nothing can be
more perfectly clear than that their acts are only
politically examinable. But where a specific duty is
assigned by law, and individual rights depend
upon the performance of that duty, it seems
equally clear that the individual who considers
himself injured, has a right to resort to the laws of
his country for a remedy. . . .
The question whether a right has vested or not, is,

in its nature, judicial, and must be tried by the
judicial authority. If, for example, Mr. Marbury had
taken the oaths of a magistrate, and proceeded to
act as one; in consequence of which a suit had
been instituted against him, in which his defence
had depended on his being a magistrate; the
validity of his appointment must have been
determined by judicial authority.
So, if he conceives that, by virtue of his

appointment, he has a legal right, either to the
commission which has been made out for him, or
to a copy of that commission, it is equally a
question examinable in a court, and the decision
of the court upon it must depend on the opinion
entertained of his appointment.
That question has been discussed, and the opinion

is, that the latest point of time which can be taken
as that at which the appointment was complete,
and evidenced, was when, after the signature of
the president, the seal of the United States was
affixed to the commission.
It is then the opinion of the court,
1st. That by signing the commission of Mr.

Marbury, the president of the United States
appointed him a justice of peace, for the
county of Washington in the district of
Columbia; and that the seal of the United
States, affixed thereto by the secretary of
state, is conclusive testimony of the verity of
the signature, and of the completion of the
appointment; and that the appointment
conferred on him a legal right to the office for
the space of five years.
2dly. That, having this legal title to the office,
he has a consequent right to the commission; a
refusal to deliver which, is a plain violation of
that right, for which the laws of his country
afford him a remedy.
It remains to be enquired whether,
3dly. He is entitled to the remedy for which he

applies.
The act to establish the judicial courts of the

United States authorizes the supreme court “to
issue writs of mandamus, in cases warranted by
the principles and usages of law, to any courts
appointed, or persons holding office, under the
authority of the United States.”
The secretary of state, being a person holding an

office under the authority of the United States, is
precisely within the letter of the description; and
if this court is not authorized to issue a writ of
mandamus to such an officer, it must be because
the law is unconstitutional, and therefore
absolutely incapable of conferring the authority,
and assigning the duties which its words purport
to confer and assign.
The constitution vests the whole judicial power of

the United States in one supreme court, and such
inferior courts as congress shall, from time to
time, ordain and establish. This power is expressly
extended to all cases arising under the laws of the
United States; and consequently, in some form,
may be exercised over the present case; because
the right claimed is given by a law of the United
States.
In the distribution of this power it is declared that
“the supreme court shall have original jurisdiction
in all cases affecting ambassadors, other public
ministers and consuls, and those in which a state
shall be a party. In all other cases, the supreme
court shall have appellate jurisdiction.”
It has been insisted, at the bar, that as the original

grant of jurisdiction, to the supreme and inferior
courts, is general, and the clause, assigning
original jurisdiction to the supreme court, contains
no negative or restrictive words; the power
remains to the legislature, to assign original
jurisdiction to that court in other cases than those
specified in the article which has been recited;
provided those cases belong to the judicial power
of the United States.
If it had been intended to leave it in the discretion

of the legislature to apportion the judicial power
between the supreme and inferior courts
according to the will of that body, it would
certainly have been useless to have proceeded
further than to have defined the judicial power,
and the tribunals in which it should be vested. The
subsequent part of the section is mere
surplussage, is entirely without meaning, if such is
to be the construction. If congress remains at
liberty to give this court appellate jurisdiction,
where the constitution has declared their
jurisdiction shall be original; and original
jurisdiction where the constitution has declared it
shall be appellate; the distribution of jurisdiction,
made in the constitution, is form without
substance.
Affirmative words are often, in their operation,
negative of other objects than those affirmed; and
in this case, a negative or exclusive sense must be
given to them or they have no operation at all.
It cannot be presumed that any clause in the

constitution is intended to be without effect; and
therefore such a construction is inadmissible,
unless the words require it.
If the solicitude of the convention, respecting our

peace with foreign powers, induced a provision
that the supreme court should take original
jurisdiction in cases which might be supposed to
affect them; yet the clause would have proceeded
no further than to provide for such cases, if no
further restriction on the powers of congress had
been intended. That they should have appellate
jurisdiction in all other cases, with such
exceptions as congress might make, is no
restriction; unless the words be deemed exclusive
of original jurisdiction.
When an instrument organizing fundamentally a

judicial system, divides it into one supreme, and
so many inferior courts as the legislature may
ordain and establish; then enumerates its powers,
and proceeds so far to distribute them, as to
define the jurisdiction of the supreme court by
declaring the cases in which it shall take original
jurisdiction, and that in others it shall take
appellate jurisdiction; the plain import of the
words seems to be, that in one class of cases its
jurisdiction is original, and not appellate; in the
other it is appellate, and not original. If any other
construction would render the clause inoperative,
that is an additional reason for rejecting such
other construction, and for adhering to their
obvious meaning.
To enable this court then to issue a mandamus, it

must be shewn to be an exercise of appellate
jurisdiction, or to be necessary to enable them to
exercise appellate jurisdiction.
It has been stated at the bar that the appellate

jurisdiction may be exercised in a variety of forms,
and that if it be the will of the legislature that a
mandamus should be used for that purpose, that
will must be obeyed. This is true, yet the
jurisdiction must be appellate, not original.
It is the essential criterion of appellate

jurisdiction, that it revises and corrects the
proceedings in a cause already instituted, and
does not create that cause. Although, therefore, a
mandamus may be directed to courts, yet to issue
such a writ to an officer for the delivery of a paper,
is in effect the same as to sustain an original
action for that paper, and therefore seems not to
belong to appellate, but to original jurisdiction.
Neither is it necessary in such a case as this, to
enable the court to exercise its appellate
jurisdiction.
The authority, therefore, given to the supreme

court, by the act establishing the judicial courts of
the United States, to issue writs of mandamus to
public officers, appears not to be warranted by the
constitution; and it becomes necessary to enquire
whether a jurisdiction, so conferred, can be
exercised.
The question, whether an act, repugnant to the
constitution, can become the law of the land, is a
question deeply interesting to the United States;
but, happily, not of an intricacy proportioned to its
interest. It seems only necessary to recognise
certain principles, supposed to have been long and
well established, to decide it.
That the people have an original right to establish,

for their future government, such principles as, in
their opinion, shall most conduce to their own
happiness, is the basis, on which the whole
American fabric has been erected. The exercise of
this original right is a very great exertion; nor can
it, nor ought it to be frequently repeated. The
principles, therefore, so established, are deemed
fundamental. And as the authority, from which
they proceed, is supreme, and can seldom act,
they are designed to be permanent.
This original and supreme will organizes the

government, and assigns, to different
departments, their respective powers. It may
either stop here; or establish certain limits not to
be transcended by those departments.
The government of the United States is of the

latter description. The powers of the legislature
are defined, and limited; and that those limits may
not be mistaken, or forgotten, the constitution is
written. To what purpose are powers limited, and
to what purpose is that limitation committed to
writing, if these limits may, at any time, be passed
by those intended to be restrained? The
distinction, between a government with limited
and unlimited powers, is abolished, if those limits
do not confine the persons on whom they are
imposed, and if acts prohibited and acts allowed,
are of equal obligation. It is a proposition too plain
to be contested, that the constitution controls any
legislative act repugnant to it; or, that the
legislature may alter the constitution by an
ordinary act.
Between these alternatives there is no middle

ground. The constitution is either a superior,
paramount law, unchangeable by ordinary means,
or it is on a level with ordinary legislative acts,
and like other acts, is alterable when the
legislature shall please to alter it.
If the former part of the alternative be true, then a

legislative act contrary to the constitution is not
law: if the latter part be true, then written
constitutions are absurd attempts, on the part of
the people, to limit a power, in its own nature
illimitable.
Certainly all those who have framed written

constitutions contemplate them as forming the
fundamental and paramount law of the nation, and
consequently the theory of every such government
must be, that an act of the legislature, repugnant
to the constitution, is void.
This theory is essentially attached to a written

constitution, and is consequently to be considered,
by this court, as one of the fundamental principles
of our society. It is not therefore to be lost sight of
in the further consideration of this subject.
If an act of the legislature, repugnant to the
constitution, is void, does it, notwithstanding its
invalidity, bind the courts, and oblige them to give
it effect? Or, in other words, though it be not law,
does it constitute a rule as operative as if it was a
law? This would be to overthrow in fact what was
established in theory; and would seem, at first
view, an absurdity too gross to be insisted on. It
shall, however, receive a more attentive
consideration.
It is emphatically the province and duty of the

judicial department to say what the law is. Those
who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two
laws conflict with each other, the courts must
decide on the operation of each.
So if a law be in opposition to the constitution; if

both the law and the constitution apply to a
particular case, so that the court must either
decide that case conformably to the law,
disregarding the constitution; or conformably to
the constitution, disregarding the law; the court
must determine which of these conflicting rules
governs the case. This is of the very essence of
judicial duty.
If then the courts are to regard the constitution;

and the constitution is superior to any ordinary act
of the legislature; the constitution, and not such
ordinary act, must govern the case to which they
both apply.
Those then who controvert the principle that the

constitution is to be considered, in court, as a
paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on
the constitution, and see only the law.
This doctrine would subvert the very foundation of

all written constitutions. It would declare that an
act, which, according to the principles and theory
of our government, is entirely void; is yet, in
practice, completely obligatory. It would declare,
that if the legislature shall do what is expressly
forbidden, such act, notwithstanding the express
prohibition, is in reality effectual. It would be
giving to the legislature a practical and real
omnipotence, with the same breath which
professes to restrict their powers within narrow
limits. It is prescribing limits, and declaring that
those limits may be passed at pleasure.
That it thus reduces to nothing what we have

deemed the greatest improvement on political
institutions—a written constitution—would of itself
be sufficient, in America, where written
constitutions have been viewed with so much
reverence, for rejecting the construction. But the
peculiar expressions of the constitution of the
United States furnish additional arguments in
favour of its rejection.
The judicial power of the United States is

extended to all cases arising under the
constitution.
Could it be the intention of those who gave this

power, to say that, in using it, the constitution
should not be looked into? That a case arising
under the constitution should be decided without
examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be

looked into by the judges. And if they can open it
at all, what part of it are they forbidden to read, or
to obey?
There are many other parts of the constitution

which serve to illustrate this subject.
It is declared that “no tax or duty shall be laid on

articles exported from any state.” Suppose a duty
on the export of cotton, of tobacco, or of flour; and
a suit instituted to recover it. Ought judgment to
be rendered in such a case? ought the judges to
close their eyes on the constitution, and only see
the law?
The constitution declares that “no bill of attainder

or ex post facto law shall be passed.”
If, however, such a bill should be passed and a

person should be prosecuted under it; must the
court condemn to death those victims whom the
constitution endeavours to preserve?
“No person,” says the constitution, “shall be

convicted of treason unless on the testimony of
two witnesses to the same overt act, or on
confession in open court.”
Here the language of the constitution is addressed

especially to the courts. It prescribes, directly for
them, a rule of evidence not to be departed from.
If the legislature should change that rule, and
declare one witness, or a confession out of court,
sufficient for conviction, must the constitutional
principle yield to the legislative act?
From these, and many other selections which

might be made, it is apparent, that the Framers of
the constitution contemplated that instrument, as
a rule for the government of courts, as well as of
the legislature.
Why otherwise does it direct the judges to take an

oath to support it? This oath certainly applies, in
an especial manner, to their conduct in their
official character. How immoral to impose it on
them, if they were to be used as the instruments,
and the knowing instruments, for violating what
they swear to support!
The oath of office, too, imposed by the legislature,

is completely demonstrative of the legislative
opinion on this subject. It is in these words, “I do
solemnly swear that I will administer justice
without respect to persons, and do equal right to
the poor and to the rich; and that I will faithfully
and impartially discharge all the duties incumbent
on me as according to the best of my abilities and
understanding, agreeably to the constitution, and
laws of the United States.”
Why does a judge swear to discharge his duties

agreeably to the constitution of the United States,
if that constitution forms no rule for his
government? if it is closed upon him, and cannot
be inspected by him?
If such be the real state of things, this is worse
than solemn mockery. To prescribe, or to take this
oath, becomes equally a crime.
It is also not entirely unworthy of observation, that

in declaring what shall be the supreme law of the
land, the constitution itself is first mentioned; and
not the laws of the United States generally, but
those only which shall be made in pursuance of
the constitution, have that rank.
Thus, the particular phraseology of the

constitution of the United States confirms and
strengthens the principle, supposed to be
essential to all written constitutions, that a law
repugnant to the constitution is void; and that
courts, as well as other departments, are bound by
that instrument.
The rule must be discharged.
Scholars differ about Marshall’s opinion in Marbury,

but supporters and critics alike acknowledge
Marshall’s shrewdness. As the great legal scholar
Edward S. Corwin wrote,
Regarded merely as a judicial decision, the

decision of Marbury v. Madison must be
considered as most extraordinary, but regarded
as a political pamphlet designed to irritate an
enemy [Jefferson] to the very limit of endurance,
it must be regarded a huge success.20
20 Edward S. Corwin, “The Establishment of Judicial
Review—II,” Michigan Law Review 9 (1911): 292.
To see Corwin’s point, we only have to think about

the way the chief justice dealt with a most delicate
political situation. By ruling against Marbury—who
never did receive his judicial appointment (see Box
2-2)—Marshall avoided a potentially devastating
clash with Jefferson. But, by exerting the power of
judicial review, Marshall sent the president a clear
signal that the Court would be a major player in the
American government. Other scholars, however,
point out that judicial review emerged not because
of some brilliant strategic move by Marshall in the
face of intense political opposition, but because it
was politically viable at the time. According to these
scholars, Jefferson favored the establishment of
judicial review and Marshall realized this. So
Marshall simply took the rational course of action:
deny Marbury his commission (which Jefferson
desired) and articulate judicial review (a move that
Jefferson also approved).21
21 For more on this view, see Knight and Epstein,

“On the Struggle for Judicial Supremacy.”
Box 2-2 Aftermath . . . Marbury v. Madison
FROM MEAGER beginnings, William Marbury

gained political and economic influence in his
home state of Maryland and became a strong
supporter of John Adams and the Federalist Party.
Unlike others of his day who rose in wealth
through agriculture or trade, Marbury’s path to
prominence was banking and finance. At age
thirty-eight he saw his appointment to be a justice
of the peace as a public validation of his rising
economic status and social prestige. Marbury
never received his judicial position; instead, he
returned to his financial activities, ultimately
becoming the president of a bank in Georgetown.
He died in 1835, the same year as Chief Justice
John Marshall.
Other participants in the famous decision played

major roles in the early history of our nation.
Thomas Jefferson, who refused to honor Marbury’s
appointment, served two terms as chief executive,
leaving office in 1809 as one of the nation’s most
revered presidents. James Madison, the secretary
of state who carried out Jefferson’s order
depriving Marbury of his judgeship, became the
nation’s fourth president, serving from 1809 to
1817. Following the Marbury decision, Chief
Justice Marshall led the Court for an additional
thirty-two years. His tenure was marked with
fundamental rulings expanding the power of the
judiciary and enhancing the position of the federal
government relative to the states. He is rightfully
regarded as history’s most influential chief justice.
Although the Marbury decision established the

power of judicial review, it is ironic that the
Marshall Court never again used its authority to
strike down a piece of congressional legislation. In
fact, it was not until Scott v. Sandford (1857),
more than two decades after Marshall’s death,
that the Court once again invalidated a
congressional statute.
Sources: John A. Garraty, “The Case of the

Missing Commissions,” in Quarrels That Have
Shaped the Constitution, rev. ed., ed. John A.
Garraty (New York: Harper & Row, 1987); David F.
Forte, “Marbury’s Travail: Federalist Politics and
William Marbury’s Appointment as Justice of the
Peace,” Catholic University Law Review 45 (1996):
349–402.
Either way, the decision helped to establish

Marshall’s reputation as perhaps the greatest justice
in Supreme Court history. Marbury was just the first
in a long line of seminal Marshall decisions,
including two you will have a chance to read later in
the book, McCulloch v. Maryland (1819) and Gibbons
v. Ogden (1824). Most important here, Marbury
asserted the Court’s authority to review and strike
down government actions that were incompatible
with the Constitution. In Marshall’s view, such
authority, while not explicit in the Constitution, was
clearly intended by the framers of that document.
Was he correct? His opinion makes a plausible
argument, but some judges and scholars have
suggested otherwise. We review their assertions
soon but first we consider the U.S. Supreme Court’s
power to review state court decisions and, by
extension, actions taken by state governments.
Judicial Review of State Court
Decisions
In Marbury the Court addressed only the power to
review acts of the federal government. Could the
Court also exert judicial review over the states?
Section 25 of the 1789 Judiciary Act suggested that
it could. Recall from our discussion of the act that
Congress authorized the Court to review appeals
from the highest state courts, if those tribunals
upheld state laws against challenges of
unconstitutionality or denied claims based on the
U.S. Constitution, federal laws, or treaties. But the
mere existence of this statute did not necessarily
mean that either state courts or the Supreme Court
would follow it. After all, in Marbury the justices told
Congress that it could not interpret Article III to
expand the original jurisdiction of the Supreme
Court—if that is, in fact, what Congress did. Would
they say the same thing about Section 25, that
Congress improperly read Article III to authorize the
Court to review certain kinds of state court
decisions?
Also to be considered was the potentially hostile

reaction from the states, which in the 1780s and
1790s zealously guarded their power from federal
encroachment. Even if the Court were to take
advantage of its ability to review state court
decisions, it was more than likely that they would
disregard its rulings. Keep these issues in mind as
you read Martin v. Hunter’s Lessee, in which the
Court sustained its power to review state court
decisions that met the requirements of Section 25
(those upholding a state law against challenges of
unconstitutionality or denying a claim based on the
U.S. Constitution, federal laws, or treaties).
Martin v. Hunter’s Lessee 14 U.S. (1 Wheat) 304

(1816)
https://caselaw.findlaw.com/us-supreme-
court/14/304.html
Vote: 6 (Duvall, Johnson, Livingston, Story, Todd,

Washington)
OPINION OF THE COURT: Story

CONCURRING OPINION: Johnson
NOT PARTICIPATING: Marshall
Facts:
Before the Revolutionary War, Lord Fairfax, a
British loyalist, inherited a large tract of land in
Virginia. When the war broke out, Fairfax, too old
and frail to make the journey back to England,
remained in Virginia. He died there in 1781 and
left the property to his nephew, Denny Martin, a
British subject residing in England, with the
stipulation that Martin change his name to
Fairfax.
The inheritance was complicated by a 1781
Virginia law that specified that no “enemy” could
inherit land in the state. Virginia confiscated
Fairfax’s (also known as Martin’s) property and
began proceedings to sell it, including a plot to
David Hunter.22 Although Hunter was a real
grantee, “he was a mere instrument of the state;
the state managed the litigation completely.”
Because he believed he had rightfully inherited
the land, Martin also began to sell off tracts—
among the purchasers were John Marshall and his
brother—resulting in a suit contesting title.
22 William Winslow Crosskey, Politics and the

Constitution in the History of the United States,
vol. 2 (Chicago: University of Chicago Press,
1953), 788–789.
A lower Virginia state court upheld Martin’s claim,

but the highest court in Virginia reversed. When
the case, Fairfax’s Devisee v. Hunter’s Lessee
(1813), was appealed to the U.S. Supreme Court,
only four justices heard it; Chief Justice Marshall
recused himself due to the potential conflict of
interest. In a 3–1 decision, the Court upheld
Fairfax’s claim, finding that the Virginia statute
was unconstitutional because it conflicted with the
1783 Treaty of Paris, in which Congress promised
to recommend to the states that they restore
confiscated property to loyalists.
The U.S. Supreme Court ordered the Virginia

Supreme Court to carry out its ruling. In response,
the Virginia court, which did not consider itself
subordinate to the Supreme Court, held hearings
to determine whether it should comply. Eventually,
it not only declined to follow the order but also
struck down Section 25 of the Judiciary Act of
1789 as unconstitutional. The Virginia Supreme
Court’s decision was then appealed to the U.S.
Supreme Court in the case of Martin v. Hunter’s
Lessee. Here the justices considered the question
of whether Congress could expand their appellate
jurisdiction, as it had done in Section 25.
Arguments:
For Denny Martin, heir at law and
devisee of Fairfax:
The uniform practice since the Constitution

was adopted confirms the jurisdiction of the
Court. The letters of Publius show that it was
agreed, by both its friends and foes, that
judicial power extends to this class of cases.
This government is not a mere confederacy,
like the old continental confederation. In its
legislative, executive, and judicial authorities,
it is a national government. Its judicial
authority is analogous to its legislative: it alone
has the power of making treaties; those
treaties are declared to be the law of the land;
and the judiciary of the United States is
exclusively vested with the power of construing
them.
The state judiciaries are essentially
incompetent to pronounce what is the law, not
in the limited sphere of their territorial
jurisdiction, but throughout the Union and the
world.
For Hunter’s Lessee:
Under the Constitution, in which power was
given to the federal government by the states,
the U.S. Supreme Court can only review
decisions of the lower federal courts.
If the Supreme Court can exercise appellate
jurisdiction over state courts, the sovereignty
and independence of the states will be
materially impaired.
State court judges are men of integrity who
take an oath to support the U.S. Constitution.
They can be trusted to interpret it
authoritatively.
Story, J., Delivered the Opinion of the Court.
The questions involved in this judgment are of

great importance and delicacy. Perhaps it is not
too much to affirm, that, upon their right decision,
rest some of the most solid principles which have
hitherto been supposed to sustain and protect the
constitution itself. The great respectability, too, of
the court whose decisions we are called upon to
review, and the entire deference which we
entertain for the learning and ability of that court,
add much to the difficulty of the task which has so
unwelcomely fallen upon us. . . .
Before proceeding to the principal questions, it

may not be unfit to dispose of some preliminary
considerations which have grown out of the
arguments at the bar.
Martin v. Hunter’s Lessee (1816) involved land in
Virginia that the state had confiscated from a
loyalist during the Revolutionary War. Justice
Story wrote the landmark opinion establishing the
Supreme Court’s authority to reverse state court
decisions involving federal laws or constitutional
rights.
Library of Virginia
The constitution of the United States was ordained

and established, not by the states in their
sovereign capacities, but emphatically, as the
preamble of the constitution declares, by “the
people of the United States.” There can be no
doubt that it was competent to the people to
invest the general government with all the powers
which they might deem proper and necessary; to
extend or restrain these powers according to their
own good pleasure, and to give them a paramount
and supreme authority. As little doubt can there
be, that the people had a right to prohibit to the
states the exercise of any powers which were, in
their judgment, incompatible with the objects of
the general compact; to make the powers of the
state governments, in given cases, subordinate to
those of the nation, or to reserve to themselves
those sovereign authorities which they might not
choose to delegate to either. The constitution was
not, therefore, necessarily carved out of existing
state sovereignties, nor a surrender of powers
already existing in state institutions, for the
powers of the states depend upon their own
constitutions; and the people of every state had
the right to modify and restrain them, according
to their own views of policy or principle. On the
other hand, it is perfectly clear that the sovereign
powers vested in the state governments, by their
respective constitutions, remained unaltered and
unimpaired, except so far as they were granted to
the government of the United States.
These deductions do not rest upon general

reasoning, plain and obvious as they seem to be.
They have been positively recognised by one of
the articles in amendment of the constitution,
which declares, that “the powers not delegated to
the United States by the constitution, nor
prohibited by it to the states, are reserved to the
states respectively, or to the people.”
The government, then, of the United States, can
claim no powers which are not granted to it by the
constitution, and the powers actually granted,
must be such as are expressly given, or given by
necessary implication. On the other hand, this
instrument, like every other grant, is to have
reasonable construction, according to the import
of its terms; and where a power is expressly given
in general terms, it is not to be restrained to
particular cases, unless that construction grow out
of the context expressly, or by necessary
implication. The words are to be taken in their
natural and obvious sense, and not in a sense
unreasonably restricted or enlarged.
The constitution unavoidably deals in general

language. It did not suit the purposes of the
people, in framing this great charter of our
liberties, to provide for minute specifications of its
powers, or to declare the means by which those
powers should be carried into execution. It was
foreseen that this would be a perilous and
difficult, if not an impracticable, task. The
instrument was not intended to provide merely for
the exigencies of a few years, but was to endure
through a long lapse of ages, the events of which
were locked up in the inscrutable purposes of
Providence. It could not be foreseen what new
changes and modifications of power might be
indispensable to effectuate the general objects of
the charter; and restrictions and specifications,
which, at the present, might seem salutary, might,
in the end, prove the overthrow of the system
itself. Hence its powers are expressed in general
terms, leaving to the legislature, from time to
time, to adopt its own means to effectuate
legitimate objects, and to mould and model the
exercise of its powers, as its own wisdom, and the
public interests, should require.
With these principles in view, principles in respect

to which no difference of opinion ought to be
indulged, let us now proceed to . . . the
consideration of the great question as to the
nature and extent of the appellate jurisdiction of
the United States. . . .
[B]y the terms of the constitution, the appellate

jurisdiction is not limited as to the supreme court,
and as to this court it may be exercised in all other
cases than those of which it has original
cognizance, what is there to restrain its exercise
over state tribunals in the enumerated cases? The
appellate power is not limited by the terms of the
third article to any particular courts. The words
are, “the judicial power (which includes appellate
power) shall extend to all cases,” &c., and “in all
other cases before mentioned the supreme court
shall have appellate jurisdiction.” It is the case,
then, and not the court, that gives the jurisdiction.
If the judicial power extends to the case, it will be
in vain to search in the letter of the constitution
for any qualification as to the tribunal where it
depends. It is incumbent, then, upon those who
assert such a qualification to show its existence by
necessary implication. If the text be clear and
distinct, no restriction upon its plain and obvious
import ought to be admitted, unless the inference
be irresistible.
If the constitution meant to limit the appellate

jurisdiction to cases pending in the courts of the
United States, it would necessarily follow that the
jurisdiction of these courts would, in all the cases
enumerated in the constitution, be exclusive of
state tribunals. How otherwise could the
jurisdiction extend to all cases arising under the
constitution, laws, and treaties of the United
States, or to all cases of admiralty and maritime
jurisdiction? If some of these cases might be
entertained by state tribunals, and no appellate
jurisdiction as to them should exist, then the
appellate power would not extend to all, but to
some, cases. If state tribunals might exercise
concurrent jurisdiction over all or some of the
other classes of cases in the constitution without
control, then the appellate jurisdiction of the
United States might, as to such cases, have no
real existence, contrary to the manifest intent of
the constitution. Under such circumstances, to
give effect to the judicial power, it must be
construed to be exclusive; and this not only when
the casus faederis [an event contemplated by a
treaty] should arise directly, but when it should
arise, incidentally, in cases pending in state
courts. This construction would abridge the
jurisdiction of such court far more than has been
ever contemplated in any act of congress.
[I] is plain that the framers of the Constitution did

contemplate that cases within the judicial
cognizance of the United States not only might,
but would, arise in the State courts in the exercise
of their ordinary jurisdiction. With this view, the
sixth article declares, that
“This Constitution, and the laws of the United
States which shall be made in pursuance
thereof, and all treaties made, or which shall
be made, under the authority of the United
States, shall be the supreme law of the land,
and the judges in every State shall be bound
thereby, anything in the Constitution or laws
of any State to the contrary notwithstanding.”
It is obvious that this obligation is imperative upon

the State judges. From the very nature of their
judicial duties, they would be called upon to
pronounce the law applicable to the case in
judgment. They were not to decide merely
according to the laws or Constitution of the State,
but according to the Constitution, laws and
treaties of the United States—“the supreme law of
the land.”
It must, therefore, be conceded that the

constitution not only contemplated, but meant to
provide for cases within the scope of the judicial
power of the United States, which might yet
depend before state tribunals. It was foreseen that
in the exercise of their ordinary jurisdiction, state
courts would incidentally take cognizance of cases
arising under the constitution, the laws, and
treaties of the United States. Yet to all these cases
the judicial power, by the very terms of the
constitution, is to extend. It cannot extend by
original jurisdiction if that was already rightfully
and exclusively attached in the state courts, which
(as has been already shown) may occur; it must,
therefore, extend by appellate jurisdiction, or not
at all. It would seem to follow that the appellate
power of the United States must, in such cases,
extend to state tribunals; and if in such cases,
there is no reason why it should not equally attach
upon all others within the purview of the
constitution.
It has been argued that such an appellate

jurisdiction over state courts is inconsistent with
the genius of our governments, and the spirit of
the constitution. That the latter was never
designed to act upon state sovereignties, but only
upon the people, and that if the power exists, it
will materially impair the sovereignty of the
states, and the independence of their courts. . . .
It is a mistake that the constitution was not

designed to operate upon states, in their corporate
capacities. It is crowded with provisions which
restrain or annul the sovereignty of the states in
some of the highest branches of their
prerogatives. The tenth section of the first article
contains a long list of disabilities and prohibitions
imposed upon the states. Surely, when such
essential portions of state sovereignty are taken
away, or prohibited to be exercised, it cannot be
correctly asserted that the constitution does not
act upon the states. The language of the
constitution is also imperative upon the states as
to the performance of many duties. It is imperative
upon the state legislatures to make laws
prescribing the time, places, and manner of
holding elections for senators and representatives,
and for electors of president and vice president.
And in these, as well as some other cases,
congress have a right to revise, amend, or
supersede the laws which may be passed by state
legislatures. . . . The courts of the United States
can, without question, revise the proceedings of
the executive and legislative authorities of the
states, and if they are found to be contrary to the
constitution, may declare them to be of no legal
validity. Surely the exercise of the same right over
judicial tribunals is not a higher or more
dangerous act of sovereign power.
Nor can such a right be deemed to impair the

independence of state judges. It is assuming the
very ground in controversy to assert that they
possess an absolute independence of the United
States. In respect to the powers granted to the
United States, they are not independent; they are
expressly bound to obedience by the letter of the
constitution; and if they should unintentionally
transcend their authority, or misconstrue the
constitution, there is no more reason for giving
their judgments an absolute and irresistible force,
than for giving it to the acts of the other
coordinate departments of state sovereignty. . . .
It is further argued, that no great public mischief

can result from a construction which shall limit
the appellate power of the United States to cases
in their own courts: first, because state judges are
bound by an oath to support the constitution of
the United States, and must be presumed to be
men of learning and integrity; and, secondly,
because congress must have an unquestionable
right to remove all cases within the scope of the
judicial power from the state courts to the courts
of the United States, at any time before final
judgment, though not after final judgment. As to
the first reason—admitting that the judges of the
state courts are, and always will be, of as much
learning, integrity, and wisdom, as those of the
courts of the United States (which we very
cheerfully admit), it does not aid the argument. It
is manifest that the constitution has proceeded
upon a theory of its own, and given or withheld
powers according to the judgment of the American
people, by whom it was adopted. We can only
construe its powers, and cannot inquire into the
policy or principles which induced the grant of
them. The constitution has presumed (whether
rightly or wrongly we do not inquire) that state
attachments, state prejudices, state jealousies,
and state interests, might sometimes obstruct, or
control, or be supposed to obstruct or control, the
regular administration of justice. . . .
This is not all. A motive of another kind, perfectly

compatible with the most sincere respect for state
tribunals, might induce the grant of appellate
power over their decisions. That motive is the
importance, and even necessity of uniformity of
decisions throughout the whole United States,
upon all subjects within the purview of the
constitution. Judges of equal learning and
integrity, in different states, might differently
interpret a statute, or a treaty of the United
States, or even the constitution itself: If there
were no revising authority to control these jarring
and discordant judgments, and harmonize them
into uniformity, the laws, the treaties, and the
constitution of the United States would be
different in different states, and might, perhaps,
never have precisely the same construction,
obligation, or efficacy, in any two states. The
public mischiefs that would attend such a state of
things would be truly deplorable; and it cannot be
believed that they could have escaped the
enlightened convention which formed the
constitution. What, indeed, might then have been
only prophecy, has now become fact; and the
appellate jurisdiction must continue to be the only
adequate remedy for such evils. . . .
On the whole, the court are of opinion, that the

appellate power of the United States does extend
to cases pending in the state courts; and that the
25th section of the judiciary act, which authorizes
the exercise of this jurisdiction in the specified
cases, by a writ of error, is supported by the letter
and spirit of the constitution. We find no clause in
that instrument which limits this power; and we
dare not interpose a limitation where the people
have not been disposed to create one. . . .
It is the opinion of the whole court, that the

judgment of the court of appeals of Virginia,
rendered on the mandate in this cause, be
reversed, and the judgment of the district court,
held at Winchester, be, and the same is hereby,
affirmed.
With these words, the justices may have believed

that the question was settled, but after they
announced Martin, Virginia continued its assaults on
the authority of the Supreme Court to review state
actions. The issue was not settled until the case of
Cohens v. Virginia (1821). The Cohen brothers
were tried and convicted in Virginia for selling
tickets for the District of Columbia lottery, a lottery
that was authorized by an act of Congress but not by
Virginia law. When the Cohens alleged that the
federal law superseded the Virginia statute, the
Supreme Court was again compelled to review a
Virginia court’s interpretation of a congressional act.
As in Marbury, the Court was faced with a difficult

political situation. Virginia had refused to comply
with the Court’s earlier decision in Martin. The
state’s attorneys, including Philip P. Barbour, who
later would serve on the U.S. Supreme Court,
continued to argue that the Court could not review
state court decisions because the states were
sovereign entities. In particular, they turned to the
Eleventh Amendment. That amendment overturned a
1793 Supreme Court decision, Chisholm v.
Georgia, which had upheld the right of citizens of
one state to bring suit, in the Supreme Court,
against another state. The amendment says, “The
Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” The attorneys argued
that these words prohibited the Supreme Court from
hearing appeals by citizens against their own states
—regardless of what Section 25 said and even if the
appeal involved a congressional act (as was the case
here). Writing for a unanimous Court, Chief Justice
Marshall disagreed:
The constitution and laws of a State, so far as
they are repugnant to the constitution and laws
of the United States, are absolutely void. These
States are constituent parts of the United States.
They are members of one great empire—for
some purposes sovereign, for some purposes
subordinate.
In a government so constituted, is it
unreasonable that the judicial power should be
competent to give efficacy to the constitutional
laws of the legislature? . . .
We think it is not. We think that in a government

acknowledgedly supreme, with respect to objects
of vital interest to the nation, there is nothing
inconsistent with sound reason, nothing
incompatible with the nature of government, in
making all its departments supreme, so far as
respects those objects, and so far as is necessary
to their attainment. The exercise of the appellate
power over those judgments of the State
tribunals which may contravene the constitution
or laws of the United States, is, we believe,
essential to the attainment of those objects.
By so ruling, Marshall reinforced the

constitutionality of Section 25 of the Judiciary Act,
held that the Eleventh Amendment did not preclude
the Supreme Court from exercising jurisdiction over
a federal question raised on appeal by citizens
against their own states (in accord with Section 25),
and ended the immediate dispute with Virginia. But
neither Martin nor Cohens fully resolved questions
concerning the role of federal courts vis-à-vis their
state counterparts, nor did these cases end state
challenges to the Court’s authority.
State challenges to the authority of the Supreme

Court to “interfere” in their business come in
different forms—as reactions to Brown v. Board of
Education (1954) indicate. In the wake of that
decision, which told states that they could not
maintain segregated public schools, came the
following responses (to name just a few):
Speeches. Public statements were made in

defiance of the Court, such as Alabama governor
George Wallace’s often-cited declaration, “I draw
the line in the dust and toss the gauntlet before
the feet of tyranny and I say segregation now,
segregation tomorrow, segregation forever,” and
Mississippi senator James Eastland’s claim that
the South “will not abide by or obey this
legislative decision by a political court.”
Legislation. Reflecting the sentiment that “as long
as we can legislate, we can segregate,” Southern
states passed 136 laws and state constitutional
amendments aimed at preserving segregation.
Examples include the Alabama legislature’s
declaration that the Brown decision was null and
void, a Louisiana law that denied promotion or
graduation to students of desegregated schools,
and a Mississippi act that simply prohibited
students from attending desegregated schools.
The Southern Manifesto. A 1957 statement signed
by ninety-six members of Congress from the
South said, “We pledge ourselves to use all lawful
means to bring about the reversal of [Brown].”
Threats of violence. In 1957 Governor Orville
Faubus of Arkansas had members of the National
Guard stand at the entrance of Little Rock Central
High School to prevent black students from
entering. He and other state officials claimed that
they were not bound by Brown. This incident led
to Cooper v. Aaron (1958), in which the justices
took the opportunity to reaffirm their commitment
to Marshall’s words in Marbury: “It is emphatically
the province and the duty of the judicial
department to say what the law is.”23
23 These examples come from Gerald N. Rosenberg,

The Hollow Hope (Chicago: University of Chicago
Press, 1991); Richard Kluger, Simple Justice (New
York: Knopf, 1975); and Bradley C. Canon and
Charles A. Johnson, Judicial Policies: Implementation
and Impact, 2nd ed. (Washington, DC: CQ Press,
1999).
The Debates over Judicial

Review
The reactions to Brown were extreme; the typical
Supreme Court decision invalidating a federal, state,
or local law does not elicit such blatant defiance. But
even when they do, there is little talk of taking away
the Court’s power to exert judicial review over
national (Marbury) and state actions (Martin and
Cohens). Put another way, although specific
decisions have met fierce resistance, the Court’s role
as a principal, but certainly not always final,24
constitutional interpreter is now so firmly
established that a Court decision can precipitate the
resignation of a president, as it did in United States
v. Nixon (1974) (excerpted in Chapter 4) or the
election of a president, as it did in Bush v. Gore. With
the stroke of a pen, the Court can declare hundreds
of federal statutory provisions unconstitutional, as it
did in Immigration and Naturalization Service v.
Chadha (1983) (excerpted in Chapter 5), or
invalidate almost every law in the country regulating
abortion, as it did in Roe v. Wade (1973).
24 We emphasize the word final because the extent

to which the Court has or should have the last word
in constitutional interpretation is a matter of
considerable debate, especially when it comes to
federal laws. Compare, for example, Larry D.
Kramer, “Foreword: We the Court,” Harvard Law
Review 115 (2001): 4–168; and Prakash and Yoo,
“The Origins of Judicial Review.” Along similar lines,
debates ensue over whether the Court has or should
have a monopoly on constitutional interpretation. We
discuss these below, under the heading “Judicial
Supremacy.”
But what these and other momentous decisions did

not do, and perhaps could not do, was put an end to
the controversies surrounding judicial review. Some
of the complaints regarding Marbury emerged while
Marshall was still on the bench. Jefferson, for one,
griped about the decision until his last days. In an
1823 letter he wrote,
This practice of Judge Marshall, of travelling out

of his case to prescribe what the law would be in
a moot case not before the court, is very
irregular and very censurable. . . . [In Marbury v.
Madison] the Court determined at once, that
being an original process, they had no
cognizance of it; and therefore the question
before them was ended. But the Chief Justice
went on to lay down what the law would be, had
they jurisdiction of the case, to wit: that they
should command the delivery. The object was
clearly to instruct any other court having the
jurisdiction, what they should do if Marbury
should apply to them. Besides the impropriety of
this gratuitous interference, could anything
exceed the perversion of law? . . . Yet this case of
Marbury and Madison is continually cited by
bench and bar, as if it were settled law, without
any animadversion on its being merely an obiter
dissertation of the Chief Justice [our italics].25
25 Andrew A. Lipscomb, ed., The Writings of Thomas
Jefferson, vol. 15 (Washington, DC: Thomas Jefferson
Memorial Association, 1905), 447–448.
Strong words from one of our nation’s most revered

presidents!
But Jefferson was not the last to complain about

Marshall’s opinion. Some critics have picked apart
specific aspects of the ruling, as Jefferson did. He
argued that once Marshall ruled that the Court did
not have jurisdiction to hear the case, he should
have dismissed it. Another criticism of Marshall’s
opinion is that Section 13 of the 1789 Judiciary Act—
which Marbury held unconstitutional—did not
actually expand the Supreme Court’s original
jurisdiction. If this is so, then Marshall “had nothing
to declare unconstitutional!”26
26 Segal and Spaeth, The Supreme Court and the

Attitudinal Model Revisited, 24. A counterargument
is that people of the day must have considered
Section 13 as expanding the Court’s original
jurisdiction, or else why would Marbury have
brought his suit directly to the Supreme Court?
Other debates center on the Court’s holding, in

particular, on what legal scholar Alexander Bickel
called the “countermajoritarian difficulty”: Given our
nation’s fundamental commitment to a
representative form of government, why should we
allow a group of unelected officials to override the
wishes of the people, as expressed by their elected
officials?27
27 Alexander Bickel, The Least Dangerous Branch of

Government (New York: Bobbs-Merrill, 1962).
In other words, even though most Americans accept

the fact that courts have the power of judicial
review, many legal analysts still argue over whether
they should. Let us consider some of the theoretical
debates surrounding judicial review, debates that fall
into six categories: originalism, judicial self-
restraint, democratic checks on the Court, judicial
supremacy, public opinion, and protection of
minority rights.28
28 These categories, with the exception of judicial

supremacy, follow from David Adamany, “The
Supreme Court,” in The American Courts: A Critical
Assessment, ed. John B. Gates and Charles A.
Johnson (Washington, DC: CQ Press, 1991).
Originalism.
Perhaps the oldest—and yet still ongoing—debate
concerns whether the Constitution’s framers (or
ratifiers, or Americans more generally) intended for
the federal courts to exercise judicial review (or
understood that they would). Chief Justice Marshall’s
affirmative view was a major justification in Marbury
and Cohens, and some historical evidence exists to
support it. Most important is that the framers had
knowledge of judicial review. Although Marshall
often is credited with its first full enunciation, the
concept probably originated much earlier in England
in Dr. Bonham’s Case (1610). At issue was an act of
Parliament that enabled physicians of the London
College to authorize medical licenses and to punish
persons practicing medicine without one. Convicted
of violating the act, Dr. Bonham appealed his case to
England’s high court, the King’s Bench. Writing for
the court, Lord Chief Justice Sir Edward Coke struck
down the act, noting in dictum, “It appears in our
books, that in many cases, the common law will
control acts of Parliament, and sometimes adjudge
them to be utterly void.” Coke’s resounding
declaration of the authority of the court to void
parliamentary acts came at a critical point in British
history. At a time when King James I was claiming
tremendous authority, the court, in an otherwise
trivial case, took the opportunity to assert its power.
By the early 1700s the concept of judicial review had

fallen out of favor in England. Coke’s writings,
however, had a profound impact on the development
of the American legal system, as best illustrated by
the Writs of Assistance Case (1761), involving the
legality of sweeping search warrants issued by the
British Parliament in the name of the king. Arguing
against such writs, James Otis, a Boston lawyer,
relied on Coke’s opinion in Bonham as precedent for
his request. Otis lost the case, but his argument was
not forgotten. Between 1776 and 1787, eight of the
thirteen colonies incorporated judicial review into
their constitutions, and, as we noted earlier, by 1789
seven state courts had struck down as
unconstitutional acts passed by their legislatures.
This background makes the question of why the

framers left judicial review out of the Constitution
even more perplexing. Some historians argue that
the framers omitted it because they did not want to
heighten controversy over Article III by inserting
judicial review, not because they opposed the
practice. To the contrary, they may have implicitly
accepted it. Historians have established that more
than half of the delegates to the Constitutional
Convention approved of judicial review, including
those generally considered to be the most influential.
And some law professors point out that there seem
to be no writings, whether for or against ratification,
suggesting that the courts would not enjoy this
power. There were, however, statements in its favor.
Most famously, in The Federalist Papers Hamilton
adamantly defended the concept, arguing that one
branch of government must safeguard the
Constitution and that the courts would be in the best
position to undertake that responsibility. The
suggestion here is, “[T]hough people disagreed on
much else about the Constitution, all those who
addressed judicial review agreed that the
Constitution authorized the judiciary to ignore
unconstitutional federal statutes.”29
29 Prakash and Yoo, “The Origins of Judicial
Review,” 928.
Even with all this evidence, many still argue that the
framers did not intend for courts to review acts of
the other branches. In support of this view, some
point to the framers’ rejection of the proposed
council of revision, which would have been both
composed of Supreme Court justices and the
president, and permitted to veto legislative acts.
Others note that even though some states adopted
judicial review, their courts rarely exercised the
power. When they did, public outcries typically
followed, indicating that support for judicial review
was not widespread. Moreover, the fact that some
framers were concerned about writing judicial
review into the Constitution could mean they
believed that opposition to it was substantial enough
to threaten the chances of ratification.30
30 See Kramer, “Foreword.”
What, then, can we conclude about the intent of the

framers with regard to judicial review? Perhaps
Edward Corwin said it best: “The people who say the
framers intended it are talking nonsense, and the
people who say they did not intend it are talking
nonsense.”31
31 Quoted in ibid., 13.

Judicial Self-Restraint.
Another controversy surrounding judicial review
involves the notion of judicial self-restraint. Today, as
in the past, some legal analysts and judges contend
that courts should defer to the elected branches of
government unless they are reasonably certain that
the actions of those branches have violated the
Constitution.32
32 For a history of judicial self-restraint—one

claiming that Supreme Court justices did but no
longer adhere to it—see Richard A. Posner, “The Rise
and Fall of Judicial Self-Restraint,” California Law
Review 100 (2012): 519–556.
An early call for perhaps an even more extreme

version of judicial self-restraint came in Eakin v.
Raub (1825), in which John Gibson, a Pennsylvania
Supreme Court justice, took issue with a seeming
implication of Marbury: that the judiciary is the
ultimate arbiter of the Constitution. Because
Gibson’s opinion provides an important counterpoint
to Marshall’s arguments in Marbury, we include here
an excerpt from it. As you read it, consider whether
you agree with Gibson’s version of judicial self-
restraint in light of the Marbury opinion.
Eakin v. Raub 12 SARGENT & RAWLE 330 (PA.

1825)
John Gibson was a well-regarded judge who
served on the Pennsylvania Supreme Court for
thirty-seven years and nearly obtained a seat on
the U.S. Supreme Court. His dissent in Eakin v.
Raub is significant not because it came in a case
of any great moment—indeed, the facts are not
particularly important. It is important because, as
even scholars today maintain, it provides one of
the finest rebuttals of Marshall’s opinion in
Marbury v. Madison.33
33 The excerpt of Gibson’s dissent comes from

Melvin I. Urofsky, ed., Documents of American
Constitutional History, vol. 1 (New York: Knopf,
1989), 183–185.
Gibson, J., Dissenting.
I am aware, that a right to declare all

unconstitutional acts void, without distinction as
to either state or federal constitution, is generally
held as a professional dogma; but I apprehend,
rather as a matter of faith than of reason. It is not
a little remarkable, that although the right in
question has all along been claimed by the
judiciary, no judge has ventured to discuss it,
except Chief Justice Marshall; and if the argument
of a jurist so distinguished for the strength of his
ratiocinative powers be found inconclusive, it may
fairly be set down to the weakness of the position
which he attempts to defend. . . .
The constitution is said to be a law of superior

obligation; and consequently, that if it were to
come into collision with an act of the legislature,
the latter would have to give way; this is
conceded. But it is a fallacy, to suppose, that they
can come into collision before the judiciary.
The constitution and the right of the legislature to

pass the act, may be in collision; but is that a
legitimate subject for judicial determination? If it
be, the judiciary must be a peculiar organ, to
revise the proceedings of the legislature, and to
correct its mistakes; and in what part of the
constitution are we to look for this proud
preeminence? It is by no means clear, that to
declare a law void, which has been enacted
according to the forms prescribed in the
constitution, is not a usurpation of legislative
power. . . .
But it has been said to be emphatically the

business of the judiciary, to ascertain and
pronounce what the law is; and that this
necessarily involves a consideration of the
constitution. It does so: but how far? If the
judiciary will inquire into anything beside the form
of enactment, where shall it stop? There must be
some point of limitation to such an inquiry; for no
one will pretend, that a judge would be justifiable
in calling for the election returns, or scrutinizing
the qualifications of those who composed the
legislature.
It will not be pretended, that the legislature has

not, at least, an equal right with the judiciary to
put a construction on the constitution; nor that
either of them is infallible; nor that either ought to
be required to surrender its judgment to the other.
Suppose, then, they differ in opinion as to the
constitutionality of a particular law; if the organ
whose business it first is to decide on the subject,
is not to have its judgment treated with respect,
what shall prevent it from securing the
preponderance of its opinion by the strong arm of
power? The soundness of any construction which
would bring one organ of the government into
collision with another, is to be more than
suspected; for where collision occurs, it is evident,
the machine is working in a way the framers of it
did not intend. . . .
But the judges are sworn to support the

constitution, and are they not bound by it as the
law of the land? The oath to support the
constitution is not peculiar to the judges, but is
taken indiscriminately by every officer of the
government, and is designed rather as a test of
the political principles of the man, than to bind the
officer in the discharge of his duty: otherwise, it
were difficult to determine, what operation it is to
have in the case of a recorder of deeds, for
instance, who, in the execution of his office, has
nothing to do with the constitution. But granting it
to relate to the official conduct of the judge, as
well as every other officer, and not to his political
principles, still, it must be understood in reference
to supporting the constitution, only as far as that
may be involved in his official duty; and
consequently, if his official duty does not
comprehend an inquiry into the authority of the
legislature, neither does his oath. . . .
But do not the judges do a positive act in violation

of the constitution, when they give effect to an
unconstitutional law? Not if the law has been
passed according to the forms established in the
constitution. The fallacy of the question is, in
supposing that the judiciary adopts the acts of the
legislature as its own; whereas, the enactment of a
law and the interpretation of it are not concurrent
acts, and as the judiciary is not required to concur
in the enactment, neither is it in the breach of the
constitution which may be the consequence of the
enactment; the fault is imputable to the
legislature, and on it the responsibility exclusively
rests. . . .
I am of the opinion that it rests with the people, in

whom full and absolute sovereign power resides to
correct abuses in legislation, by instructing their
representatives to repeal the obnoxious act. What
is wanting to plenary power in the government, is
reserved by the people for their own immediate
use; and to redress an infringement of their rights
in this respect, would seem to be an accessory of
the power thus reserved. It might, perhaps, have
been better to vest the power in the judiciary; as it
might be expected that its habits of deliberation,
and the aid derived from the arguments of
counsel, would more frequently lead to accurate
conclusions. On the other hand, the judiciary is
not infallible; and an error by it would admit of no
remedy but a more distinct expression of the
public will, through the extraordinary medium of a
convention; whereas, an error by the legislature
admits of a remedy by an exertion of the same
will, in the ordinary exercise of the right of
suffrage—a mode better calculated to attain the
end, without popular excitement. It may be said,
the people would probably not notice an error of
their representatives. But they would as probably
do so, as notice an error of the judiciary; and,
beside, it is a postulate in the theory of our
government, and the very basis of the
superstructure, that the people are wise, virtuous,
and competent to manage their own affairs. . . .
Twenty years after Raub, Gibson had a change of

heart. In an 1845 opinion he suggested that state
courts should exercise judicial review over the acts
of political institutions located within their
jurisdictions.34 But if we take Raub on its face, the
use of judicial review belies this notion of judicial
restraint for which Gibson clamors. Recall the
legislative veto case described earlier in this chapter.
By even considering the issue, the Court placed itself
squarely in the middle of an executive–legislative
dispute; when it nullified the veto, it showed little
deference to the wishes of the legislature. To this
argument supporters of judicial review point to
Marshall’s decision in Marbury, Hamilton’s assertion
in The Federalist Papers, and so forth. They suggest
that the government needs an umpire who will act
neutrally and fairly in interpreting the constitutional
strictures.
34 See ibid., 183.
Again, the question of which position is correct has

no absolute answer, only opinion. But what we do
know is that U.S. Supreme Court justices—with a few
exceptions, such as Oliver Wendell Holmes and Felix
Frankfurter35—have not taken seriously the dictate
of judicial self-restraint or, at the very least, have not
let it interfere in their voting. Even those who
profess a basic commitment to judicial deference
have tended to allow their attitudes and values to
dictate their decisions. That is, left-leaning justices
tend to invalidate conservative laws, and right-
leaning justices, liberal laws.36
35 And even over Frankfurter there is some debate.

Compare Segal and Spaeth, The Supreme Court and
the Attitudinal Model, 318; and Lee Epstein and
William M. Landes, “Was There Ever Such a Thing as
Judicial Self-Restraint?,” California Law Review 100
(2012): 557–578. Segal and Spaeth argue that
Frankfurter was “nothing more than a stalwart
economic conservative who, along with his other
economically oriented colleagues, used judicial
restraint and judicial activism with equal facility to
achieve his substantial policy objectives.” Epstein
and Landes, in line with the conventional view, find
that throughout his career Frankfurter was highly
reluctant to strike down federal laws, regardless of
whether the laws were conservative or liberal.
36 See, for example, Epstein and Landes, “Was

There Ever Such a Thing as Judicial Self-Restraint?”;
Stefanie A. Lindquist and Frank B. Cross, Measuring
Judicial Activism (New York: Oxford University
Press, 2009).
Even so, there is some tendency to equate judicial
self-restraint with conservatism and judicial activism
with liberalism. Ronald Reagan, one of the most
conservative presidents of the twentieth century,
often asserted the need for judicial self-restraint,
saying that, if he could, he would appoint a Court of
Felix Frankfurters. But many note that what Reagan
really wanted was a Court that would defer to
legislatures if the laws in question reflected
conservative values and would overturn them
otherwise.
Democratic Checks.
A third controversy involves what David Adamany
calls democratic checks on the Court. According to
one side, judicial review is defensible on the ground
that the Supreme Court—while lacking an explicit
electoral connection—is subject to potential checks
from the elected branches. If the Court overturns
government acts in a way repugnant to the best
interests of the people, Congress, the president, and
even the states have a number of recourses. Acting
in different combinations, they can ratify a
constitutional amendment to overturn a decision,
change the size of the Court, or remove the Court’s
appellate jurisdiction.
Some scholars suggest that the elected branches do

not even need to use these weapons to influence the
Court’s decisions: the mere fact that they possess
them may be enough. In other words, if the justices
care about the ultimate state of the law or their own
legitimacy, they might seek to accommodate the
wishes of Congress rather than face the wrath of the
legislators, which could lead to the reversal of their
ruling or other forms of institutional retaliation.37
37 See, generally, Eskridge, “Overriding Supreme

Court Statutory Interpretation Decisions”; Segal,
Westerland, and Lindquist, “Congress, the Supreme
Court, and Judicial Review.”
It is the existence of congressional threat, not its

actual invocation, that may affect how the Court
rules in a given case. This dynamic, in the eyes of
some analysts, may explain why the justices rarely
strike down acts of Congress. To see the point,
consider Mistretta v. United States (1989)
(excerpted in Chapter 5), in which the Supreme
Court scrutinized a law that sought to minimize
judicial discretion in sentencing. The law created a
sentencing commission charged with promulgating
guidelines for federal judges to follow in handing
down criminal sentences. Although some lower court
judges refused to adopt the guidelines, arguing that
they undermined judicial independence, the
Supreme Court upheld the law. It is possible that the
justices upheld the law because they agreed with it
ideologically, or because precedent led them to that
conclusion, and so forth. But it also may be true that
the justices wanted to avoid a congressional
backlash and so acted in accord with legislators’
wishes.
The problem with these arguments, according to
some analysts, is twofold. First, explicit checks on
the part of elected branches are so rarely invoked—
only four amendments have overturned Court
decisions, the Court’s size has not been changed
since 1869, and only infrequently has Congress
removed the Court’s appellate jurisdiction—that they
do not constitute much of a threat. Second, although
justices may vote in some constitutional cases in
accordance with congressional preferences to avoid
backlash, such cases may be the exception, not the
rule. After all, some ask, why would the Court fear
Congress when it so rarely takes action against
Congress?
Judicial Supremacy.
We return to some of these questions in the last
section of the chapter, where we take up
jurisprudential and political constraints on the
exercise of judicial power. For now, let’s consider
debates related to democratic checks: controversies
about the relationship between judicial review and
judicial supremacy.38 To some scholars, it is one
thing for the Court to assert its authority to
invalidate acts of government. It is quite another,
they argue, for the justices to take the next step and
claim they have a monopoly on constitutional
interpretation or that they are the final interpreters
within the federal government. Marshall seemed to
come close to claiming as much in Marbury, when he
wrote, “It is emphatically the province and duty of
the judicial department to say what the law is.” And
more recently, in City of Boerne v. Flores (1997),
the Court echoed the sentiment. At issue was the
Religious Freedom Restoration Act of 1993 (RFRA),
which Congress passed by overwhelming majorities
in response to a 1990 Court decision, Employment
Division v. Smith. RFRA directed the Court to adopt
a particular standard of law in constitutional cases
involving the free exercise clause of the First
Amendment—a standard the Court had rejected in
Smith.
38 We adopt some of the material to follow from

Walter F. Murphy, C. Herman Pritchett, Lee Epstein,
and Jack Knight, Courts, Judges, and Politics (New
York: McGraw-Hill, 2005), chap. 12. See also
Murphy, “Who Shall Interpret the Constitution?”:
401.
In striking down Congress’s effort at constitutional

interpretation, the Court did not hesitate to cite
Marbury’s strong language about the Court’s
authoritative role:
Our national experience teaches that the

Constitution is preserved best when each part of
the government respects both the Constitution
and the proper actions and determinations of the
other branches. When the Court has interpreted
the Constitution, it has acted within the province
of the Judicial Branch, which embraces the duty
to say what the law is. Marbury v. Madison.
When the political branches of the Government
act against the background of a judicial
interpretation of the Constitution already issued,
it must be understood that in later cases and
controversies the Court will treat its precedents
with the respect due them under settled
principles, including stare decisis, and contrary
expectations must be disappointed. RFRA was
designed to control cases and controversies,
such as the one before us; but as the provisions
of the federal statute here invoked are beyond
congressional authority, it is this Court’s
precedent, not RFRA, which must control.39
39 The battle over RFRA continued after Boerne. In

2000 Congress enacted another, albeit watered-
down, version of the law, called the Religious Land
Use and Institutionalized Persons Act, thereby
generating the possibility that the Court might
eventually approve part of what Congress wanted.
Indeed, the Court upheld the law in Cutter v.
Wilkinson (2005).
Why are some scholars (along with Judge Gibson in

Eakin) so bothered by the idea of the Court as the
“ultimate” arbiter of the Constitution? One reason is
that it belies history. Both the president and
Congress have engaged in constitutional
interpretation from the nation’s earliest days, and,
according to David Currie, a leading authority on the
subject, they actually performed the task better than
the Supreme Court. In fact, after examining the
early congressional record, Currie concluded that
the “debates sparkled with brilliant insights about
the meaning of constitutional provisions.”40 Whether
legislators are engaging in interpretation when they
debate the document’s meaning on the floor or in
committee hearings is an interesting question. But it
is certainly true that occasionally those debates, and
perhaps the actions that result from them, became
the last or only words on the meaning of specific
constitutional provisions.
40 David P. Currie, “Prolegomena for a Sampler:

Extrajudicial Interpretation of the Constitution,
1789–1861,” in Congress and the Constitution, ed.
Neal Devins and Keith E. Whittington (Durham, NC:
Duke University Press, 2005), 24. See also Professor
Currie’s series of books on constitutional
deliberation in Congress: The Constitution in
Congress: The Federalist Period, 1789–1801
(Chicago: University of Chicago Press, 1997); The
Constitution in Congress: The Jeffersonians, 1801–
1829 (Chicago: University of Chicago Press, 2001);
and The Constitution in Congress: Democrats and
Whigs, 1829–1861 (Chicago: University of Chicago
Press, 2005).
Another reason analysts take issue with the concept

of judicial supremacy is this: even if the Court has
the power to review the president’s and Congress’s
interpretations, it does not necessarily follow that
the Court should have the last word. Tushnet makes
this point about Boerne:
[The] RFRA enacts an interpretation of what the

free exercise clause means that we know is
reasonable, because it was an interpretation that
the Supreme Court itself articulated and applied
for two decades. True, the Court today thinks
that the older Court’s interpretation—and
Congress’s—is not the best one. But . . . why
should the Court’s interpretation prevail?41
41 Mark Tushnet, “The Story of City of Boerne v.

Flores: Federalism, Rights, and Judicial Supremacy,”
in Constitutional Law Stories, ed. Michael C. Dorf
(New York: Foundation Press, 2004), 522.
One response to Tushnet’s question comes from

Marbury itself: if we allow Congress to be the final
arbiter of the Constitution, the document’s meaning
will change as the composition of Congress changes.
No longer will it be a constitution; rather, it will be
simple legislation to be interpreted as each Congress
sees fit. Certainly, we could say the same about the
Court—that as it experiences turnover in
membership, its interpretation of the Constitution
may change. But is it not the case that “stability in
the law requires that someone have the last word
and that giving the last word to the Court will get us
more stability than Congress”?42 Other scholars, in
contrast to Tushnet, would suggest that the answer
is yes, that the life-tenured justices are slower to
undo their own interpretations than the electorally
beholden members of Congress would be. As a
result, they are able to bring greater predictability to
the law.
42 Ibid., 523. Tushnet, however, does not agree with

this argument.
Public Opinion.
A fifth debate about judicial review concerns public
opinion and the Court. Those who support judicial
review point to two aspects of the Court’s
relationship with the public. First, they argue that
Court decisions are usually in harmony with public
opinion; that is, even though the Court faces no real
pressure to do so, it generally “follows the
elections.” Therefore, Americans need not fear that
the Court will usurp their power because it does not
exercise its power in a counter-majoritarian fashion.
Empirical evidence, however, is mixed. After

conducting an extensive investigation of the
relationship between public opinion and the Court,
Thomas R. Marshall concluded, “[T]he evidence
suggests that the modern Court has been an
essentially majoritarian institution. Where clear poll
margins exist, three-fifths to two-thirds of Court
rulings reflect the polls.”43 Yet, as he and others
concede, the Court at times has handed down
decisions well out of line with public preferences,
such as its prohibition of prayer in school and its
short-lived ban on the death penalty.44
43 Thomas R. Marshall, Public Opinion and the

Supreme Court (Boston: Unwin Hyman, 1989), 192.
44 For an excellent review of this literature, see

Gregory A. Caldeira, “Courts and Public Opinion,” in
Gates and Johnson, The American Courts.
Second, even if the Court is occasionally out of sync

with the public, judicial review is important: when
the Court reviews and affirms government acts, it
can play the role of republican schoolmaster—
educating the public and conferring legitimacy on
those acts. Evidence suggests, however, that the
Court does not and cannot serve this function
because too few people actually know about any
given Court decision, and, even if they do know, they
do not necessarily shift their ideas to conform to the
Court’s opinions.
Research by Charles H. Franklin and Liane Kosaki

provides an interesting example of the last point.45
They examined whether the Court’s decision in Roe
v. Wade (1973) changed citizens’ opinions on
abortion, reasoning that if the Court acted as a
republican schoolmaster, the public would adopt
more-liberal attitudes. Their data indicate, however,
that no such change occurred. Instead, those who
supported abortion rights before Roe became more
pro-choice, while those opposed became more pro-
life. In other words, the Court’s decision solidified
existing views; it didn’t change them.
45 Charles H. Franklin and Liane Kosaki, “The

Republican Schoolmaster: The U.S. Supreme Court,
Public Opinion, and Abortion,” American Political
Science Review 83 (1989): 751–771; see also
Timothy R. Johnson and Andrew D. Martin, “The
Public’s Conditional Response to Supreme Court
Decisions,” American Political Science Review 92
(1998): 299–310.
Protection of Minority Rights.

A final controversy concerns what role the Supreme
Court should play in the American system of
government. Those who support judicial review
assert that the Court must have this power if it is to
fulfill its most important constitutional assignment:
protection of minority rights. By their very nature—
the fact that they are elected—legislatures and
executives reflect the interests of the majority and
may take action that is blatantly unconstitutional. So
that the majority cannot tyrannize a minority, it is
necessary for the one branch of government that
lacks any electoral connection to have the power of
judicial review. This is a powerful argument, the
truth of which has been demonstrated many times
throughout American history. For example, when the
legislatures of Southern states continued to enact
segregation laws, it was the U.S. Supreme Court that
struck the laws down as violative of the Constitution.
This position also has its share of problems. One is

that it conflicts with the notion of the Court as a
body that defers to the elected branches. Another is
that empirical evidence suggests that some Supreme
Courts have not used judicial review in this manner.
According to Robert Dahl, many of the acts struck
down by the Supreme Court before the 1960s were
those that harmed a “privileged class,” not
disadvantaged minorities.46 We saw similar
decisions by the Court as well: in City of Richmond v.
J. A. Croson Co. (1989) the justices struck down a
city affirmative action program designed to help
minority interests.
46 Robert Dahl, “Decision-Making in a Democracy:

The Supreme Court as a National Policy-Maker,”
Journal of Public Law 6 (1957): 279–295.
Judicial Review in Action.

The controversies discussed above are important to
the extent that they place the subject of judicial
review within a theoretical context for debate. But
they present debates that probably never will be
resolved: as one side finds support for its position,
the other always seems to follow suit.
Let us consider instead several issues arising from
the way the Court has exercised the power of judicial
review: the number of times it has invoked the
power to strike laws and the significance of those
decisions. As Lawrence Baum suggests, investigation
of these issues can help us achieve a better
understanding of judicial review and place it in a
realistic context.47 First, how often has the Court
overturned a federal, state, or local law or
ordinance? The data seem to indicate that the Court
has made frequent use of the power, striking down
close to fifteen hundred government acts since 1789.
As Baum notes, however, those acts are but a
“minute fraction” of the laws enacted at various
levels of government. Since 1790, for example,
Congress has passed more than sixty thousand laws,
and the Court has struck down far less than 1
percent of them.
47 Lawrence Baum, The Supreme Court, 9th ed.

The more important question, then, may be that of

significance: Does the Court tend to strike down
important laws or relatively minor laws? Using Scott
v. Sandford (excerpted in Chapter 6) as an
illustration, some argue that the Court, in fact, often
strikes important legislation. Undoubtedly, the
Court’s opinion in Scott had major consequences. By
ruling that Congress could not prohibit slavery in the
territories and by striking down a law, the Missouri
Compromise (which had already been repealed), the
Court fed the growing divisions between the North
and South and provided a major impetus for the Civil
War. The decision also tarnished the prestige of the
Court and the reputation of Chief Justice Roger B.
Taney.
But how representative is Scott? Some other Court

opinions striking down government acts have been
almost as important—those nullifying state abortion
and segregation laws, the federal child labor acts,
and many pieces of New Deal legislation come to
mind. But, as Baum astutely notes, “many of the
Court’s decisions declaring statutes unconstitutional
have been unimportant.”48 Monongahela Navigation
Co. v. United States (1893) is an example. Here the
Court struck down, on Fifth Amendment grounds, a
law concerning the amount of money the United
States would pay to companies for the “purchase or
condemnation of a certain lock and dam in the
Monongahela River.”
48 Ibid., 164.
Concluding Thoughts.
Despite all the controversies, debates, and even
data, we end where we began this section: rarely do
Americans and their leaders challenge the federal
courts’ power of judicial review. It is so bedrock, so
much a part of our system of government that it is
almost as if it is written into the Constitution.
And we are no longer alone. Judicial review has
taken hold in over 80 percent of countries
throughout the world.49 But, unlike the United
States, these countries have written the power into
their constitutions instead of leaving its
establishment to chance (see Box 2-3).
49 See Tom Ginsburg and Mila Versteeg, “Why Do

Countries Adopt Constitutional Review?,” 30 Journal
of Law, Economics and Organization 587 (2014).
Still, considering all the attention paid to judicial

review both in the United States and elsewhere, it is
easy to forget that the power of courts to exercise it,
and their judicial authority more generally, has
substantial limits. In the next sections, we consider
two such limits: those that emanate from the Court’s
reading of Article III and those that stem more
generally from the separation of powers system.
Constraints on Judicial Power:

Article III
Article III—or the Court’s interpretation of it—places
three major constraints on the ability of federal
tribunals to hear and decide cases: (1) courts must
have authority to hear a case (jurisdiction), (2) the
case must be appropriate for judicial resolution
(justiciability), and (3) the appropriate party must
bring the case (standing to sue). In what follows, we
review doctrine surrounding these constraints. As
you read this discussion, consider not only the
Court’s interpretation of its own limits but also the
justifications it offers. Note, in particular, how fluid
these can be: sometimes the Supreme Court has
favored loose constructions of the rules; at other
times it has interpreted them more strictly. What
factors might explain these different tendencies? Or,
to think about it another way, to what extent do
these constraints limit the Court’s authority?
Jurisdiction
According to Chief Justice Salmon P. Chase, “Without
jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining
to the court is that of announcing the fact and
dismissing the cause.”50 In other words, a court
cannot hear a case unless it has the authority—the
jurisdiction—to do so.
50 (1869).
Article III, Section 2, defines the jurisdiction of U.S.

federal courts. Lower courts have the authority to
hear disputes involving particular parties and
subject matter. The U.S. Supreme Court’s
jurisdiction is divided into original and appellate: the
former are classes of cases that originate in the
Court; the latter are those it hears after a lower
court.
To what extent does jurisdiction actually constrain
the federal courts? Marbury v. Madison provides
some answers, although contradictory, to this
question. Chief Justice Marshall informed Congress
that it could not alter the original jurisdiction of the
Court. Having reached this conclusion, perhaps
Marshall should have merely dismissed the case on
the ground that the Court lacked authority to hear it,
but that is not what he did.
Marbury remains an authoritative ruling on original

jurisdiction. The issue of appellate jurisdiction may
be a bit more complex. Article III explicitly states
that for those cases over which the Court does not
have original jurisdiction, it “shall have appellate
Jurisdiction . . . with such Exceptions, and under
such Regulations as the Congress shall make.” In
other words, the exceptions clause seems to give
Congress authority to alter the Court’s appellate
jurisdiction—including to subtract from it.
Would the justices agree? In Ex parte McCardle the

Court addressed this question, examining whether
Congress can use its power under the exceptions
clause to remove the Court’s appellate jurisdiction
over a particular category of cases.
Box 2-3 Judicial Review in Global Perspective
JUDICIAL AUTHORITY to invalidate acts of

coordinate branches of government is not unique
to the United States, although it is fair to say that
the prestige of the U.S. Supreme Court has
provided a model and incentive for other
countries. By the middle of the nineteenth century,
the Judicial Committee of the British Privy Council
was functioning as a kind of constitutional arbiter
for colonial governments within the British Empire
—but not for the United Kingdom itself. Then in
the late nineteenth century Canada, and in the
first years of the twentieth Australia, created their
own systems of constitutional review.
In the nineteenth century Argentina also modeled

its Corte Suprema on that of the United States and
even instructed its judges to pay special attention
to precedents of the American tribunal. In the
twentieth century Austria, India, Ireland, and the
Philippines adopted judicial review, and variations
of this power can be found in Norway,
Switzerland, much of Latin America, and some
countries in Africa.
After World War II the three defeated Axis powers

—Italy, Japan, and (West) Germany—
institutionalized judicial review in their new
constitutions. This development was due in part to
revulsion regarding their recent experiences with
unchecked political power and in part to the
influence of American occupying authorities.
Japan, where the constitutional document was
largely drafted by Americans, follows the
decentralized model of the United States: the
power of constitutional review is diffused
throughout the entire judicial system.1 Any court
of general jurisdiction can declare a legislative or
executive act invalid.
1. Walter F. Murphy and Joseph Tanenhaus, eds.,
Comparative Constitutional Law (New York: St.
Martin’s Press, 1977), chaps. 1–6; C. Neal Tate
and Torbjörn Vallinder, eds., The Global Expansion
of Judicial Power: The Judicialization of Politics
(New York: New York University Press, 1995).
Germany and Italy, and later Belgium, Portugal,

and Spain, followed a centralized model first
adopted in the Austrian constitution of 1920. Each
country has a single constitutional court (although
some sit in divisions or senates) that has a judicial
monopoly on reviewing acts of government for
their compatibility with the constitution. The most
a lower court judge can do when a constitutional
issue is raised is to refer the problem to the
specialized constitutional court. (See Box 1-1.)
After the Berlin Wall was torn down in 1989 and

the Soviet Union disintegrated soon after, many
Eastern European republics looked to judges’
interpreting constitutional texts with bills of rights
to protect their newfound liberties. Most opted for
centralized systems of constitutional review,
establishing ordinary tribunals and a separate
constitutional court. They made this choice
despite familiarity with John Marshall’s argument
for a decentralized court system in Marbury;
namely, all judges may face the problem of a
conflict between a statute or executive order on
one hand and the terms of a constitutional
document on the other. If judges cannot give
preference to the constitutional provision over
ordinary legislation or an executive act, they
violate their oath to support the constitution.
The experiences of these tribunals have varied.
The German Constitutional Court is largely
regarded as a success story. In its first thirty-eight
years, that tribunal invalidated 292 Bund
(national) and 130 Land (state) laws, provoking
frequent complaints that it “judicializes” politics.2
The Court, however, has survived these attacks
and has gone on to create a new and politically
significant jurisprudence in the fields of
federalism and civil liberties. The Russian
Constitutional Court stood (or teetered) in stark
contrast. It too began to make extensive use of
judicial review to strike down government acts,
but it quickly paid a steep price: in 1993 President
Boris Yeltsin suspended the court’s operations,
and it did not resume its activities until nearly two
years later.
2. Donald P. Kommens, The Constitutional

Jurisprudence of the Federal Republic of Germany,
2nd ed. (Durham, NC: Duke University Press,
1997), 52.
Source: Adapted from C. Herman Pritchett,

Walter F. Murphy, Lee Epstein, and Jack Knight,
Courts, Judges, and Politics (New York: McGraw-
Hill, 2005), chap. 6.
Ex parte McCardle 74 U.S. (7 Wall.) 506 (1869)
court/74/506.html
Vote: 8 (Chase, Clifford, Davis, Field, Grier, Miller,

Nelson, Swayne)
0
OPINION OF THE COURT: Chase
Facts:
After the Civil War, the Radical Republican
Congress imposed a series of restrictions on the
South.51 Known as the Reconstruction laws, they
in effect placed the region under military rule.
Journalist William McCardle opposed these
measures and wrote editorials urging resistance
to them. As a result, he was arrested for
publishing allegedly “incendiary and libelous
articles” and held for a trial before a military
tribunal established under Reconstruction.
51 See Lee Epstein and Thomas G. Walker, “The

Role of the Supreme Court in American Society:
Playing the Reconstruction Game,” in
Contemplating Courts, ed. Lee Epstein
Because he was a civilian, not a member of any

militia, McCardle claimed that he was being
illegally held. He petitioned for a writ of habeas
corpus under an 1867 act stipulating that federal
courts had the power to grant writs of habeas
corpus in all cases where prisoners—state and
federal—were deprived of their liberty in violation
of the Constitution, laws, or treaties of the United
States. When this effort failed, McCardle appealed
to the U.S. Supreme Court. Under the Judiciary
Act of 1789, the Supreme Court already had
appellate jurisdiction over federal habeas cases;
the 1867 law extended appellate jurisdiction to
cases involving state prisoners. Even though
McCardle was held by federal authorities, he
brought his case to the Court under the 1867 law.
In early March 1868, McCardle “was very

thoroughly and ably [presented] upon the merits”
to the U.S. Supreme Court. It was clear to most
observers that “no Justice was still making up his
mind”: the Court’s sympathies, as was widely
known, lay with McCardle.52 But before the
justices issued their decision, Congress, on March
27, 1868, enacted a law repealing the provision of
the 1867 Habeas Corpus Act that gave the
Supreme Court authority to hear appeals arising
from it; that is, Congress removed the Court’s
jurisdiction to hear appeals in cases like
McCardle’s. This move was meant either to punish
the Court or to send it a strong message. Two
years before McCardle, in 1866, the Court had
invalidated President Abraham Lincoln’s use of
military tribunals in certain areas, and Congress
did not want to see the Court take similar action in
this dispute.53 The legislature felt so strongly on
this issue that after President Andrew Johnson
vetoed the 1868 repealer act, Congress overrode
the veto.
52 Charles Fairman, History of the Supreme Court

of the United States, vol. 7, Reconstruction and
Reunion (New York: Macmillan, 1971), 456.
53 That action came in Ex parte Milligan (1866),

discussed in Chapter 5.
The Court responded by redocketing the case for
oral arguments in March 1869. During the
arguments and in its briefs, the government
contended that the Court no longer had authority
to hear the case and should dismiss it.
Arguments:
For the appellant, William McCardle:
According to the Constitution, the judicial
power extends to “the laws of the United
States.” The Constitution also vests that
judicial power in one Supreme Court. The
jurisdiction of the Supreme Court, then, comes
directly from the Constitution, not from
Congress.
Suppose that Congress never made any
exceptions or any regulations regarding the
Court’s appellate jurisdiction. Under the
argument that Congress must define when,
where, and how the Supreme Court shall
exercise its jurisdiction, what becomes of the
“judicial power of the United States,” given to
the Supreme Court? It would cease to exist.
But the Court is coexistent and co-ordinate
with Congress, and must be able to exercise
judicial power even if Congress passed no act
on the subject.
By interfering in a case that has already been
argued and is under consideration by the
Court, Congress is unconstitutionally exercising
judicial power.
For the Appellee, United States:
The Constitution gives Congress the power to
“except” any or all of the cases mentioned in
the jurisdiction clause of Article III from the
appellate jurisdiction of the Supreme Court. It
was clearly Congress’s intention, in the
repealer act, to exercise its power to except.
The Court has no authority to pronounce any
opinion or render any judgment in this cause
because the act conferring the jurisdiction has
been repealed, and so jurisdiction ceases.
No court can act in any case without
jurisdiction, and it does not matter at what
period in the progress of the case the
jurisdiction ceases. After it has ceased, no
judicial act can be performed.
The Chief Justice Delivered the Opinion of the

Court.
The first question necessarily is that of

jurisdiction, for if the act of March, 1868, takes
away the jurisdiction defined by the act of
February, 1867, it is useless, if not improper, to
enter into any discussion of other questions.
It is quite true, as was argued by the counsel for

the petitioner, that the appellate jurisdiction of
this court is not derived from acts of Congress. It
is, strictly speaking, conferred by the Constitution.
But it is conferred “with such exceptions and
under such regulations as Congress shall make.”
It is unnecessary to consider whether, if Congress
had made no exceptions and no regulations, this
court might not have exercised general appellate
jurisdiction under rules prescribed by itself. From
among the earliest Acts of the first Congress, at its
first session, was the Act of September 24th,
1789, to establish the judicial courts of the United
States. That Act provided for the organization of
this court, and prescribed regulations for the
exercise of its jurisdiction. . . .
The principle that the affirmation of appellate

jurisdiction implies the negation of all such
jurisdiction not affirmed having been thus
established, it was an almost necessary
consequence that acts of Congress, providing for
the exercise of jurisdiction, should come to be
spoken of as acts granting jurisdiction, and not as
acts making exceptions to the constitutional grant
of it.
The exception to appellate jurisdiction in the case

before us, however, is not an inference from the
affirmation of other appellate jurisdiction. It is
made in terms. The provision of the Act of 1867,
affirming the appellate jurisdiction of this court in
cases of habeas corpus, is expressly repealed. It is
hardly possible to imagine a plainer instance of
positive exception.
We are not at liberty to inquire into the motives of

the Legislature. We can only examine into its
power under the Constitution; and the power to
make exceptions to the appellate jurisdiction of
this court is given by express words.
What, then, is the effect of the repealing Act upon
the case before us? We cannot doubt as to this.
Without jurisdiction the court cannot proceed at
all in any cause. Jurisdiction is power to declare
the law, and when it ceases to exist, the only
function remaining to the court is that of
announcing the fact and dismissing the cause. And
this is not less clear upon authority than upon
principle. . . .
It is quite clear, therefore, that this . . . court

cannot proceed to pronounce judgment in this
case, for it has no longer jurisdiction of the
appeal; and judicial duty is not less fitly performed
by declining ungranted jurisdiction than in
exercising firmly that which the Constitution and
the laws confer.
Counsel seem to have supposed, if effect be given

to the repealing act in question, that the whole
appellate power of the court, in cases of habeas
corpus, is denied. But this is an error. The act of
1868 does not except from that jurisdiction any
cases but appeals from Circuit Courts under the
act of 1867. It does not affect the jurisdiction
which was previously exercised.
The appeal of the petitioner in this case must be

dismissed for want of jurisdiction.
DISMISSED FOR WANT OF JURISDICTION
As we can see, the Court acceded and declined to

hear the case. McCardle suggests that Congress has
the authority to remove the Court’s appellate
jurisdiction as it deems necessary. As Justice Felix
Frankfurter put it in 1949, “Congress need not give
this Court any appellate power; it may withdraw
appellate jurisdiction once conferred and it may do
so even while a case is sub judice [before a
judge].”54 Former justice Owen J. Roberts, who
apparently agreed with Frankfurter’s assertion,
proposed an amendment to the Constitution that
would have deprived Congress of the ability to
remove the Court’s appellate jurisdiction.55 To
Frankfurter, Roberts, and others in their camp, the
McCardle precedent, not to mention the text of the
exceptions clause, makes it quite clear that Congress
can remove the Court’s appellate jurisdiction.56 In
1962, however, Justice William O. Douglas remarked,
“There is a serious question whether the McCardle
case could command a majority view today.”57 And
even Chief Justice Chase himself suggested limits on
congressional power in this area. After McCardle
was decided, he noted that use of the exceptions
clause was “unusual and hardly to be justified except
upon some imperious public exigency.”58
54 National Mutual Insurance Co. v. Tidewater

Transfer Co. (1949).
55 See Owen J. Roberts, “Now Is the Time: Fortifying

the Supreme Court’s Independence,” American Bar
Association Journal 35 (1949): 1. The Senate
approved the amendment in 1953, but the House
tabled it. Cited in Gerald Gunther, Constitutional
Law, 12th ed. (Westbury, NY: Foundation Press,
1991), 45.
56 We deal only with the question directly flowing

from McCardle—of whether Congress can remove
the Supreme Court’s appellate jurisdiction—not the
related questions of whether it can strip jurisdiction
from the lower federal courts or strip all federal
jurisdiction. For interesting commentary on these
questions, see Richard H. Fallon et al., Hart &
Wechsler’s The Federal Courts and the Federal
System, 5th ed. (New York: Foundation Press, 2003);
Gerald Gunther, “Congressional Power to Curtail
Federal Court Jurisdiction: An Opinionated Guide to
the Ongoing Debate,” Stanford Law Review 36
(1984): 895–922.
57 Glidden Co. v. Zdanok (1962).
58 Ex parte Yerger (1869).
Why the disagreement over the precedential value of

McCardle when the Court’s holding—not to mention
the text of the Constitution—seems so clear? One
argument against McCardle’s viability is that it was
something of an odd case, that the Court had no
choice but to acquiesce to Congress if it wanted to
retain its legitimacy in post–Civil War America. The
pressures of the day, rather than the Constitution or
the beliefs of the justices, may have led to the
decision. Some commentators also suggest that
McCardle does not square with American traditions:
before McCardle, Congress had never stripped the
Court’s jurisdiction, and after McCardle, Congress
did not take this step even in response to some of
the Court’s most controversial constitutional
decisions such as Roe v. Wade and Brown v. Board
of Education, as Table 2-2 indicates.59
59 Grove argues that this tradition follows the

requirements of enacting legislation (primarily
bicameralism and presentment) outlined in Article I.
These “structural safeguards,” she argues, “give
competing political factions (even political
minorities) considerable power to ‘veto’ legislation.”
And such factions are especially “likely to use their
structural veto to block jurisdiction-stripping
legislation favored by their opponents.” Grove, “The
Structural Safeguards of Federal Jurisdiction,” 869.
Then there is the related claim that, taken to its

extreme, jurisdiction stripping could render the
Court virtually powerless. Would the framers have
vested judicial power in “one Supreme Court . . .”
only to allow Congress to destroy it? Many scholars
say no.
A final set of arguments against McCardle focus on

its precedential value. One set points to the last
paragraph of Chief Justice Chase’s opinion: “Counsel
seem to have supposed, if effect be given to the
repealing act in question, that the whole appellate
power of the court, in cases of habeas corpus, is
denied. But this is an error.” Chase is correct.
Although Congress eliminated the route that
McCardle took—the 1867 law—it did not end
another: the Judiciary Act of 1789, which, as we
noted, gave the Court jurisdiction over habeas
petitions filed by federal prisoners, which McCardle
was. And, in fact, shortly after McCardle, the Court
heard the case of Ex parte Yerger (1869), which also
involved a military trial for a private citizen. But this
case reached the Court through its jurisdiction
under the 1789 Act, not the 1867 law, and led to a
different outcome. In an opinion written by Chief
Justice Chase, the author of McCardle, the Court
affirmed its power to issue the writ of habeas corpus
in such cases.
The Yerger decision, combined with McCardle’s last

paragraph, has led some experts to conclude that
the Court would have been less likely to cave to
Congress in McCardle had Congress “foreclosed all
avenues for judicial review of McCardle’s
complaint.”60
60 Chief Justice John Roberts dissenting in Patchak

v. Zinke (2018), excerpted in this chapter.
Another precedent that may cast some doubt on

McCardle comes from United States v. Klein (1871).
Klein is a complicated dispute that still generates
debate among law scholars and justices,61 but the
upshot is this. In 1863, during the Civil War,
Congress passed a law that allowed people living in
rebel states to obtain money from the sale of
property seized by the government if they could
prove that they had not “given any aid and comfort”
to the rebels. In 1870, in United States v. Padelford,
the Supreme Court held that a presidential pardon
would provide conclusive evidence of loyalty for
purposes of the 1863 law.
61 See Patchak v. Zinke (2018) and the cites

contained in the amicus curiae brief filed by Federal
Courts Scholars in Zinke. We adopt some of the
preceding discussion from this brief.
Congress, concerned that President Andrew Johnson

would pardon too many confederate supporters,
passed a law to respond to Padelford. The law barred
rebels from using a pardon as evidence of loyalty. It
also said that if a confederate supporter had
received a presidential pardon, “the jurisdiction of
the court in the case shall cease, and the court shall
forthwith dismiss the suit of such claimant.” Finally,
if a lower court already had found in favor of the
pardoned claimant and the government had
appealed, the law instructed the Supreme Court to
dismiss the suit for lack of jurisdiction.
Table 2-2
Source: Adapted from Kathleen M. Sullivan and

Gerald Gunther, Constitutional Law, 15th ed. (New
York: Foundation Press, 2004), 83–85; Tara Leigh
Grove, “The Structural Safeguards of Federal
Jurisdiction,” Harvard Law Review 124 (2011): 869–
940.
In Klein, the Court struck down the 1870 law.

Although Chief Justice Chase, writing yet again for
the majority, acknowledged that the exceptions
clause gave Congress the right to remove the
Court’s appellate jurisdiction, he held that Congress
may not “prescribe rules of decision to the Judicial
Department . . . in cases pending before it.” The law
forbade the Court to “give the effect to evidence
[here, a presidential pardon] which, in its own
judgment [in Padelford], such evidence should have,
and is directed to give it an effect precisely the
opposite.” By so forbidding, “Congress has
inadvertently passed the limit which separates the
legislative from the judicial power.” The Court also
held that the law infringed on “the constitutional
power of the executive” by curtailing the effect of a
presidential pardon.
Still, Klein did not settle the issue. Nearly 150 years
later, in Patchak v. Zinke (2018), the Court revisited
both Klein and McCardle. Almost all the justices
agreed that Congress had stripped the Court’s
jurisdiction to hear cases involving a particular piece
of land. But they disagreed over whether Congress
had acted constitutionally. Which side has the better
case?
Patchak v. Zinke 583 U.S. ___ (2018)
https://caselaw.findlaw.com/us-supreme-court/16-
498.html
Oral arguments available at

https://www.oyez.org/cases/2017/16-498.
Vote: 6 (Alito, Breyer, Ginsburg, Kagan,

Sotomayor, Thomas)
3 (Gorsuch, Kennedy, Roberts)

JUDGMENT OF THE COURT: Thomas
OPINIONS CONCURRING IN THE
JUDGMENT: Ginsburg, Sotomayor
DISSENTING OPINION: Roberts
Facts:
The Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians (“Band”) reside in Michigan
near the township of Wayland. In the early 2000s,
the Band identified a 147-acre parcel of land in
Wayland, known as the Bradley Property, where it
wanted to build a casino. The Band asked the
secretary of the interior to invoke the Indian
Reorganization Act to take the Bradley Property
into trust. The secretary agreed, but before it
formally took the land into trust, a nearby
landowner, David Patchak, filed a lawsuit in
federal district court challenging the secretary’s
decision on various grounds. Patchak’s case
eventually reached the Supreme Court under the
name Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak (Patchak I). The
Court did not reach a decision on the merits of the
dispute but instead held on procedural grounds
that “Patchak’s suit may proceed.” The case then
went back to the district court.
While the case was in the district court, Congress

passed the Gun Lake Act of 2014, which
reaffirmed the Bradley Property as “trust land”
and ratified the actions of the secretary of the
interior in taking the land into trust. The Act, in
Section 2(b) when on to provide:
No Claims.—Notwithstanding any other
provision of law, an action (including an action
pending in a Federal court as of the date of
enactment of this Act) relating to the land
described in subsection (a) shall not be filed or
maintained in a Federal court and shall be
promptly dismissed.
Based on Section 2(b) the district court dismissed

Patchak’s suit for lack of jurisdiction, and the
court of appeals affirmed. The Supreme Court
granted certiorari to determine whether Section
2(b) violates Article III of the Constitution.
Arguments
For the petitioner, David Patchak:
Section 2(b) of the Gun Lake Act violates the
separation of powers system because Congress
has intruded upon the judicial power.
Any legislative interference in the adjudication
of the merits of a particular case carries the
risk that political power will supplant
evenhanded justice.
Section 2(b) is similar to the statute at issue in
United States v. Klein (1871), where the Court
held that Congress had “passed the limit which
separates the legislative from the judicial
power,” when it “directed” that courts “shall
forthwith dismiss” pending cases.
For the respondent, Ryan Zinke,
Secretary of the Interior:
Just as Congress is empowered to confer
jurisdiction, Congress may take away
jurisdiction in whole or in part; and if
jurisdiction is withdrawn, all pending cases
though cognizable when commenced must fall.
See Ex parte McCardle (1868).
Section 2(b) does not transgress any
separation of powers limitation. It does not
instruct courts to interpret existing law (or
apply it to the facts) in a particular way or vest
review of judicial decisions in another branch
of government.
Section 2(b) is not similar to the extreme law
at issue in United States v. Klein (1871). That
law both impinged on the president’s pardon
power and directed courts to dismiss cases
only if they first made dispositive findings
adverse to the government.
Justice Thomas Announced the Judgment of

the Court and Delivered an Opinion, in which
Justice Breyer, Justice Alito, and Justice Kagan
Join.
The Constitution creates three branches of

Government and vests each branch with a
different type of power. . . .
The separation of powers, among other things,
prevents Congress from exercising the judicial
power. One way that Congress can cross the line
from legislative power to judicial power is by
“usurp[ing] a court’s power to interpret and apply
the law to the [circumstances] before it.” The
simplest example would be a statute that says, “In
Smith v. Jones, Smith wins.” At the same time, the
legislative power is the power to make law, and
Congress can make laws that apply retroactively
to pending lawsuits, even when it effectively
ensures that one side wins.
To distinguish between permissible exercises of

the legislative power and impermissible
infringements of the judicial power, this Court’s
precedents establish the following rule: Congress
violates Article III when it “compel[s] . . . findings
or results under old law.” But Congress does not
violate Article III when it “changes the law.”
Section 2(b) changes the law. Specifically, it strips

federal courts of jurisdiction over actions “relating
to” the Bradley Property. Before the Gun Lake Act,
federal courts had jurisdiction to hear these
actions. Now they do not. This kind of legal
change is well within Congress’ authority and
does not violate Article III.
Statutes that strip jurisdiction “chang[e] the law”

for the purpose of Article III,, just as much as
other exercises of Congress’ legislative authority. .
. . Thus, when Congress strips federal courts of
jurisdiction, it exercises a valid legislative power
no less than when it lays taxes, coins money,
declares war, or invokes any other power that the
Constitution grants it.
Indeed, this Court has held that Congress

generally does not violate Article III when it strips
federal jurisdiction over a class of cases. . . .
Jurisdiction-stripping statutes, the Court explained
[in Ex parte McCardle], do not involve “the
exercise of judicial power” or “legislative
interference with courts in the exercising of
continuing jurisdiction.” . . . [That is,] Congress
generally does not infringe the judicial power
when it strips jurisdiction because, with limited
exceptions, a congressional grant of jurisdiction is
a prerequisite to the exercise of judicial power. . . .
Patchak does not dispute Congress’ power to

withdraw jurisdiction from the federal courts. He
instead [argues] that §2(b) violates Article III,
even if it strips jurisdiction. [R]elying on United
States v. Klein 128 (1872), Patchak argues . . . that
the last four words of §2(b)—“shall be promptly
dismissed”—direct courts to reach a particular
outcome. But a statute does not violate Article III
merely because it uses mandatory language.
Instead of directing outcomes, the mandatory
language in §2(b) “simply imposes the
consequences” of a court’s determination that it
lacks jurisdiction because a suit relates to the
Bradley Property. [S]ee McCardle.
Patchak compares §2(b) to the statute this Court

held unconstitutional in Klein. . . . Klein held that
[the 1870] statute infringed the executive power
by attempting to “change the effect of . . . a
pardon.” Klein also held that the statute infringed
the judicial power, although its reasons for this
latter holding were not entirely clear.
[T]he statute in Klein “infringed the judicial power,

not because it left too little for courts to do, but
because it attempted to direct the result without
altering the legal standards governing the effect
of a pardon—standards Congress was powerless to
prescribe.” Congress had no authority to declare
that pardons are not evidence of loyalty, so it
could not achieve the same result by stripping
jurisdiction whenever claimants cited pardons as
evidence of loyalty. Nor could Congress confer
jurisdiction to a federal court but then strip
jurisdiction from that same court once the court
concluded that a pardoned claimant should prevail
under the statute.
Patchak’s attempts to compare §2(b) to the statute

in Klein are unpersuasive. Section 2(b) does not
attempt to exercise a power that the Constitution
vests in another branch. And unlike the selective
jurisdiction-stripping statute in Klein, §2(b) strips
jurisdiction over every suit relating to the Bradley
Property. Indeed, Klein itself explained that
statutes that do “nothing more” than strip
jurisdiction over “a particular class of cases” are
constitutional. That is precisely what §2(b) does. . .
.
We conclude that §2(b) of the Gun Lake Act does

not violate Article III of the Constitution. The
judgment of the Court of Appeals is, therefore,
affirmed.
CHIEF JUSTICE ROBERTS, with
whom JUSTICE KENNEDY and
JUSTICE GORSUCH Join,
Dissenting.
Chief Justice Marshall wrote that the Constitution
created a straightforward distribution of
authority: The Legislature wields the power “to
prescribe general rules for the government of
society,” but “the application of those rules to
individuals in society” is the “duty” of the
Judiciary. Fletcher v. Peck (1810). Article III, in
other words, sets out not only what the Judiciary
can do, but also what Congress cannot.
Congress violates this arrangement when it

arrogates the judicial power to itself and decides a
particular case. We first enforced that rule in
United States v. Klein (1872). . . . This Court [held
that] Congress, in addition to impairing the
President’s pardon power, had “prescribe[d] rules
of decision to the Judicial Department . . . in cases
pending before it.” . . .
[T]he facts of this case are stark. . . . When

Congress passed the [Gun Lake Act] in 2014, no
other suits relating to the Bradley Property were
pending, and the [statute of limitations on
challenges to the Secretary’s action] . . . had
expired. . . .
Recognizing that the “clear intent” of Congress

was “to moot this litigation,” the District Court
dismissed Patchak’s case against the Secretary.
The D. C. Circuit affirmed, also based on the
“plain” directive of §2(b) [that is, Section 2(b)].
Congress has previously approached the boundary

between legislative and judicial power, but it has
never gone so far as to target a single party for
adverse treatment and direct the precise
disposition of his pending case. Section 2(b)—
remarkably—does just that. . . .
I would hold that Congress exercises the judicial

power when it manipulates jurisdictional rules to
decide the outcome of a particular pending case.
Because the Legislature has no authority to direct
entry of judgment for a party, it cannot achieve the
same result by stripping jurisdiction over a
particular proceeding. . . .
Over and over, the plurality intones that §2(b) does

not impinge on the judicial power because the
provision “changes the law. But all that §2(b) does
is deprive the court of jurisdiction in a single
proceeding. If that is sufficient to change the law,
the plurality’s rule “provides no limiting principle”
on Congress’s ability to assume the role of judge
and decide the outcome of pending cases. . . .
In my view, the concept of “changing the law”

must imply some measure of generality or
preservation of an adjudicative role for the courts.
. . . The Court, to date, has never sustained a law
that withdraws jurisdiction over a particular
lawsuit.
The closest analogue is of course Ex parte

McCardle (1869), which the plurality nonchalantly
cites as one of its leading authorities [even
though] McCardle has been alternatively
described as “caving to the political dominance” of
the Radical Republicans or “acceding to
Congress’s effort to silence the Court.” Read for
all it is worth, the decision is also inconsistent
with the approach the Court took just three years
later in Klein, where Chief Justice Chase (a
dominant character in this drama) stressed that
“[i]t is of vital importance” that the legislative and
judicial powers “be kept distinct.”
The facts of McCardle, however, can support a

more limited understanding of Congress’s power
to divest the courts of jurisdiction. For starters,
the repealer provision covered more than a single
pending dispute; it applied to a class of cases,
barring anyone from invoking the Supreme
Court’s appellate jurisdiction in habeas cases for
the next two decades. In addition, the Court’s
decision did not foreclose all avenues for judicial
review of McCardle’s complaint. As Chase made
clear—and confirmed later that year in his opinion
for the Court in Ex parte Yerger (1869)—the
statute did not deny “the whole appellate power of
the Court.” McCardle, by taking a different
procedural route and filing an original habeas
action, could have had his case heard on the
merits.
Section 2(b), on the other hand, has neither saving

grace. It ends Patchak’s suit for good. His federal
case is dismissed, and he has no alternative means
of review anywhere else. . . . Section 2(b) thus
reaches further than the typical jurisdictional
repeal. . . . Because [it] singles out Patchak’s suit,
specifies how it must be resolved, and deprives
him of any judicial forum for his claim, the
decision to uphold that provision surpasses even
McCardle as the highwater mark of legislative
encroachment on Article III.
Indeed, although the stakes of this particular

dispute may seem insignificant, the principle that
the plurality would enshrine is of historic
consequence. In no uncertain terms, the plurality
disavows any limitations on Congress’s power to
determine judicial results, conferring on the
Legislature . . . authority to pick winners and
losers in pending litigation as it pleases. . . .
I respectfully dissent.
In Patchak, Justice Thomas’s plurality opinion

emphasized McCardle and distinguished Klein. Chief
Justice Roberts’s did the reverse: minimized—
perhaps even questioned—McCardle and elevated
Klein. Thomas’s view prevailed but for how long? Put
another way, do you think Patchak brings closure to
the debate over Congress’s power to strip the
Court’s jurisdiction—a debate that has been ongoing
almost from the day the Court issued McCardle?
Justiciability
According to Article III, the federal courts’ judicial
power is restricted to “cases” or “controversies.”
Taken together, these words mean that litigation
must be justiciable—appropriate or suitable for a
federal tribunal to hear or to solve. As Chief Justice
Earl Warren asserted, the words “cases” and
“controversies”
are two complementary but somewhat different

limitations. In part those words limit the
business of federal courts to questions presented
in an adversary context and in a form historically
viewed as capable of resolution through the
judicial process. And in part those words define
the role assigned to the judiciary in a tripartite
allocation of power to assure that the federal
courts will not intrude into areas committed to
the other branches of government. Justiciability
is the term of art employed to give expression to
this dual limitation placed upon federal courts by
the case-and-controversy doctrine.62
62 Flast v. Cohen (1968).
Although Warren also suggested that “justiciability is

itself a concept of uncertain meaning and scope,” he
elucidated several characteristics of litigation that
would render it nonjusticiable. In this section, we
treat five: advisory opinions, collusive suits,
mootness, ripeness, and political questions. In the
following section we deal with another concept
related to justiciability—standing to sue.
Advisory Opinions.
In some U.S. states and foreign countries, judges of
the highest court are required to give their “advice”
on the constitutionality of a proposed policy at the
request of the executive or legislature. Since the
time of Chief Justice John Jay, however, federal
judges in the United States have refused to issue
advisory opinions. They do not render advice in
hypothetical suits because if litigation is abstract, it
possesses no real controversy. The language of the
Constitution does not prohibit advisory opinions as
opinions, but the framers rejected a proposal that
would have permitted the other branches of
government to request judicial rulings “upon
important questions of law, and upon solemn
occasions.” Madison was critical of this proposal on
the ground that the judiciary should have jurisdiction
only over “cases of a Judiciary Nature.”63
63 Quoted by Farber and Sherry, A History of the

American Constitution, 65.
The Supreme Court agreed. In July 1793, Secretary

of State Thomas Jefferson asked the justices if they
would be willing to address questions concerning the
appropriate role America should play in the ongoing
British–French war. Jefferson wrote that President
George Washington “would be much relieved if he
found himself free to refer questions [involving the
war] to the opinions of the judges of the Supreme
Court in the United States, whose knowledge . . .
would secure us against errors dangerous to the
peace of the United States.”64 Less than a month
later the justices denied Jefferson’s request, with a
reply written directly to the president:
64 The full text of Jefferson’s letter is in Henry M.

Hart Jr. and Albert M. Sacks, The Legal Process, ed.
William N. Eskridge Jr. and Philip P. Frickey
(Westbury, NY: Foundation Press, 1994), 630–632.
We have considered [the] letter written by your

direction to us by the Secretary of State
[regarding] the lines of separation drawn by the
Constitution between the three departments of
government. These being in certain respects
checks upon each other, and our being judges of
a court in the last resort, are considerations
which afford strong arguments against the
propriety of our extra-judicially deciding the
questions alluded to, especially as the power
given by the Constitution to the President, of
calling on the heads of departments for opinions,
seems to have been purposely as well as
expressly united to the executive departments
[italics provided].65
With these words, the justices sounded the death

knell for advisory opinions: such opinions would
violate the separation of powers principle embedded
in the Constitution. The subject has resurfaced only
a few times in U.S. history. In the 1930s, for
example, President Franklin Roosevelt considered a
proposal that would require the Court to issue
advisory opinions on the constitutionality of federal
laws. But Roosevelt quickly gave up on the idea, at
least in part because of its dubious constitutionality.
Nevertheless, scholars still debate the Court’s 1793

letter to Washington. Some agree with the justices’
logic. Others assert that more institutional concerns
were at work; perhaps the Court—out of concern for
its institutional legitimacy—did not want to become
embroiled in “political” disputes at this early phase
in its development. Whatever the reason, all
subsequent Courts have followed that 1793
precedent: requests for advisory opinions to the U.S.
Supreme Court present nonjusticiable disputes.66
66 We emphasize the Supreme Court because some

state courts do, in fact, issue advisory opinions. Also
keep in mind that the Supreme Court allows a U.S.
court of appeals to certify a “question or proposition
of law on which it seeks instruction for the proper
decision of a case.” Supreme Court Rule 19.
Answering certified questions is a form of advice,
though it occurs within the context of a case or
controversy in the lower court.
But this does not mean that justices have not found
other ways of offering advice.67 A few have
sometimes offered political leaders’ informal
suggestions in private conversations or
correspondence.68 Furthermore, justices of the
Supreme Court have often given advice in an
institutional but indirect manner. The Judiciary Act
of 1925, which granted the Court wide discretion in
controlling its docket, was largely drafted by Justice
Willis Van Devanter. Chief Justice William Howard
Taft and several associate justices openly lobbied for
its passage, “patrolling the halls of Congress,” as
Taft put it. In 1937, when the Senate was
considering President Roosevelt’s Court-packing
plan, opponents arranged for Chief Justice Charles
Evans Hughes to send a letter to Senator Burton K.
Wheeler, advising him that increasing the number of
justices would impede rather than facilitate the
Court’s work and that the justices’ sitting in
separate panels to hear cases—a procedure that
increasing the number of justices was supposed to
allow—would probably violate the constitutional
command that there be one Supreme Court. It has
become customary for chief justices to prepare
annual reports on the state of the judiciary for
Congress. Sometimes in these reports they explain
not only what kind of legislation they believe would
be good for the courts but also the likely impact of
proposed legislation on the federal judicial system.
In one of his addresses, Chief Justice Roberts minced
no words in “advising” the Senate to stop blocking
judicial nominees and begin filling judicial vacancies
posthaste or else many judicial districts would
experience “acute difficulties.”
67 We adopt some of the material to follow from
Murphy et al., Courts, Judges, and Politics, chap. 6.
68 See, for example, Stewart Jay, Most Humble

Servants: The Advisory Role of Early Judges (New
Haven, CT: Yale University Press, 1997).
Finally, justices have occasionally used their opinions

to provide advice to decision makers. In Regents of
the University of California v. Bakke (1978) the
Court held that a state medical school’s version of
affirmative action had deprived a white applicant of
equal protection of the laws by rejecting him in favor
of minority applicants whom the school ranked lower
on all the relevant academic criteria. But Justice
Lewis F. Powell Jr.’s opinion proffered the advice that
the kind of affirmative action program operated by
Harvard University would be constitutionally
acceptable. Of course, Powell’s advice—unlike the
kind George Washington wanted—came in the
context of a real case or controversy.69
69 A more recent example of a justice proferring

advice comes in Gill v. Whitford (2018). In that
case, the Court refused to resolve the
constitutionality of a state redistricting plan on
procedural grounds. In a concurring opinion, Justice
Elena Kagan seemed to offer advice on how the
plaintiffs could succeed in their quest to have federal
courts hear and invalidate such plans, which led
Chief Justice Roberts to respond: “But the opinion of
the Court rests on the understanding that we lack
jurisdiction to decide this case, much less to draw
speculative and advisory conclusions regarding
others.”
Collusive Suits.
A second corollary of justiciability is collusion. The
Court will not decide cases in which the litigants (1)
want the same outcome, (2) evince no real
adversariness between them, or (3) are merely
testing the law. Indeed, Chief Justice Taney once said
that collusion is “contempt of the court, and highly
reprehensible.”70
70 Lord v. Veazie (1850).
Why the Court deems collusive suits nonjusticiable is

well illustrated in Muskrat v. United States (1911).
At issue here were several federal laws involving
land distribution and appropriations to Native
Americans. To determine whether these laws were
constitutional, Congress enacted a statute
authorizing David Muskrat and other Native
Americans to challenge the land distribution law in
court. This legislation also ordered the courts to give
priority to Muskrat’s suit and allowed the attorney
general to defend his claim. Furthermore, Congress
agreed to pay Muskrat’s legal fees if his suit was
successful. When the dispute reached the U.S.
Supreme Court, the justices dismissed it. Justice
William Day wrote,
[T]here is neither more nor less in this
[litigation] than an attempt to provide for a
judicial determination, final in this court, of the
constitutional validity of an act of Congress. Is
such a determination within the judicial power
conferred by the Constitution . . . ? We think it is
not. That judicial power . . . is the right to
determine actual controversies arising between
adverse litigants, duly instituted in courts of
proper jurisdiction. The right to declare a law
unconstitutional arises because an act of
Congress relied upon by one or the other of such
parties in determining their rights is in conflict
with the fundamental law. The exercise of this,
the most important and delicate duty of this
court, is not given to it as a body with revisory
power over the action of Congress, but because
the rights of the litigants in justiciable
controversies require the court to choose
between the fundamental law and a law
purporting to be enacted within constitutional
authority, but in fact beyond the power
delegated to the legislative branch of the
Government. This attempt to obtain a judicial
declaration of the validity of the act of Congress
is not presented in a “case” or “controversy,” to
which, under the Constitution of the United
States, the judicial power alone extends. It is
true the United States is made a defendant to
this action, but it has no interest adverse to the
claimants. . . . The whole purpose of the law is to
determine the constitutional validity of this class
of legislation, in a suit not arising between
parties concerning a property right necessarily
involved in the decision in question, but in a
proceeding against the Government in its
sovereign capacity, and concerning which the
only judgment required is to settle the doubtful
character of the legislation in question.
The Court, however, has not always followed the

Muskrat precedent. Indeed, several collusive suits
resulted in landmark decisions, including Pollock v.
Farmers’ Loan and Trust Co. (1895), in which the
Court declared the federal income tax
unconstitutional. The litigants in this dispute, a bank
and a stockholder in the bank, both wanted the same
outcome—the demise of the tax (see Chapter 8).
Carter v. Carter Coal Company (1936) provides
another example. Here the Court agreed to resolve a
dispute over a major piece of New Deal legislation
even though the litigants, a company president and
the company, which included the president’s father,
both wanted the same outcome—invalidation of the
law (see Chapter 7).
Why did the justices resolve these disputes? One

answer is that the Court might overlook some
element of collusion if the suit presents a real
controversy or the potential for one. Another is that
the temptation to set “good” public policy (or strike
down “bad” public policy) is sometimes too strong
for the justices to follow their own rules. But resist
they should, according to some commentators, with
Pollock and Carter Coal providing examples of why:
in 1913 the country ratified the Sixteenth
Amendment to overturn Pollock, and the Court itself
limited Carter Coal in the 1941 case of United States
v. Darby (excerpted in Chapter 7).
Mootness.
In general, the Court will not decide cases in which
the controversy is no longer live by the time it
reaches the Court’s doorstep. DeFunis v. Odegaard
(1974) is a clear example. Rejected for admission to
the University of Washington Law School, Marco
DeFunis Jr. brought suit against the school, alleging
that it had engaged in reverse discrimination
because it had denied him a place but accepted
statistically less qualified minority students. In 1971
a trial court found merit in his claim and ordered
that the university admit him. While DeFunis was in
his second year of law school, the state’s high court
reversed the trial judge’s ruling. DeFunis then
appealed to the U.S. Supreme Court. By that time, he
had registered for his final quarter in school. In a
per curiam opinion,71 the Court refused to rule on
the merits of DeFunis’s claim, asserting that it was
moot:
71 A per curiam opinion represents the view of a

majority of the justices, but, unlike most other
Supreme Court opinions, it is unsigned. Per curiam
opinions tend to be shorter than other opinions and
are generally but not always used for less
complicated cases.
Because [DeFunis] will complete his law school

studies at the end of the term for which he has
now registered regardless of any decision this
Court might reach on the merits of this litigation,
we conclude that the Court cannot, consistently
with the limitations of Art. III of the Constitution,
consider the substantive constitutional issues
tendered by the parties.
In his dissent, Justice William J. Brennan Jr. noted

that DeFunis could conceivably not complete his
studies that quarter, and so the issue was not
necessarily moot. This suggests that the rules
governing mootness are a bit fuzzier than the
DeFunis majority opinion characterized them.
To see this possibility, consider another example:

Roe v. Wade (1973), in which the Court legalized
abortions performed during the first two trimesters
of pregnancy. Norma McCorvey, also known as Roe,
was pregnant when she filed suit in 1970, and by the
time the Court handed down the decision in 1973,
she had long since given birth and put her baby up
for adoption. But the justices did not declare this
case moot. Why not? What made Roe different from
DeFunis?
The justices provided two legal justifications. First,
DeFunis brought the litigation in his own behalf, but
Roe was a class action—a lawsuit brought by one or
more persons who represent themselves and all
others similarly situated. Second, DeFunis had been
admitted to law school, and he would “never again
be required to run the gauntlet.” Roe could become
pregnant again; that is, pregnancy is a situation
“capable of repetition, yet evading review.”72 Are
these reasonable points? Or is it possible, as some
suspect, that the Court developed them to avoid
particular legal issues? In either case, it is clear that
the exceptions the Court has carved out can make
mootness a rather fluid concept, open to
interpretation by different justices and Courts.
72 Providing another example is United States v.

Sanchez-Gomez (2018), in which criminal
defendants challenged a federal districtwide policy
permitting the use of full restraints—handcuffs
connected to a waist chain, with legs shackled—on
most in-custody defendants produced in court for
nonjury proceedings. A lower court held that the
policy was unconstitutional despite the fact that
underlying criminal cases ended because each pled
guilty to the offense for which they were charged.
The Supreme Court reversed on the ground that the
case was moot. In so doing, the justices rejected a
claim that the defendants could be subjected to the
restraint policy if they were rearrested. To the
justices the defendants are “able—and indeed
required by law”—to refrain from further criminal
conduct.
Ripeness.
Ripeness is the flip side of mootness. Whereas moot
cases are brought too late, “unripe” cases are those
that are brought too early. In other words, under
existing Court interpretation, a case is nonjusticiable
if the controversy is premature—has insufficiently
gelled—for review. United Public Workers v. Mitchell
(1947) is an often-cited example. In this case,
government workers challenged the Hatch Act of
1940, which prohibits some types of federal
employees from participating in political campaigns.
But only one of the appellants had actually violated
the act; the rest simply expressed an interest in
working on campaigns. According to the justices,
only the one employee had a ripe claim because “the
power of courts, and ultimately of this Court to pass
upon the constitutionality of acts of Congress arises
only when the interests of the litigants require the
use of this judicial authority for their protection
against actual interference. A hypothetical threat is
not enough. We can only speculate as to the kinds of
political activity the appellants desire to engage in.”
The justices echoed the sentiment of Mitchell in

International Longshoremen’s Union v. Boyd (1954).
This case involved a 1952 federal law mandating
that all aliens seeking admission into the United
States from Alaska be “examined” as if they were
entering from a foreign country. Believing that the
law might affect seasonal American laborers working
in Alaska temporarily, a union challenged the law.
Writing for the Court, Justice Frankfurter dismissed
the suit. In his view,
Appellants in effect asked [the Court] to rule that

a statute the sanctions of which had not been set
in motion against individuals on whose behalf
relief was sought, because an occasion for doing
so had not arisen, would not be applied to them
if in the future such a contingency should arise.
That is not a lawsuit to enforce a right; it is an
endeavor to obtain a court’s assurance that a
statute does not govern hypothetical situations
that may or may not make the challenged statute
applicable. Determination of the . . .
constitutionality of the legislation in advance of
its immediate adverse effect in the context of a
concrete case involves too remote and abstract
an inquiry for the proper exercise of the judicial
function.
In addition, the ripeness requirement mandates that

a party exhaust all available administrative and
lower court remedies before seeking review by the
Supreme Court. Until these opportunities have been
fully explored the case is not ready for the justices to
hear.
Political Questions.
When a dispute raises a “political question,” the
Court has said it will render it nonjusticiable. As
Chief Justice Marshall explained in Marbury v.
Madison,
The province of the court is, solely, to decide on

the rights of individuals, not to inquire how the
executive, or executive officers, perform duties
in which they have a discretion. Questions in
their nature political, or which are, by the
constitution and laws, submitted to the
executive, can never be made in this court.
In other words, the Court will not address questions

that “in their nature are political,” even if they
implicate the Constitution, because they are better
answered by elected branches of government.
But what exactly constitutes a political question?

The Court took its first stab at a definition in Luther
v. Borden (1849). This case has its origins in the
1840s, when some citizens of Rhode Island, led by
Thomas Wilson Dorr, tried to persuade the state
legislature to change suffrage requirements (which
mandated the ownership of property as a criterion
for voting) or to hold a convention for the purpose of
writing a constitution (which Rhode Island did not
have, as it was still operating under its royal charter
from King Charles II). When the government
rejected these proposals, these citizens wrote their
own constitution and created their own government.
Meanwhile, the existing government issued a
proclamation placing the entire state under martial
law, and the governor warned citizens not to support
the new constitution. He even contacted President
John Tyler for help in suppressing the rebellion,
sometimes called the “Dorr Rebellion.” Although
Tyler did not send in federal troops, he agreed to do
so if war broke out.
Eventually, the existing government managed to

suppress the rebels, but one of them, Martin Luther,
sued. Luther asserted that the Rhode Island Charter
violated Article IV, Section 4, of the U.S.
Constitution, which states, “The United States shall
guarantee to every State in the Union a Republican
Form of Government, and shall protect each of them
against Invasion; and on Application of the
Legislature or of the Executive (when the
Legislature cannot be convened) against Domestic
violence.” Luther asked the Court to declare the
charter government illegitimate and to supplant it
with the new constitution.
The Supreme Court, however, refused to go along

with Luther. Writing for the majority, Chief Justice
Taney held that the Court should avoid deciding any
question arising out of the guarantee clause because
such questions are inherently “political.” He based
the opinion largely on the words of Article IV, which
he believed governed relations between the states
and the federal government. As Taney put it,
Under this article of the Constitution, it rests

with Congress to decide what government is the
established one in a State. For as the United
States guarantee to each State a republican
government, Congress must necessarily decide
what government is established in the State
before it can determine whether it is republican
or not. . . . It is true that the contest in this case
did not last long enough to bring the matter to
this issue, and, as no senators or representatives
were elected under the authority of the
government of which Mr. Dorr was the head,
Congress was not called upon to decide the
controversy. Yet the right to decide is placed
there, and not in the courts.
For the next hundred years or so, the Court

maintained Taney’s position: any case involving the
guarantee clause was nonjusticiable. One hundred
years later, an issue came before the Court that
presented it with an opportunity to rethink Luther.
The issue was reapportionment, the way the states
draw their legislative districts. Initially, in the case of
Colegrove v. Green (1946) the Court held that the
entire matter presented a political question. Less
than two decades later, however, in Baker v. Carr
(1962), the Court held that reapportionment was a
justiciable issue. What brought about this change?
And, more relevant here, what meaning does Baker
have for the political question doctrine? In
particular, does it overrule Luther, or does it merely
change the interpretive context?
Baker v. Carr 369 U.S. 186 (1962)
court/369/186.html
Oral arguments are available at

https://www.oyez.org/cases/1960/6.
Vote: 6 (Black, Brennan, Clark, Douglas, Stewart,

Warren)
2 (Frankfurter, Harlan)
OPINION OF THE COURT: Brennan

CONCURRING OPINIONS: Clark, Douglas,
Stewart
DISSENTING OPINIONS: Frankfurter,
Harlan
NOT PARTICIPATING: Whittaker
Facts:
Under the U.S. Constitution, each state is allotted
a certain number of seats in the House of
Representatives based on the population of the
state. Once that number has been determined, it is
up to the state to map out the congressional
districts. Article I specifies,
Representatives . . . shall be apportioned
among the several States which may be
included within this Union, according to their
respective Numbers. . . . The actual
Enumeration shall be made within three Years
after the first Meeting of the Congress of the
United States, and within every subsequent
Term of ten Years, in such Manner as they
shall by Law direct. The Number of
Representatives shall not exceed one for every
thirty Thousand, but each State shall have at
Least one Representative.
Article I makes clear that a ten-year census

determines the number of representatives each
state receives. But no guidelines exist as to how
those representatives are to be allocated or
apportioned within a given state.
Some states redrew their congressional district

lines as population shifts occurred within them
around the middle of the twentieth century. The
new maps meant creating greater parity for urban
centers as citizens moved out of rural areas. Other
states, however, ignored the population shifts and
refused to reapportion seats. Over time, the
results of their failure to do so became readily
apparent. It was possible for two districts within
the same state, each electing one member to the
House, to have large differences in population.
Because malapportionment generally had the

greatest effect on urban voters, grossly
undervaluing their voting power, reform groups
representing the interests of these voters began to
bring litigation to force legislatures to
reapportion. In one of the most important of these
efforts, Colegrove v. Green (1946), they did so
under Article IV. They argued that the failure to
reapportion legislative districts deprived some
voters of their right to a republican form of
government. By way of proof, plaintiffs indicated
that a large statistical discrepancy existed
between the voting power of citizens in urban
areas and that of rural dwellers because the
Illinois legislature had not reapportioned since
1901. The state parties, on the other hand, asked
the court to dismiss the case on the ground that it
raised “only political issues.”
The Court agreed with the state. Writing for the

Court, Justice Frankfurter dismissed Colegrove on
the ground that legislative reapportionment within
states was left open by the Constitution. If the
Court intervened in this matter, it would be acting
in a way “hostile to a democratic system.” Put in
different terms, reapportionment constituted a
“political thicket” into which “courts ought not
enter.”
Figure 2-2 Maps of Districts in Tennessee, 1901

and 1950
Source: Equal Justice under Law
(Washington, DC: Foundation of the Federal
Bar Association, 1965), 108.
As a result of the Court’s decision in Colegrove,

states that had not reapportioned since 1900 were
under no federal constitutional mandate to do so,
and disparities between the voting power of urban
and rural citizens continued to grow. Figure 2-2
shows that a rural vote for the Tennessee
legislature counted nearly four times as much as
an urban vote.
Naturally, many citizens and organizations wanted
to force legislatures to reapportion, but under
Colegrove they could not do so using the
guarantee clause. They looked, therefore, to
another section of the Constitution, the
Fourteenth Amendment’s equal protection clause,
which says that no state shall “deny to any person
within its jurisdiction the equal protection of the
laws.” From this clause they made the argument
that the failure to reapportion led to unequal
treatment of voters.
Although this strategy represented a clever legal

attempt to reframe the issue of reapportionment,
when attorneys sought to apply it to the Tennessee
situation, a lower federal district court dismissed
their suit.73 Relying on Colegrove and other
cases, that court held reapportionment to
constitute a political question on which it could
not rule.
73 For more on this, see Richard C. Cortner,

“Strategies and Tactics of Litigants in
Constitutional Cases,” Journal of Public Law 17
(1968): 287–307; and Richard C. Cortner, The
Apportionment Cases (Knoxville: University of
Tennessee Press, 1970).
Arguments:
For the Appellants, Charles W. Baker et
al.:
This case is distinguishable from Colegrove
because in Colegrove the door to alternative
relief, including relief by Congress, appeared to
be open, whereas in this case, sixty years of
history have demonstrated that these
alternatives are not available to the appellants.
This case should not be considered a
nonjusticiable political question because there
is a clear, mathematical standard by which the
Court may determine whether appellants’
votes have been discriminated against.
Appellants have been denied the equal
protection of the laws because their votes have
been systematically discriminated against.
For the Appellees, Joe C. Carr,

Secretary of State, State of
Tennessee, et al.:
In the past, the Court has consistently stated
that enforcement of the guarantee of a
republican form of government is a political
question and does not fall within its
jurisdiction.
Under the constitution of Tennessee,
reapportionment has been specifically
designated to the legislature and not to the
courts.
Mr. Justice Brennan Delivered the Opinion of

the Court.
In holding that the subject matter of this suit was

not justiciable, the District Court relied on
Colegrove v. Green . . . [and related cases]. . . . We
understand the District Court to have read the
cited cases as compelling the conclusion that since
the appellants sought to have a legislative
apportionment held unconstitutional, their suit
presented a “political question” and was therefore
nonjusticiable. We hold that this challenge to an
apportionment presents no nonjusticiable
“political question.” The cited cases do not hold
the contrary.
Of course the mere fact that the suit seeks

protection of a political right does not mean it
presents a political question. Such an objection “is
little more than a play upon words.” Rather, it is
argued that apportionment cases, whatever the
actual wording of the complaint, can involve no
federal constitutional right except one resting on
the guaranty of a republican form of government,
and that complaints based on that clause have
been held to present political questions which are
nonjusticiable.
We hold that the claim pleaded here neither rests

upon nor implicates the Guaranty Clause and that
its justiciability is therefore not foreclosed by our
decisions of cases involving that clause. The
District Court misinterpreted Colegrove v. Green
and other decisions of this Court on which it
relied. . . . To show why we reject the argument
based on the Guaranty Clause, we must examine
the authorities under it. But because there
appears to be some uncertainty as to why those
cases did present political questions, and
specifically as to whether this apportionment case
is like those cases, we deem it necessary first to
consider the contours of the “political question”
doctrine. . . .
We have said that “In determining whether a

question falls within [the political question]
category, the appropriateness under our system of
government of attributing finality to the action of
the political departments and also the lack of
satisfactory criteria for a judicial determination
are dominant considerations.” The
nonjusticiability of a political question is primarily
a function of the separation of powers. Much
confusion results from the capacity of the
“political question” label to obscure the need for
case-by-case inquiry. Deciding whether a matter
has in any measure been committed by the
Constitution to another branch of government, or
whether the action of that branch exceeds
whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation,
and is a responsibility of this Court as ultimate
interpreter of the Constitution. To demonstrate
this requires no less than to analyze
representative cases and to infer from them the
analytical threads that make up the political
question doctrine. [N]one of those threads catches
this case.
Foreign relations: There are sweeping statements

to the effect that all questions touching foreign
relations are political questions. Not only does
resolution of such issues frequently turn on
standards that defy judicial application, or involve
the exercise of a discretion demonstrably
committed to the executive or legislature; but
many such questions uniquely demand single-
voiced statement of the Government’s views. Yet it
is error to suppose that every case or controversy
which touches foreign relations lies beyond
judicial cognizance. For example, [t]hough a court
will not undertake to construe a treaty in a
manner inconsistent with a subsequent federal
statute, no similar hesitancy obtains if the
asserted clash is with state law. . . .
Dates of duration of hostilities: Though it has been

stated broadly that “the power which declared the
necessity is the power to declare its cessation, and
what the cessation requires,” here too analysis
reveals isolable reasons for the presence of
political questions, underlying this Court’s refusal
to review the political departments’ determination
of when or whether a war has ended. Dominant is
the need for finality in the political determination,
for emergency’s nature demands “A prompt and
unhesitating obedience.” . . . But deference rests
on reason, not habit. The question in a particular
case may not seriously implicate considerations of
finality—e.g., a public program of importance
(rent control) yet not central to the emergency
effort. Further, clearly definable criteria for
decision may be available. In such case the
political question barrier falls away. . . .
Validity of enactments: In Coleman v. Miller [1939]

this Court held that the questions of how long a
proposed amendment to the Federal Constitution
remained open to ratification, and what effect a
prior rejection had on a subsequent ratification,
were committed to congressional resolution and
involved criteria of decision that necessarily
escaped the judicial grasp. Similar considerations
apply to the enacting process. . . . But it is not true
that courts will never delve into a legislature’s
records upon such a quest: if the enrolled statute
lacks an effective date, a court will not hesitate to
seek it in the legislative journals in order to
preserve the enactment.
The status of Indian tribes: This Court’s deference

to the political departments in determining
whether Indians are recognized as a tribe, while it
reflects familiar attributes of political questions,
also has a unique element in that the relation of
the Indians to the United States is marked by
peculiar and cardinal distinctions which exist no
where else. . . . [The Indians are] domestic
dependent nations . . . in a state of pupilage. . . .
Yet here, too, there is no blanket rule. While “It is

for [Congress] . . . and not for the courts, to
determine when the true interests of the Indian
require his release from [the] condition of
tutelage,” . . . it is not meant by this that Congress
may bring a community or body of people within
the range of this power by arbitrarily calling them
an Indian tribe. . . . Able to discern what is
“distinctly Indian,” the courts will strike down any
heedless extension of that label. They will not
stand impotent before an obvious instance of a
manifestly unauthorized exercise of power.
It is apparent that several formulations which vary

slightly according to the settings in which the
questions arise may describe a political question,
although each has one or more elements which
identify it as essentially a function of the
separation of powers. Prominent on the surface of
any case held to involve a political question is
found a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or a lack of judicially discoverable
and manageable standards for resolving it; or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on one
question.
Unless one of these formulations is inextricable

from the case at bar, there should be no dismissal
for nonjusticiability on the ground of a political
question’s presence. The doctrine of which we
treat is one of “political questions,” not one of
“political cases.” The courts cannot reject as “no
lawsuit” a bona fide controversy as to whether
some action denominated “political” exceeds
constitutional authority. The cases we have
reviewed show the necessity for discriminating
inquiry into the precise facts and posture of the
particular case, and the impossibility of resolution
by any semantic cataloguing.
But it is argued that this case shares the

characteristics of decisions that constitute a
category not yet considered, cases concerning the
Constitution’s guaranty, in Art. IV, §4, of a
republican form of government. A conclusion as to
whether the case at bar does present a political
question cannot be confidently reached until we
have considered those cases with special care. We
shall discover that Guaranty Clause claims involve
those elements which define a “political question,”
and for that reason and no other, they are
nonjusticiable. In particular, we shall discover that
the nonjusticiability of such claims has nothing to
do with their touching upon matters of state
governmental organization.
Republican form of government: . . . Clearly,

several factors were thought by the Court in
Luther [v. Borden] to make the question there
“political”: the commitment to the other branches
of the decision as to which is the lawful state
government; the unambiguous action by the
President, in recognizing the charter government
as the lawful authority; the need for finality in the
executive’s decision; and the lack of criteria by
which a court could determine which form of
government was republican.
But the only significance that Luther could have

for our immediate purposes is in its holding that
the Guaranty Clause is not a repository of
judicially manageable standards which a court
could utilize independently in order to identify a
State’s lawful government. The Court has since
refused to resort to the Guaranty Clause—which
alone had been invoked for the purpose—as the
source of a constitutional standard for invalidating
state action.
Just as the Court has consistently held that a

challenge to state action based on the Guaranty
Clause presents no justiciable question, so has it
held, and for the same reasons, that challenges to
congressional action on the ground of
inconsistency with that clause present no
justiciable question. . . .
We come, finally, to the ultimate inquiry whether

our precedents as to what constitutes a
nonjusticiable “political question” bring the case
before us under the umbrella of that doctrine. A
natural beginning is to note whether any of the
common characteristics which we have been able
to identify and label descriptively are present. We
find none: The question here is the consistency of
state action with the Federal Constitution. We
have no question decided, or to be decided, by a
political branch of government coequal with this
Court. Nor do we risk embarrassment of our
government abroad, or grave disturbance at home
if we take issue with Tennessee as to the
constitutionality of her action here challenged.
Nor need the appellants, in order to succeed in
this action, ask the Court to enter upon policy
determinations for which judicially manageable
standards are lacking. Judicial standards under
the Equal Protection Clause are well developed
and familiar, and it has been open to courts since
the enactment of the Fourteenth Amendment to
determine, if on the particular facts they must,
that a discrimination reflects no policy, but simply
arbitrary and capricious action.
This case does, in one sense, involve the allocation

of political power within a State, and the
appellants might conceivably have added a claim
under the Guaranty Clause. Of course, as we have
seen, any reliance on that clause would be futile.
But because any reliance on the Guaranty Clause
could not have succeeded it does not follow that
appellants may not be heard on the equal
protection claim which in fact they tender. True, it
must be clear that the Fourteenth Amendment
claim is not so enmeshed with those political
question elements which render Guaranty Clause
claims nonjusticiable as actually to present a
political question itself. But we have found that
not to be the case here. . . .
We conclude then that the nonjusticiability of

claims resting on the Guaranty Clause which
arises from their embodiment of questions that
were thought “political,” can have no bearing
upon the justiciability of the equal protection
claim presented in this case. Finally, we
emphasize that it is the involvement in Guaranty
Clause claims of the elements thought to define
“political questions,” and no other feature, which
could render them nonjusticiable. . . .
. . . [T]he complaint’s allegations of a denial of

equal protection present a justiciable
constitutional cause of action upon which
appellants are entitled to a trial and a decision.
The right asserted is within the reach of judicial
protection under the Fourteenth Amendment.
The judgment of the District Court is reversed and

the cause is remanded for further proceedings
consistent with this opinion.
Reversed and remanded.

MR. JUSTICE CLARK,
Concurring.
Although I find the Tennessee apportionment
statute offends the Equal Protection Clause, I
would not consider intervention by this Court into
so delicate a field if there were any other relief
available to the people of Tennessee. But the
majority of the people of Tennessee have no
“practical opportunities for exerting their political
weight at the polls” to correct the existing
“invidious discrimination.” Tennessee has no
initiative and referendum. I have searched
diligently for other “practical opportunities”
present under the law. I find none other than
through the federal courts. The majority of the
voters have been caught up in a legislative strait-
jacket. Tennessee has an “informed, civically
militant electorate” and “an aroused popular
conscience,” but it does not sear “the conscience
of the people’s representatives.” This is because
the legislative policy has riveted the present seats
in the Assembly to their respective constituencies,
and by the votes of their incumbents a
reapportionment of any kind is prevented. The
people have been rebuffed at the hands of the
Assembly; they have tried the constitutional
convention route, but since the call must originate
in the Assembly it, too, has been fruitless. They
have tried Tennessee courts with the same result,
and Governors have fought the tide only to
flounder. It is said that there is recourse in
Congress and perhaps that may be, but from a
practical standpoint this is without substance. To
date Congress has never undertaken such a task
in any State. We therefore must conclude that the
people of Tennessee are stymied and without
judicial intervention will be saddled with the
present discrimination in the affairs of their state
government.
MR. JUSTICE FRANKFURTER, whom MR.

JUSTICE HARLAN joins, dissenting.
The Court today reverses a uniform course of

decision established by a dozen cases, including
one by which the very claim now sustained was
unanimously rejected only five years ago. The
impressive body of rulings thus cast aside
reflected the equally uniform course of our
political history regarding the relationship
between population and legislative representation
—a wholly different matter from denial of the
franchise to individuals because of race, color,
religion or sex. . . . Disregard of inherent limits in
the effective exercise of the Court’s “judicial
Power” not only presages the futility of judicial
intervention in the essentially political conflict of
forces by which the relation between population
and representation has time out of mind been, and
now is, determined. It may well impair the Court’s
position as the ultimate organ of “the supreme
Law of the Land” in that vast range of legal
problems, often strongly entangled in popular
feeling, on which this Court must pronounce. The
Court’s authority—possessed of neither the purse
nor the sword—ultimately rests on sustained
public confidence in its moral sanction. Such
feeling must be nourished by the Court’s complete
detachment, in fact and in appearance, from
political entanglements and by abstention from
injecting itself into the clash of political forces in
political settlements. . . .
We were soothingly told at the bar of this Court

that we need not worry about the kind of remedy a
court could effectively fashion once the abstract
constitutional right to have courts pass on a
statewide system of electoral districting is
recognized as a matter of judicial rhetoric,
because legislatures would heed the Court’s
admonition. This is not only a euphoric hope. It
implies a sorry confession of judicial impotence in
place of a frank acknowledgment that there is not
under our Constitution a judicial remedy for every
political mischief, for every undesirable exercise
of legislative power. The Framers, carefully and
with deliberate forethought, refused so to
enthrone the judiciary. In this situation, as in
others of like nature, appeal for relief does not
belong here. Appeal must be to an informed,
civically militant electorate. In a democratic
society like ours, relief must come through an
aroused popular conscience that sears the
conscience of the people’s representatives. In any
event, there is nothing judicially more unseemly
nor more self-defeating than for this Court to . . .
to indulge in merely empty rhetoric, sounding a
word of promise to the ear sure to be
disappointing to the hope. . . .
The present case involves all of the elements that

have made the Guarantee Clause cases non-
justiciable. It is, in effect, a Guarantee Clause
claim masquerading under a different label. But it
cannot make the case more fit for judicial action
that appellants invoke the Fourteenth Amendment
rather than Art. IV, §4, where, in fact, the gist of
their complaint is the same. . . .
In invoking the Equal Protection Clause, they

assert that the distortion of representative
government complained of is produced by
systematic discrimination against them, by way of
“a debasement of their votes”. . . .
But they are permitted to vote and their votes are

counted. They go to the polls, they cast their
ballots, they send their representatives to the
state councils. Their complaint is simply that the
representatives are not sufficiently numerous or
powerful—in short, that Tennessee has adopted a
basis of representation with which they are
dissatisfied. Talk of “debasement” or “dilution” is
circular talk. One cannot speak of “debasement”
or “dilution” of the value of a vote until there is
first defined a standard of reference as to what a
vote should be worth. What is actually asked of
the Court in this case is to choose among
competing bases of representation—ultimately,
really, among competing theories of political
philosophy—in order to establish an appropriate
frame of government for the State of Tennessee
and thereby for all the States of the Union. . . .
Manifestly, the Equal Protection Clause supplies

no clearer guide for judicial examination of
apportionment methods than would the Guarantee
Clause itself. Apportionment, by its character, is a
subject of extraordinary complexity, involving—
even after the fundamental theoretical issues
concerning what is to be represented in a
representative legislature have been fought out or
compromised—considerations of geography,
demography, electoral convenience, economic and
social cohesions or divergencies among particular
local groups, communications, the practical effects
of political institutions like the lobby and the city
machine, ancient traditions and ties of settled
usage, respect for proven incumbents of long
experience and senior status, mathematical
mechanics, censuses compiling relevant data, and
a host of others. Legislative responses throughout
the country to the reapportionment demands of
the 1960 Census have glaringly confirmed that
these are not factors that lend themselves to
evaluations of a nature that are the staple of
judicial determinations or for which judges are
equipped to adjudicate by legal training or
experience or native wit. And this is the more so
true because in every strand of this complicated,
intricate web of values meet the contending forces
of partisan politics. The practical significance of
apportionment is that the next election results
may differ because of it. Apportionment battles
are overwhelmingly party or intra-party contests.
It will add a virulent source of friction and tension
in federal-state relations to embroil the federal
judiciary in them.
Baker v. Carr is important for a number of reasons.

First, it opened the window for judicial resolution of
reapportionment cases, which continue to appear on
the Court’s docket. Second, and more relevant here,
is that, unlike Luther, it established elements for
determining whether a dispute presented a political
question. As Justice Brennan wrote,
Prominent on the surface of any case held to

involve a political question is found [1] a
textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or [2] a lack of judicially
discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; or [4] the
impossibility of a court’s undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government; or [5] an unusual need for
unquestioning adherence to a political decision
already made; or [6] the potentiality of
embarrassment from multifarious
pronouncements by various departments on one
question.
As our numbering indicates, this definition contains

six characteristics, though they seem to fall under
two rubrics.74 First, the Court will look to the
Constitution to see if there is a “textually
demonstrable commitment” to another branch of
government. Second, the justices consider whether
particular questions should be left to another branch
of government as a matter of prudence. This is
where factors such as the lack of judicially
discoverable standards, embarrassment, and so on
come into play.
74 For another way to consider the Baker elements,

see Justice Sonia Sotomayor’s concurring opinion in
Zivotofsky v. Clinton (2012), in which she writes,
“[T]he Baker factors reflect three distinct
justifications for withholding judgment on the merits
of a dispute.” Sotomayor sees these as (1) textual
commitment (Baker element 1), (2) “decisionmaking
beyond courts’ competence” (Baker elements 2 and
3), and (3) prudential considerations (Baker
elements 4, 5, and 6).
Note, however, that the definition does not dismiss

the logic of Luther entirely; it just reworks it a bit.
More to the point, Justice Brennan quite clearly
states that claims invoking the guarantee clause
possess the attributes of a political question (under
his definition) and, therefore, are nonjusticiable.
But what else would fall under the definition?

Although some analysts claim that Baker
substantially weakened the political questions
doctrine—a claim we explore at the end of this
section—it did not lead to its complete demise. Over
the years, various justices have used the doctrine to
dismiss a range of substantive disputes, particularly
those involving international relations. In Goldwater
v. Carter (1979), which presented a challenge to
President Jimmy Carter’s unilateral termination of a
U.S. treaty with Taiwan, the Court issued a per
curiam remanding the case to the lower court with
directions to dismiss the complaint. Justice William
H. Rehnquist concurred in the judgment, writing for
himself and three others (Burger, Stewart, and
Stevens) that the case presented a political question.
In his view, it involved a foreign policy matter on
which the Constitution provided no definitive
answer. As such, it “should be left for resolution by
the Executive and Legislative branches.”
In Nixon v. United States (1993), however, the Court

relied heavily on Baker v. Carr to examine a
domestic issue—the impeachment of a federal judge
who claimed that the Senate used unconstitutional
procedures in trying his case. As you read Nixon,
take note of how the modern-day Court applied the
political question doctrine. Also consider the mode of
constitutional analysis it used; Chief Justice
Rehnquist’s opinion serves as an interesting example
of the Court searching for the plain “meaning of the
words” and the intent of the framers in interpreting
a constitutional provision, the Senate’s power to try
impeachments.
Nixon v. United States 506 U.S. 224 (1993)
court/506/224.html

Vote: 9 (Blackmun, Kennedy, O’Connor, Rehnquist,
Scalia, Souter, Stevens, Thomas, White)
OPINION OF THE COURT: Rehnquist

CONCURRING OPINIONS: Souter, Stevens,
White
Facts:
Walter L. Nixon Jr. was appointed a U.S. district
court judge for the Southern District of Mississippi
by President Lyndon Johnson in 1968. In 1984
federal prosecutors began to investigate Judge
Nixon’s relationship with Hattiesburg
entrepreneur Wiley Fairchild. They suspected that
Fairchild had allowed Nixon to participate in a
sweetheart oil and gas deal in return for Nixon’s
intervention in behalf of Fairchild’s son, Drew,
who was under state indictment for drug
trafficking. Nixon, testifying before a federal
grand jury, denied that he had discussed Drew
Fairchild’s case with the local district attorney or
had intervened in any other way in the young
man’s behalf. In 1986 Nixon stood trial in a
federal court for committing perjury in his grand
jury testimony and for accepting an illegal
gratuity. The jury acquitted Nixon of the illegal
gratuity charge but convicted him on two counts
of lying to the grand jury. He received a five-year
prison term. Nixon, asserting his innocence on all
charges, refused to resign from the bench and
continued to receive his salary while serving his
sentence.
U.S. district court judge Walter Nixon testifying
during his 1989 Senate impeachment trial.
AP Photo/Marcy Nighswander
The Judicial Conference of the United States, the

policy-making body of the federal judiciary,
recommended to the House of Representatives
that Nixon be impeached. Impeachment is the only
constitutionally permitted method of removing a
federal judge from office. Following an
investigation by the Judiciary Committee, the
House voted 417–0 to impeach Nixon for “high
crimes and misdemeanors.” The case then went to
the Senate for trial. That body invoked its own
rule, Impeachment Rule XI, under which the
presiding officer appoints a committee of senators
to “receive evidence and take testimony.” The
presiding officer appointed a special twelve-
member bipartisan committee to hear the case
and report to the full Senate.
As part of the deliberative process, the Senate

committee examined briefs submitted by Nixon
and the House impeachment managers, heard
from ten witnesses, and allowed Nixon to “make a
personal appeal.” After four days of hearings, the
committee recommended that Nixon be removed
from office. In November 1989 the Senate voted
89–8 and 78–19 to convict Nixon on two articles of
impeachment stemming from his grand jury
testimony. The conviction officially stripped Nixon
of his judgeship. By that time he had received an
estimated $286,500 in salary since his federal
court conviction.
Nixon responded by claiming in a federal lawsuit

that Senate Rule XI violated the Constitution. He
argued that the Senate procedure of having a
committee—rather than the full Senate—hear his
case violated Article I, Section 3, Clause 6, of the
Constitution, which states that the “Senate shall
have the sole power to try all Impeachments.” The
committee procedure, he alleged, prohibited the
full Senate from participating in the evidentiary
hearings. Unsuccessful in the lower courts, Nixon
pursued his case to the U.S. Supreme Court.
Arguments:
For the petitioner, Walter L. Nixon:
The words used in Article I, Section 3, of the
Constitution state that the Senate is to “try” an
impeachment “case” before senators who are
“present” and “sitting” on “oath.”
If the Senate is permitted to use whatever
rules it wishes in the impeachment of federal
judges, then there is no check on this power
and the legislature could very easily usurp
judicial power.
The word “sole” in Article I, Sec. 3, does not
preclude judicial review of Senate
impeachment procedures because the
insertion of the word was simply a cosmetic
edit by the Committee of Style.
For the respondents, United

States et al.:
The Constitution explicitly grants the Senate
“sole Power” over the trial of impeachments,
and therefore this case is not justiciable.
There is no evidence in either the words of the
Constitution or the Constitution’s drafting
history that would indicate the framers
intended to restrict how the Senate would
receive evidence.
Chief Justice Rehnquist Delivered the Opinion

of the Court.
Petitioner Walter L. Nixon, Jr., asks this Court to

decide whether Senate Rule XI, which allows a
committee of Senators to hear evidence against an
individual who has been impeached and to report
that evidence to the full Senate, violates the
Impeachment Trial Clause, Art. I, §3, cl. 6. That
Clause provides that the “Senate shall have the
sole power to try all Impeachments.” But before
we reach the merits of such a claim, we must
decide whether it is “justiciable,” that is whether
it is a claim that may be resolved by the courts.
We conclude that it is not. . . .
A controversy is nonjusticiable—i.e., involves a

political question—where there is a “textually
demonstrable constitutional commitment of the
issue to a coordinate political department; or a
lack of judicially discoverable and manageable
standards for resolving it. . . . ” Baker v. Carr
(1962). But the courts must, in the first instance,
interpret the text in question and determine
whether and to what extent the issue is textually
committed. As the discussion that follows makes
clear, the concept of a textual commitment to a
coordinate political department is not completely
separate from the concept of a lack of judicially
discoverable and manageable standards for
resolving it; the lack of judicially manageable
standards may strengthen the conclusion that
there is a textually demonstrable commitment to a
coordinate branch.
In this case, we must examine Art. I, §3, cl. 6, to

determine the scope of authority conferred upon
the Senate by the Framers regarding
impeachment.
The language and structure of this Clause are

revealing. [It grants] the Senate “the sole power
to try all Impeachments”. . . . [T]he word “sole”
indicates that this authority is reposed in the
Senate and nowhere else.
Petitioner argues that the word “try” . . . imposes

by implication an additional requirement on the
Senate in that the proceedings must be in the
nature of a judicial trial. From there petitioner
goes on to argue that this limitation precludes the
Senate from delegating to a select committee the
task of hearing the testimony of witnesses, as was
done pursuant to Senate Rule XI. “‘[T]ry’ means
more than simply ‘vote on’ or ‘review’ or ‘judge.’
In 1787 and today, trying a case means hearing
the evidence, not scanning a cold record.”
Petitioner concludes from this that courts may
review whether or not the Senate “tried” him
before convicting him.
There are several difficulties with this position

which lead us ultimately to reject it. The word
“try,” both in 1787 and later, has considerably
broader meanings than those to which petitioner
would limit it. Older dictionaries define try as “to
examine” or “to examine as a judge.” See 2 S.
Johnson, A Dictionary of the English Language
(1785). In more modern usage the term has
various meanings. For example, try can mean “to
examine or investigate judicially,” “to conduct the
trial of,” or “to put to the test by experiment,
investigation, or trial.” Webster’s Third New
International Dictionary (1971). Petitioner submits
that “try,” as contained in T. Sheridan, Dictionary
of the English Language (1796), means “to
examine as a judge; to bring before a judicial
tribunal.” Based on the variety of definitions,
however, we cannot say that the Framers used the
word “try” as an implied limitation on the method
by which the Senate might proceed in trying
impeachments. “As a rule the Constitution speaks
in general terms, leaving Congress to deal with
subsidiary matters of detail as the public interests
and changing conditions may require.”
The conclusion that the use of the word “try” . . .

lacks sufficient precision to afford any judicially
manageable standard of review of the Senate’s
actions is fortified by the existence of the three
very specific requirements that the Constitution
does impose on the Senate when trying
impeachments. [The last three sentences of Art. I,
§3, cl. 6 state that] the members must be under
oath, a two-thirds vote is required to convict, and
the Chief Justice presides when the President is
tried. These limitations are quite precise, and
their nature suggests that the Framers did not
intend to impose additional limitations on the form
of the Senate proceedings by the use of the word
“try” in the first sentence.
Petitioner devotes only two pages in his brief to

negating the significance of the word “sole” in . . .
Clause 6. As noted above, [the clause] provides
that “the Senate shall have the sole Power to try
all Impeachments.” We think that the word “sole”
is of considerable significance. Indeed, the word
“sole” appears only one other time in the
Constitution—with respect to the House of
Representatives’ “sole Power of Impeachment.”
Art. I, §2, cl. 5. The common sense meaning of the
word “sole” is that the Senate alone shall have
authority to determine whether an individual
should be acquitted or convicted. The dictionary
definition bears this out. “Sole” is defined as
“having no companion,” “solitary,” “being the only
one,” and “functioning . . . independently and
without assistance or interference.” Webster’s
Third New International Dictionary (1971). If the
courts may review the actions of the Senate in
order to determine whether that body “tried” an
impeached official, it is difficult to see how the
Senate would be “functioning . . . independently
and without assistance or interference.”
Nixon asserts that the word “sole” has no

substantive meaning. To support this contention,
he argues that the word is nothing more than a
mere “cosmetic edit” added by the Committee of
Style after the delegates had approved the
substance of the Impeachment Trial Clause. There
are two difficulties with this argument. First,
accepting as we must the proposition that the
Committee of Style had no authority from the
Convention to alter the meaning of the Clause, we
must presume that the Committee’s
reorganization or rephrasing accurately captured
what the Framers meant in their unadorned
language. . . . This presumption is buttressed by
the fact that the Constitutional Convention voted
on, and accepted, the Committee of Style’s
linguistic version. . . . Second, carrying Nixon’s
argument to its logical conclusion would constrain
us to say that the second to last draft would
govern in every instance where the Committee of
Style added an arguably substantive word. Such a
result is at odds with the fact that the Convention
passed the Committee’s version, and with the
well-established rule that the plain language of
the enacted text is the best indicator of intent. . . .
The history and contemporary understanding of
the impeachment provisions support our reading
of the constitutional language. The parties do not
offer evidence of a single word in the history of
the Constitutional Convention or in contemporary
commentary that even alludes to the possibility of
judicial review in the context of the impeachment
powers. This silence is quite meaningful in light of
the several explicit references to the availability of
judicial review as a check on the Legislature’s
power with respect to bills of attainder, ex post
facto laws, and statutes.
The Framers labored over the question of where

the impeachment power should lie. Significantly,
in at least two considered scenarios the power
was placed with the Federal Judiciary. Indeed,
Madison and the Committee of Detail proposed
that the Supreme Court should have the power to
determine impeachments. Despite these
proposals, the Convention ultimately decided that
the Senate would have “the sole Power to Try all
Impeachments.” Art. I, §3, cl. 6. According to
Alexander Hamilton, the Senate was the “most fit
depositary of this important trust” because its
members are representatives of the people. In
addition, the Framers believed the Court was too
small in number: “The awful discretion, which a
court of impeachments must necessarily have, to
doom to honor or to infamy the most confidential
and the most distinguished characters of the
community, forbids the commitment of the trust to
a small number of persons.”
There are two additional reasons why the

Judiciary, and the Supreme Court in particular,
were not chosen to have any role in
impeachments. First, the Framers recognized that
most likely there would be two sets of proceedings
for individuals who commit impeachable offenses
—the impeachment trial and a separate criminal
trial. In fact, the Constitution explicitly provides
for two separate proceedings. The Framers
deliberately separated the two forums to avoid
raising the specter of bias and to ensure
independent judgments. . . . Certainly judicial
review of the Senate’s “trial” would introduce the
same risk of bias as would participation in the trial
itself.
Second, judicial review would be inconsistent with

the Framers’ insistence that our system be one of
checks and balances. In our constitutional system,
impeachment was designed to be the only check
on the Judicial Branch by the Legislature. . . .
Judicial involvement in impeachment proceedings,
even if only for purposes of judicial review, is
counterintuitive because it would eviscerate the
“important constitutional check” placed on the
Judiciary by the Framers.
Nevertheless, Nixon argues that judicial review is

necessary in order to place a check on the
Legislature. Nixon fears that if the Senate is given
unreviewable authority to interpret the
Impeachment Trial Clause, there is a grave risk
that the Senate will usurp judicial power. The
Framers anticipated this objection and created
two constitutional safeguards to keep the Senate
in check. The first safeguard is that the whole of
the impeachment power is divided between the
two legislative bodies, with the House given the
right to accuse and the Senate given the right to
judge. This split of authority “avoids the
inconvenience of making the same persons both
accusers and judges. . . .” The second safeguard is
the two-thirds supermajority vote requirement.
Hamilton explained that “as the concurrence of
two-thirds of the senate will be requisite to a
condemnation, the security to innocence, from this
additional circumstance, will be as complete as
itself can desire.”
In addition to the textual commitment argument,

we are persuaded that the lack of finality and the
difficulty of fashioning relief counsel against
justiciability. See Baker v. Carr. We agree with the
Court of Appeals that opening the door of judicial
review to the procedures used by the Senate in
trying impeachments would “expose the political
life of the country to months, or perhaps years, of
chaos.” This lack of finality would manifest itself
most dramatically if the President were
impeached. The legitimacy of any successor, and
hence his effectiveness, would be impaired
severely, not merely while the judicial process was
running its course, but during any retrial that a
differently constituted Senate might conduct if its
first judgment of conviction were invalidated.
Equally uncertain is the question of what relief a
court may give other than simply setting aside the
judgment of conviction. Could it order the
reinstatement of a convicted federal judge, or
order Congress to create an additional judgeship
if the seat had been filled in the interim? . . .
We agree with Nixon that courts possess power to

review either legislative or executive action that
transgresses identifiable textual limits. . . . But we
conclude, after exercising that delicate
responsibility, that the word “try” in the
Impeachment Clause does not provide an
identifiable textual limit on the authority which is
committed to the Senate.
For the foregoing reasons, the judgment of the

Court of Appeals is
Affirmed.
JUSTICE SOUTER, Concurring

in the Judgment.
The Impeachment Trial Clause commits to the
Senate “the sole Power to try all Impeachments.” .
. . Other significant considerations confirm a
conclusion that this case presents a nonjusticiable
political question . . . As the Court observes,
judicial review of an impeachment trial would
under the best of circumstances entail significant
disruption of government.
One can, nevertheless, envision different and

unusual circumstances that might justify a more
searching review of impeachment proceedings. If
the Senate were to act in a manner seriously
threatening the integrity of its results, convicting,
say, upon a coin toss, or upon a summary
determination that an officer of the United States
was simply “‘a bad guy,’” judicial interference
might well be appropriate. In such circumstances,
the Senate’s action might be so far beyond the
scope of its constitutional authority, and the
consequent impact on the Republic so great, as to
merit a judicial response despite the prudential
concerns that would ordinarily counsel silence.
“The political question doctrine, a tool for
maintenance of governmental order, will not be so
applied as to promote only disorder.” Baker [v.
Carr].
JUSTICE WHITE, with whom

JUSTICE BLACKMUN Joins,
Concurring in the Judgment.
Petitioner contends that the method by which the
Senate convicted him on two articles of
impeachment violates Art. I, § 3, cl. 6, of the
Constitution, which mandates that the Senate
“try” impeachments. The Court is of the view that
the Constitution forbids us even to consider his
contention. I find no such prohibition and would
therefore reach the merits of the claim. I concur in
the judgment because the Senate fulfilled its
constitutional obligation to “try” petitioner. . . .
[T]he issue in the political question doctrine is not

whether the constitutional text commits exclusive
responsibility for a particular governmental
function to one of the political branches. There are
numerous instances of this sort of textual
commitment, e. g., Art. I, § 8, and it is not thought
that disputes implicating these provisions are
nonjusticiable. Rather, the issue is whether the
Constitution has given one of the political
branches final responsibility for interpreting the
scope and nature of such a power. . . .
The majority finds a clear textual commitment in
the Constitution’s use of the word “sole” in the
phrase “[t]he Senate shall have the sole Power to
try all Impeachments.” Art. I, § 3, cl. 6. It
attributes “considerable significance” to the fact
that this term appears in only one other passage
in the Constitution. See Art. I, § 2, cl. 5 (the House
of Representatives “shall have the sole Power of
Impeachment”). . . .
The significance of the Constitution’s use of the

term “sole” lies not in the infrequency with which
the term appears, but in the fact that it appears
exactly twice, in parallel provisions concerning
impeachment. That the word “sole” is found only
in the House and Senate Impeachment Clauses
demonstrates that its purpose is to emphasize the
distinct role of each in the impeachment process. .
. . While the majority is thus right to interpret the
term “sole” to indicate that the Senate ought to
“‘functio[n] independently and without assistance
or interference,’” it wrongly identifies the
Judiciary, rather than the House, as the source of
potential interference with which the Framers
were concerned when they employed the term
“sole.”
The majority also claims support in the history and

early interpretations of the Impeachment Clauses.
. . . In light of these materials, there can be little
doubt that the Framers came to the view at the
Convention that the trial of officials’ public
misdeeds should be conducted by representatives
of the people.
The majority’s review of the historical record thus
explains why the power to try impeachments
properly resides with the Senate. It does not
explain, however, the sweeping statement that the
Judiciary was “not chosen to have any role in
impeachments.” Not a single word in the historical
materials cited by the majority addresses judicial
review of the Impeachment Trial Clause. And a
glance at the arguments surrounding the
Impeachment Clauses negates the majority’s
attempt to infer nonjusticiability from the
Framers’ arguments in support of the Senate’s
power to try impeachments. . . .
The historical evidence reveals above all else that

the Framers were deeply concerned about placing
in any branch the “awful discretion” of
[impeachment]. . . . While the majority rejects
petitioner’s justiciability argument as espousing a
view “inconsistent with the Framers’ insistence
that our system be one of checks and balances,” it
is the Court’s finding of nonjusticiability that truly
upsets the Framers’ careful design. In a truly
balanced system, impeachments tried by the
Senate would serve as a means of controlling the
largely unaccountable Judiciary, even as judicial
review would ensure that the Senate adhered to a
minimal set of procedural standards in conducting
impeachment trials.
The majority also contends that the term “try”

does not present a judicially manageable
standard. . . . The majority’s conclusion that “try”
is incapable of meaningful judicial construction is
not without irony. One might think that, if any
class of concepts would fall within the definitional
abilities of the Judiciary, it would be that class
having to do with procedural justice.
Petitioner bears the rather substantial burden of

demonstrating that, simply by employing the word
“try,” the Constitution prohibits the Senate from
relying on a factfinding committee. It is clear that
the Framers were familiar with English
impeachment practice, and with that of the States
employing a variant of the English model at the
time of the Constitutional Convention. Hence,
there is little doubt that the term “try,” as used in
Art. I, 3, cl. 6, meant that the Senate should
conduct its proceedings in a manner somewhat
resembling a judicial proceeding. Indeed, it is safe
to assume that Senate trials were to follow the
practice in England and the States, which
contemplated a formal hearing on the charges, at
which the accused would be represented by
counsel, evidence would be presented, and the
accused would have the opportunity to be hear. . .
.
In short, the Impeachment Trial Clause was not

meant to bind the hands of the Senate beyond
establishing a set of minimal procedures. Without
identifying the exact contours of these procedures,
it is sufficient to say that the Senate’s use of a
factfinding committee under Rule XI is entirely
compatible with the Constitution’s command that
the Senate “try all impeachments.” Petitioner’s
challenge to his conviction must therefore fail.
Petitioner has not asked the Court to conduct his

impeachment trial; he has asked instead that it
determine whether his impeachment was tried by
the Senate. The majority refuses to reach this
determination out of a laudable desire to respect
the authority of the Legislature. Regrettably, this
concern is manifested in a manner that does
needless violence to the Constitution. The
deference that is owed can be found in the
Constitution itself, which provides the Senate
ample discretion to determine how best to try
impeachments.
The Court handed Judge Nixon a stinging defeat, and

his circumstances did not improve much after the
case (see Box 2-4). More generally, the Court ruled
that Congress’s procedures for impeachments are
not subject to judicial review because they meet both
prongs of the political questions doctrine: Article I of
the Constitution assigns the task of impeachment to
Congress, and judicial intrusion into impeachment
proceedings could create confusion. Imagine the
kinds of problems that would emerge if a U.S.
president could challenge his impeachment in the
federal courts. Would he still be president as his case
made its way through the courts, or would his
successor be the president? This is not a scenario for
which the Court wanted to take responsibility. Even
so, note Justice David Souter’s caveat: the Court
might not be so hesitant to review impeachment
procedures if they “[threatened] the integrity of [the
Senate’s] results.” But Justice John Paul Stevens, in a
brief concurring opinion, disagreed: “Respect for a
coordinate Branch of the Government forecloses any
assumption that improbable hypotheticals like those
mentioned by Justice Souter . . . will ever occur.”
Despite the ruling in Nixon, the political questions

doctrine remains controversial. Some scholars
applaud decisions such as Nixon and suggest that
the federal courts should continue to avoid cases
that raise political questions. Indeed, in the view of
these scholars, the Court does not make enough use
of the doctrine. By way of example, they point not
only to Baker but also to Bush v. Gore (2000)
(excerpted in Chapter 4), which they suggest the
Court should have dismissed as raising a political
question. To these observers, Bush is just the latest
in a line of cases beginning with Baker that signal a
“weakening of the traditional ‘political questions
doctrine’ and the expanded application of the equal
protection clause to voting rights and democratic
process.” They say that the public should regard
these cases as a dangerous trend on the Court’s part
—one reflecting “a broader conservative inclination
to impose order on democratic politics.”75
75 See Howard Gillman, The Votes That Counted

(Chicago: University of Chicago Press, 2001), 202.
Other analysts vehemently disagree. Although they

do not necessarily support the Court’s decision in
Bush v. Gore, they question any effort to revive a
strong political questions doctrine. They believe that
the Court has a responsibility to address
constitutional questions, and the failure to do so is
antithetical to Marbury v. Madison–type review.
Where the current Court will come down remains to

be seen, although Zivotofksy v. Clinton (2012) may
provide some clues. At issue in this case was a
dispute over whether the passport of a U.S. citizen
born in Jerusalem could list “Israel” as the country of
birth rather than “Jerusalem.” Under a State
Department policy of long standing the answer was
no, only Jerusalem could be listed, but under a
federal law the answer was yes. The district court
dismissed the case, holding that it presented a
nonjusticiable political question regarding
Jerusalem’s political status. The D.C. Circuit Court
affirmed, reasoning that Article II, which says that
the president “shall receive ambassadors and other
public ministers,” gives the executive the exclusive
power to recognize foreign sovereigns, and that the
exercise of that power cannot be reviewed by the
courts.
The Supreme Court disagreed. Writing for eight of

the nine justices (Breyer dissented), Chief Justice
Roberts had this to say:
In general, the Judiciary has a responsibility to

decide cases properly before it, even those it
“would gladly avoid.” Our precedents have
identified a narrow exception to that rule, known
as the “political question” doctrine. [In a]
controversy [that] involves a political question . .
. we have held that a court lacks the authority to
decide the dispute before it. . . .
The federal courts are not being asked to

supplant a foreign policy decision of the political
branches with the courts’ own unmoored
determination of what United States policy
toward Jerusalem should be. Instead, Zivotofsky
requests that the courts enforce a specific
statutory right. To resolve his claim, the
Judiciary must decide if Zivotofsky’s
interpretation of the statute is correct, and
whether the statute is constitutional. This is a
familiar judicial exercise.
Box 2-4 Aftermath . . . Walter Nixon
IN MARCH 1986 federal district court judge

Walter L. Nixon Jr. was convicted of two counts of
perjury for lying to a grand jury. He was sentenced
to five years in prison. When his last appeal
proved unsuccessful, Nixon entered a federal
minimum security prison at Eglin Air Force Base
in Florida. He served sixteen months before being
released to a New Orleans halfway house in July
1989. Four months later, just eighteen days after
the Senate removed him from office, Nixon was
released on five years’ probation.
Nixon had not heard any cases since his
indictment in 1985 but, proclaiming his innocence,
refused to resign from office. From 1985 until his
removal by the Senate in 1989, Nixon was paid his
$89,500 annual salary, even though he spent part
of that time in a federal prison. The removal
formally ended his tenure as a federal judge and
terminated his salary. At about the same time, the
Mississippi Supreme Court disbarred Nixon, so he
could no longer practice law.
In 1990 Mississippi wildlife officials discovered

Nixon and a former game warden in a field that
was baited to attract wild turkeys. In Nixon’s
possession was a 12-gauge automatic shotgun.
Nixon was charged with conspiracy to hunt wild
birds with the aid of bait, a misdemeanor. More
serious was his possession of a firearm, which
violated the terms of his parole. The U.S. Parole
Commission ordered Nixon to return to prison for
four months; the punishment was relatively light
because the shotgun had never been taken out of
its zipped case.
Nixon’s efforts to return to the practice of law

were ultimately successful. In May 1993 the
Mississippi Supreme Court considered Nixon’s
petition to be reinstated to the bar. The state bar
association opposed the request, arguing that
Nixon lacked the required moral character to
practice law. A parade of public officials, including
three former governors and three former state
supreme court justices, urged the court to be
lenient. The justices agreed to reactivate Nixon’s
license to practice law once he passed the state
bar examination. Chief Justice Armis Hawkins
said, “This petitioner has been whipped enough.”
Nixon passed and was readmitted to the practice
of law in September 1993.
Sources: Los Angeles Times, May 21, 1993;

Memphis Commercial Appeal, October 3, 1990;
New York Times, April 28, 1990, September 26,
1993; Washington Post, February 7, 1986;
Washington Times, November 22, 1989; various
United Press International reports.
Finding that the case did not present a political

question, the Court sent the case back to the court of
appeals to resolve the dispute.76 Do you agree with
the Court’s rationale? Does Zivotofsky sit
comfortably with Baker and Nixon?
76 After the court of appeals ruled against

Zivotofsky, the case came back to the Supreme
Court. It affirmed the lower court in Zivotofsky v.
Kerry (2015) (excerpted in Chapter 5).
Standing to Sue
Another constraint on federal judicial power is the
requirement that the party bringing a lawsuit have
standing to sue: if the party bringing the litigation is
not the appropriate party, the courts will not resolve
the dispute. Put in somewhat different terms, “not
every person with the money to bring a lawsuit is
entitled to litigate the legality or constitutionality of
government action in the federal courts.”77
According to the Court’s interpretation of Article III,
standing requires (1) that the party must have
suffered a concrete injury or be in imminent danger
of suffering such a loss, (2) that the injury must be
“fairly traceable” to the challenged action of the
defendant (usually the government in constitutional
cases), and (3) that the party must show that a
favorable court decision is likely to provide
redress.78 In general these three elements are
designed, as Justice Brennan noted in Baker, “to
assure . . . concrete adverseness which sharpens the
presentation of issues upon which the Court so
largely depends for illumination of difficult
constitutional questions.”
77 C. Herman Pritchett, The American Constitution

(New York: McGraw-Hill, 1959), 145.
78 See Lujan v. Defenders of Wildlife (1992),

which lays out these three elements.
In many disputes, the litigants have little difficulty

meeting the standing requirements mandated by
Article III. A citizen who has been denied the right to
vote on the basis of race, a criminal defendant
sentenced to death, and a church member jailed for
religious proselytizing would have sufficient
standing to challenge the federal or state laws that
may have deprived them of their rights. But what
about parties who wish to challenge a government
action on the ground that they are taxpayers? Such
claims raise an important question: Does the mere
fact that one pays taxes provide a sufficient basis for
standing?
In general, the answer is no. In addition to the three

constitutionally derived requirements, the Court has
articulated several prudential considerations to
govern standing. These do not strictly follow from
Article III but rather from the Court’s own view of
the prudent administration of justice. Among the
most prominent are those that limit—but do not
absolutely prohibit, as we shall see—generalized
grievance suits. In these suits, the parties do not
have an injury that affects them in a “personal and
individual way.” Rather they have a “generally
available grievance about government,” with the
only harm being to their—and every other citizen’s—
interest in applying appropriately the laws and
constitution.79 As such, should they win their case,
they benefit no more directly or tangibly than all
other citizens.
79 Hollingsworth v. Perry (2013).
These general grievance suits come in several forms.

Let’s consider two: (1) taxpayer suits, which are
brought by parties whose only injury is that they do
not want the government to spend tax money in a
particular way, and what we call (2) government-
induced suits, which arise when legislators who
voted against a law challenge its constitutionality or
when the executive branch will not defend a law
because it thinks the law violates the Constitution.
Taxpayer Suits.
The Court first addressed taxpayer suits in
Frothingham v. Mellon (1923). At issue was the
Sheppard-Towner Maternity Act of 1921, in which
Congress provided federal aid to the states to fund
programs designed to reduce infant mortality rates.
Although many progressive groups had lobbied for
the law, other organizations viewed it as an
unconstitutional intrusion into the family and into
the rights of states, as they believed the Tenth
Amendment of the Constitution guaranteed. They
decided to challenge it and enlisted one among their
ranks, Harriet Frothingham, to serve as a plaintiff.
She was not receiving Sheppard-Towner Maternity
Act aid; she was a taxpayer who did not want to see
her tax dollars spent on the program. Her attorneys
argued that she had sufficient grounds to bring suit.
The Court did not agree, holding that Frothingham

lacked standing to bring the litigation. Justice
George Sutherland wrote for the majority:
If one taxpayer may champion and litigate such a

cause, then every other taxpayer may do the
same, not only in respect of the statute here
under review but also in respect of every other
appropriation act and statute whose
administration requires the outlay of public
money, and whose validity may be questioned.
The bare suggestion of such a result, with its
attendant inconveniences, goes far to sustain the
conclusion which we have reached, that a suit of
this character cannot be maintained.
He also outlined an approach to standing:
The party . . . must be able to show not only that

the statute is invalid but that he has sustained or
is immediately in danger of sustaining some
direct injury as the result of its enforcement, and
not merely that he suffers in some indefinite way
in common with people generally.
For the next forty years, Frothingham served as a

major bar to taxpayer suits. Unless litigants could
demonstrate that a government program injured
them or threatened to do so—beyond the mere
expenditure of tax dollars—they could not bring suit.
In Flast v. Cohen, however, the Court relaxed that
rule. Why? With what did the Court replace it?
Flast v. Cohen 392 U.S. 83 (1968)
court/392/83.html

Vote: 8 (Black, Brennan, Douglas, Fortas,
Marshall, Stewart, Warren, White)
1 (Harlan)
OPINION OF THE COURT: Warren

CONCURRING OPINIONS: Douglas, Fortas,
Stewart
DISSENTING OPINION: Harlan
Facts:
Seven taxpayers sought to challenge federal
expenditures made under the Elementary and
Secondary Education Act of 1965. Under this law,
states could apply to the federal government for
grants to assist in the education of children from
low-income families. They could, for example,
obtain funds for the acquisition of textbooks,
school library materials, and so forth. The
taxpayers alleged that some of the funds
disbursed under this act were used to finance
“instruction in reading, arithmetic, and other
subjects and for guidance in religious and
sectarian schools.” Such expenditures, they
argued, violated the First Amendment’s
prohibition on religious establishment.
A three-judge district court dismissed their

complaint. It reasoned that because the plaintiffs
had suffered no real injury and because their only
claim of standing rested “solely on their status as
federal taxpayers,” they failed to meet the criteria
established in Frothingham.
Arguments:
For the appellants, Florence Flast et al.:
The Court’s precedent in Frothingham does not

establish an absolute bar against taxpayers
bringing suit concerning a federal expenditure.
The factors that led to judicial restraint in
Frothingham have no relevance to a suit
brought under the First Amendment, as this
one is.
For the appellees, Wilbur

Cohen, secretary of Health,
Education, and Welfare et al.:
The case or controversy limitation of Article III
requires that the Court uphold the principle
that a federal taxpayer qua taxpayer, such as
the appellant in this case, lacks standing to
challenge specific expenditures of federal
revenues.
Mr. Chief Justice Warren Delivered the

Opinion of the Court.
The “gist of the question of standing” is whether

the party seeking relief has “alleged such a
personal stake in the outcome of the controversy
as to assure that concrete adverseness which
sharpens the presentation of issues upon which
the court so largely depends for illumination of
difficult constitutional questions.” Baker v. Carr
(1962). In other words, when standing is placed in
issue in a case, the question is whether the person
whose standing is challenged is a proper party to
request an adjudication of a particular issue and
not whether the issue itself is justiciable. . . .
A taxpayer may or may not have the requisite

personal stake in the outcome, depending upon
the circumstances of the particular case.
Therefore, we find no absolute bar in Article III to
suits by federal taxpayers challenging allegedly
unconstitutional federal taxing and spending
programs. There remains, however, the problem of
determining the circumstances under which a
federal taxpayer will be deemed to have the
personal stake and interest that impart the
necessary concrete adverseness to such litigation
so that standing can be conferred on the taxpayer
qua taxpayer consistent with the constitutional
limitations of Article III.
. . . [It] is not relevant that the substantive issues

in the litigation might be nonjusticiable. However .
. . it is both appropriate and necessary to look to
the substantive issues for another purpose,
namely, to determine whether there is a logical
nexus between the status asserted and the claim
sought to be adjudicated. . . .
The nexus demanded of federal taxpayers has two

aspects to it. First, the taxpayer must establish a
logical link between that status and the type of
legislative enactment attacked. Thus, a taxpayer
will be a proper party to allege the
unconstitutionality only of exercises of
congressional power under the taxing and
spending clause of Art. I, §8, of the Constitution. It
will not be sufficient to allege an incidental
expenditure of tax funds in the administration of
an essentially regulatory statute. . . . Secondly, the
taxpayer must establish a nexus between that
status and the precise nature of the constitutional
infringement alleged. Under this requirement, the
taxpayer must show that the challenged
enactment exceeds specific constitutional
limitations imposed upon the exercise of the
congressional taxing and spending power and not
simply that the enactment is generally beyond the
powers delegated to Congress by Art. I, §8. When
both nexuses are established, the litigant will have
shown a taxpayer’s stake in the outcome of the
controversy and will be a proper and appropriate
party to invoke a federal court’s jurisdiction.
The taxpayer-appellants in this case have satisfied

both nexuses to support their claim of standing
under the test we announce today. Their
constitutional challenge is made to an exercise by
Congress of its power under Art. I, §8, to spend for
the general welfare, and the challenged program
involves a substantial expenditure of federal tax
funds. In addition, appellants have alleged that the
challenged expenditures violate the Establishment
and Free Exercise Clauses of the First
Amendment. Our history vividly illustrates that
one of the specific evils feared by those who
drafted the Establishment Clause and fought for
its adoption was that the taxing and spending
power would be used to favor one religion over
another or to support religion in general. The
concern was quite clearly that religious liberty
ultimately would be the victim if government
could employ its taxing and spending powers to
aid one religion over another or to aid religion in
general. The Establishment Clause was designed
as a specific bulwark against such potential
abuses of governmental power. . . .
The allegations of the taxpayer in Frothingham v.

Mellon were quite different from those made in
this case, and the result in Frothingham is
consistent with the test of taxpayer standing
announced today. The taxpayer in Frothingham
attacked a federal spending program and she,
therefore, established the first nexus required.
However, she lacked standing because her
constitutional attack was not based on an
allegation that Congress, in enacting the
Maternity Act of 1921, had breached a specific
limitation upon its taxing and spending power. . . .
In essence, Mrs. Frothingham was attempting to
assert the States’ interest in their legislative
prerogatives and not a federal taxpayer’s interest
in being free of taxing and spending in
contravention of specific constitutional limitations
imposed upon Congress’ taxing and spending
power.
We have noted that the Establishment Clause of

the First Amendment does specifically limit the
taxing and spending power conferred by Art. I, §8.
Whether the Constitution contains other specific
limitations can be determined only in the context
of future cases. However, whenever such specific
limitations are found, we believe a taxpayer will
have a clear stake as a taxpayer in assuring that
they are not breached by Congress. Consequently,
we hold that a taxpayer will have standing
consistent with Article III to invoke federal judicial
power when he alleges that congressional action
under the taxing and spending clause is in
derogation of those constitutional provisions
which operate to restrict the exercise of the taxing
and spending power. The taxpayer’s allegation in
such cases would be that his tax money is being
extracted and spent in violation of specific
constitutional protections against such abuses of
legislative power. . . .
While we express no view at all on the merits of

appellants’ claims in this case, their complaint
contains sufficient allegations under the criteria
we have outlined to give them standing to invoke a
federal court’s jurisdiction for an adjudication on
the merits.
Reversed.
Mr. Justice Harlan, dissenting.

The nub of my view is that the end result of
Frothingham v. Mellon was correct, even though .
. . I do not subscribe to all of its reasoning and
premises. Although I therefore agree with certain
of the conclusions reached today by the Court, I
cannot accept the standing doctrine that it
substitutes for Frothingham. . . .
It seems to me clear that public actions, whatever

the constitutional provisions on which they are
premised, may involve important hazards for the
continued effectiveness of the federal judiciary.
Although I believe such actions to be within the
jurisdiction conferred upon the federal courts by
Article III of the Constitution, there surely can be
little doubt that they strain the judicial function
and press to the limit judicial authority. There is
every reason to fear that unrestricted public
actions might well alter the allocation of authority
among the three branches of the Federal
Government. It is not, I submit, enough to say that
the present members of the Court would not seize
these opportunities for abuse, for such actions
would, even without conscious abuse, go far
toward the final transformation of this Court into
the Council of Revision which, despite Madison’s
support, was rejected by the Constitutional
Convention. . . . We must as judges recall that, as
Mr. Justice Holmes wisely observed, the other
branches of the Government “are ultimate
guardians of the liberties and welfare of the
people in quite as great a degree as the courts.”
The powers of the federal judiciary will be
adequate for the great burdens placed upon them
only if they are employed prudently, with
recognition of the strengths as well as the hazards
that go with our kind of representative
government.
Flast did not overrule Frothingham. In fact, the

Court was careful to indicate that had the 1968
ruling been applied to Frothingham, the plaintiff still
would have been unable to attain standing. But Flast
substantially revised the 1923 precedent. If
taxpayers could identify a logical link between their
status and the legislation, and one between their
status and a specific constitutional infringement,
then they might have standing.
Flast symbolized what was at that time a general

trend toward lowering barriers to access to federal
courts. Twenty-two years earlier, Congress had
passed the Administrative Procedure Act of 1946,
which, among other things, provided that any person
“suffering legal wrong because of agency action, or
adversely affected or aggrieved within the meaning
of a relevant statute, is entitled to judicial review
thereof.”
But the days of easing standing requirements in

taxpayer suits have apparently come to an end.
Beginning in the mid-1970s and extending through
today, the justices have restored strict standing
requirements and limited access to federal courts.
They have read Flast rather narrowly, restricting its
reach to precisely the kind of suit at issue there—a
challenge to the use of federal funds allegedly in
violation of the First Amendment’s ban of the
government’s establishment of religion. The Roberts
Court’s decision in Hein v. Freedom from Religion
Foundation (2007) supplies an example. During the
George W. Bush administration, the Freedom from
Religion Foundation brought this establishment
clause suit to challenge activities associated with the
White House Office of Faith-Based and Community
Initiatives. It claimed it had standing because its
individual members were federal taxpayers opposed
to executive branch use of congressional
appropriations for activities that allegedly promoted
religious community groups over secular
organizations. The Supreme Court disagreed.
Because these were executive branch programs,
they did not meet the Flast standard. More broadly,
Justice Samuel Alito noted in his judgment for the
Court, “the payment of taxes is generally not enough
to establish standing to challenge an action taken by
the Federal Government.” Flast, Alito wrote, was “a
narrow exception.” Such a reading led some scholars
to assert that Court doctrine governing standing now
resembles Frothingham rather than Flast. At the
least, Justice Scalia suggested in a concurring
opinion (joined by Thomas) in Hein, the Court’s
decision was inconsistent with Flast:
Today’s opinion is, in one significant respect,

entirely consistent with our previous cases
addressing taxpayer standing to raise
Establishment Clause challenges to government
expenditures. Unfortunately, the consistency lies
in the creation of utterly meaningless
distinctions which separate the case at hand
from the precedents that have come out
differently, but which cannot possibly be (in any
sane world) the reason it comes out differently. If
this Court is to decide cases by rule of law rather
than show of hands, we must surrender to logic
and choose sides: Either Flast v. Cohen (1968)
should be applied to (at a minimum) all
challenges to the governmental expenditure of
general tax revenues in a manner alleged to
violate a constitutional provision specifically
limiting the taxing and spending power, or Flast
should be repudiated. For me, the choice is easy.
Flast is wholly irreconcilable with the Article III
restrictions on federal-court jurisdiction that this
Court has repeatedly confirmed are embodied in
the doctrine of standing.
Government-Based Suits.
Whether this and other Roberts Court decisions
leave Flast on life support, we leave for you to
determine.80 What does seem to be true is that
standing, like the other “constraints” on judicial
power—jurisdiction and justiciability—is open to
interpretation. This applies to taxpayer suits such as
Hein but also holds for government-induced suits
that raise standing questions.
80 See, for example, Arizona Christian School

Tuition Organization v. Winn (2011). The Court
held that taxpayers lacked standing to challenge the
use of tax credits to fund religious schools because
the state’s decision not to collect taxes created no
nexus between the dissenting taxpayer and the
religious establishment. Differentiating this case
from Flast, the Court held that the state does not
“extract and spend” the funds, rather the money
goes directly from an individual to the schools. The
dissent, written by Justice Kagan, expressed concern
that the “novel distinction in standing law between
appropriation and tax expenditure” threatened to
eliminate all opportunities for taxpayers to challenge
governmental financial support of religious
institutions.
To see this, let’s consider two situations under which

these suits can arise. In the first, legislators who
voted against a law bring suit to challenge the law’s
constitutionality. This occurred in Raines v. Byrd
(1997), involving the constitutionality of the Line
Item Veto Act of 1996, which gave the president the
ability to cancel certain tax and spending benefits
after they were signed into law. Before the justices
could decide whether the law was constitutional,
they had to decide whether the six members of
Congress—all opponents of the law—who had
brought the suit had standing to challenge it.
Writing for the majority, Chief Justice Rehnquist

concluded that they did not: The individual members
of Congress “have alleged no injury to themselves as
individuals [and] the institutional injury they allege
is wholly abstract and widely dispersed. We . . . note
that our conclusion neither deprives Members of
Congress of an adequate remedy (since they may
repeal the Act or exempt appropriations bills from its
reach), nor forecloses the Act from constitutional
challenge (by someone who suffers judicially
cognizable injury as a result of the Act).”
In a dissenting opinion, Justice Stevens took issue
with Rehnquist’s conclusion:
The Line Item Veto Act purports to establish a

procedure for the creation of laws that are
truncated versions of bills that have been passed
by the Congress and presented to the President
for signature. If the procedure were valid, it
would deny every Senator and every
Representative any opportunity to vote for or
against the truncated measure that survives the
exercise of the President’s cancellation authority.
Because the opportunity to cast such votes is a
right guaranteed by the text of the Constitution,
I think it clear that the persons who are deprived
of that right by the Act have standing to
challenge its constitutionality.
A year later, in Clinton v. City of New York (1998),

the justices found that parties who had been affected
when President Clinton exercised the line-item veto
did have standing to challenge the act and decided
the case on its merits (excerpted in Chapter 4). But
the very fact that these justices, in Raines, could
reach such different conclusions underscores the
notion that standing—like justiciability and
jurisdiction—may be more fluid than it appears and
than the Court sometimes lets on.
The same holds for a second type of government-
induced suit, which occurs when the executive
branch declines to defend a law because it believes
the law is unconstitutional. The question these cases
raise is whether anyone else can represent the
government.
Providing an example is Hollingsworth v. Perry

(2013). Hollingsworth involved Proposition 8, a
ballot initiative that amended the California
Constitution to provide that “only marriage between
a man and a woman is valid or recognized in
California.” After a district court judge declared
Proposition 8 unconstitutional, California officials
decided not to take the case to the court of appeals,
but the initiative’s official “proponents” did.
Before the court of appeals decided the case, it

certified a question to the California Supreme Court:
whether official proponents of a ballot initiative have
authority to assert the state’s interest in defending
the constitutionality of the initiative when public
officials refuse to do so. The California Supreme
Court responded yes in part because “the official
proponents of the initiative are authorized under
California law to appear and assert the state’s
interest in the initiative’s validity and to appeal a
judgment invalidating the measure when the public
officials who ordinarily defend the measure or
appeal such a judgment decline to do so.” Relying on
the state supreme court’s answer, the court of
appeals concluded that the official proponents had
standing under federal law to defend the
constitutionality of Proposition 8.
The U.S. Supreme Court disagreed. Writing for a

five-person majority, Chief Justice Roberts wrote:
To have standing, a litigant must seek relief for

an injury that affects him in a “personal and
individual way.” He must possess a “direct stake
in the outcome” of the case. Here, however,
petitioners had no “direct stake” in the outcome
of their appeal. Their only interest in having the
District Court order reversed was to vindicate
the constitutional validity of a generally
applicable California law.
We have repeatedly held that such a

“generalized grievance,” no matter how sincere,
is insufficient to confer standing.
The chief justice was unimpressed with proponents’

argument that California law gave them a “‘unique,’
‘special,’ and ‘distinct’ role in the initiative process—
one ‘involving both authority and responsibilities
that differ from other supporters of the measure.’”
“True enough,” Roberts said, but “once Proposition 8
was approved by the voters, the measure became ‘a
duly enacted constitutional amendment or statute.’
Petitioners have no role—special or otherwise—in
the enforcement of Proposition 8. They therefore
have no ‘personal stake’ in defending its
enforcement that is distinguishable from the general
interest of every citizen of California.”
Republican state senator Dennis Hollingsworth, who

defended the constitutionality of California
Proposition 8 under which the state recognized as
legally valid only marriages between one woman and
one man.
Max Whittaker/Getty Images
Sandy Stier (left) and Kris Perry, who challenged the

constitutionality of California’s ban on same-sex
marriage.
AP Photo/Jeff Chiu
Writing for the four dissenters, Justice Anthony
Kennedy contended that the majority’s reasoning
failed to account for the “fundamental principles or
the practical dynamics of the initiative system in
California, which uses this mechanism to control and
to bypass public officials—the same officials who
would not defend the initiative, an injury the Court
now leaves unremedied.”
The short-term impact of Perry was that it did not

resolve one of the biggest constitutional questions in
recent memory—whether states can prohibit the
marriage of same-sex couples—because the
appealing party lacked standing. (Two years later
the Court did answer the question in Obergefell v.
Hodges, in which it invalidated bans on same-sex
marriage.) In the longer term, the divergent opinions
in Perry show that standing doctrine continues to
remain open to interpretation.81 The very fact that
the majority and dissenting justices in Perry could
reach such different conclusions again shores up a
theme we have emphasized throughout: although
Article III places certain limits on the power of the
federal judiciary, its language is vague enough to
allow for a good deal of judicial latitude.
81 On the same day the Court denied standing to the

proponents of Proposition 8, the Court issued an
opinion in United States v. Windsor (2013).
Windsor involved the constitutionality of a section of
the Defense of Marriage Act (DOMA), which defined
marriage as between a man and a woman for
purposes of federal law. There the Court too
confronted questions of standing: Because the
Obama administration refused to defend the law’s
constitutionality, did the Bipartisan Legal Advisory
Group (BLAG), a formal group within the House of
Representatives, have standing to defend the law’s
constitutionality when it is the responsibility of the
executive branch to do so? Without deciding whether
BLAG had standing, the majority allowed the suit to
proceed to its merits in part because the Obama
administration was still enforcing the law (even
though it would not defend its constitutionality). The
Court also noted that “if the Executive’s agreement
with a plaintiff that a law is unconstitutional is
enough to preclude judicial review,” it would
“undermine” the clear dictate of the separation of
powers principle that “when an Act of Congress is
alleged to conflict with the Constitution, ‘[i]t is
emphatically the province and duty of the judicial
department to say what the law is.’” Marbury v.
Madison. The four dissenters took issue with these
reasons. As Justice Alito wrote, “The United States
clearly is not a proper petitioner in this case. The
United States does not ask us to overturn the
judgment of the court below or to alter that
judgment in any way. Quite to the contrary, the
United States argues emphatically in favor of the
correctness of that judgment. We have never before
reviewed a decision at the sole behest of a party that
took such a position, and to do so would be to render
an advisory opinion, in violation of Article III’s
dictates.”
Constraints on Judicial Power
and the Separation of Powers
System
The jurisdiction, justiciability, and standing
requirements place considerable constraints on the
exercise of judicial power. Yet it is important to note
that these doctrines largely come from the Court’s
own interpretation of Article III and its view of the
proper role of the judiciary. In other words, the
constraints are largely self-imposed. In Ashwander v.
Tennessee Valley Authority (1936), Justice Louis D.
Brandeis took the opportunity in a concurring
opinion to provide a summary of the principles of
judicial self-restraint as they pertain to constitutional
interpretation (see Box 2-5). His goal was to
delineate a set of rules that the Court should follow
to avoid unnecessarily reaching decisions on the
constitutionality of laws. In the course of outlining
these “avoidance principles,” he considered many of
the constraints on judicial decision making we have
reviewed in this section. More to the point, these
“Ashwander Principles” serve as perhaps the best
single statement of how the Court limits its own
powers—and especially its exercise of judicial
review.
Given the cases and materials you have just read, we

wonder whether you think these are substantial
constraints on the Court. Either way, it would be a
mistake to conclude that the use of judicial power is
limited only by self-imposed constraints. Rather,
members of the executive and legislative branches
also have expectations concerning the appropriate
limits of judicial authority. If the justices are
perceived as exceeding their role by failing to
restrain the use of their own powers, a reaction from
the political branches may occur.
What forms might such a reaction take? First, the

other branches of government could attempt to alter
constitutional policy established by the Court.
Although the Rehnquist Court shut down efforts to
do so through simple legislation—for example, City
of Boerne v. Flores (1997)—the other branches can
propose constitutional amendments to overturn
Court decisions. This constraint on the Court is
especially effective because once an amendment is
part of the Constitution, it is “constitutional,” and
the justices are bound by it. By the same token, once
the amendment process is set in motion, the Court
has been reluctant to interfere.
Consider Coleman v. Miller (1939), a case to which

Justice Brennan made specific reference in his Baker
opinion. In Coleman the Court considered the
actions of the Kansas legislature over the child labor
amendment. Proposed by Congress in 1924, the
amendment stated, “The Congress shall have power
to limit, regulate, and prohibit the labor of persons
under eighteen years of age.” In January 1925
Kansas legislators voted to reject the amendment.
The issue arose again when the state senate
reconsidered the amendment in January 1937. At
that time the legislative body split, 20–20, with the
lieutenant governor casting the decisive vote in favor
of it. Members of the Kansas legislature (mostly
those who had voted no) challenged the 1937 vote
on two grounds: they questioned the ability of the
lieutenant governor to break the tie and, more
generally, the reconsideration of an amendment that
previously had been rejected. Writing for the Court,
Chief Justice Charles Evans Hughes refused to
address these points. Rather, he asserted that the
suit raised a political question. In his words, “the
ultimate authority” over the amendment process was
Congress, not the Court.
It is worth reiterating that Congress does not often

propose constitutional amendments or even
legislation to override the Court. Only four times has
Congress succeeded in overriding the Court with a
constitutional amendment, and attempts to overrule
by simple legislation may be equally rare.82 And
when the legislature attempts to direct the justices
on how to adjudicate constitutional cases, they may
decline to do so—as the majority’s reaction in
Boerne indicates. The more general point, however,
is this: because Congress has, in the past,
overridden the Court, there is no reason for justices
to believe that the legislature would not do so in the
future. This threat may be sufficient to constrain the
justices, even in constitutional disputes.
82 But see James Meernik and Joseph Ignagni,
“Judicial Review and Coordinate Construction of the
Constitution,” American Journal of Political Science
41 (1997): 447–467. They state, “Congress often
does reverse Supreme Court [constitutional]
rulings.” They claim that of the 569 cases in which
the Court rendered unconstitutional a federal law, a
state law, or executive order, Congress made 125
attempts to override by constitutional amendment or
by statute. Of these, Congress succeeded in
reversing the Court in 41. But it is uncertain
whether Congress was attempting a reinterpretation
of the Constitution, as it did in the Religious
Freedom of Restoration Act, or trying to correct a
constitutional defect identified by the Court.
Second, the elected branches possess various

weapons that they could use to punish the Court.
Congress can hold judicial salaries constant,
impeach justices, change the size of the Court, and
make “exceptions” to the Court’s appellate
jurisdiction. And these weapons can have an effect
on the doctrine the Court produces. To see this
point, we need only reconsider Ex parte McCardle.
Perhaps to protect the Court’s institutional
legitimacy, the justices chose not to rule the way
they really wanted—in favor of McCardle. Instead,
they dismissed the suit, thereby lending credence to
the notion that Congress can remove the Court’s
appellate jurisdiction as it deems necessary. In
Hamdan v. Rumsfeld (2006), however, a modern-
day incarnation of McCardle, the justices proclaimed
the jurisdictional question a nonissue: despite the
president’s arguments to the contrary, the majority
claimed that Congress had not engaged in
jurisdiction stripping, at least not over pending
cases.
Box 2-5 Justice Brandeis, Concurring in

Ashwander v. Tennessee Valley Authority
IN 1936 Justice Louis D. Brandeis delineated, in a

concurring opinion in Ashwander v. Tennessee
Valley Authority, a set of Court-formulated rules to
avoid unnecessarily reaching decisions on the
constitutionality of laws. A portion of his opinion
setting forth those rules, minus case citations and
footnotes, follows:
The Court developed, for its own governance

in the cases confessedly within its jurisdiction,
a series of rules under which it has avoided
passing upon a large part of all the
constitutional questions pressed upon it for
decision. They are:
1. The Court will not pass upon the

constitutionality of legislation in a friendly,
non-adversary, proceeding, declining because
to decide such questions “is legitimate only in
the last resort, and as a necessity in the
determination of real, earnest and vital
controversy between individuals. It never was
the thought that, by means of a friendly suit, a
party beaten in the legislature could transfer to
the courts an inquiry as to the constitutionality
of the legislative act.”
2. The Court will not “anticipate a question of
constitutional law in advance of the necessity
of deciding it.” “It is not the habit of the Court
to decide questions of a constitutional nature
unless absolutely necessary to a decision of
the case.”
3. The Court will not “formulate a rule of
constitutional law broader than is required by
the precise facts to which it is to be applied.”
4. The Court will not pass upon a constitutional
question although properly presented by the
record, if there is also present some other
ground upon which the case may be disposed
of. This rule has found most varied application.
Thus, if a case can be decided on either of two
grounds, one involving a constitutional
question, the other a question of statutory
construction or general law, the Court will
decide only the latter. Appeals from the highest
court of a state challenging its decision of a
question under the Federal Constitution are
frequently dismissed because the judgment
can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a
statute upon complaint of one who fails to
show that he is injured by its operation. Among
the many applications of this rule, none is
more striking than the denial of the right of
challenge to one who lacks a personal or
property right. Thus, the challenge by a public
official interested only in the performance of
his official duty will not be entertained. . . .
6. “The Court will not pass upon the
constitutionality of a statute at the instance of
one who has availed himself of its benefits.”
7. “When the validity of an act of the Congress is
drawn in question, and even if a serious doubt
of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain
whether a construction of the statute is fairly
possible by which the question may be
avoided.”
The mere existence of these congressional weapons,

however, may serve to constrain policy-oriented
justices from acting on their preferences. In
Marbury v. Madison, Chief Justice Marshall—himself
an Adams appointee—must have wanted to give
Marbury his appointment. But, at the same time,
Marshall was well aware of the serious
repercussions of ordering the administration to do
so. Jefferson made no secret of his disdain for
Marshall, and with impeachment of the chief justice
a distinct possibility in the president’s (and
Marshall’s) mind, Marshall was confronted with a
dilemma: vote his sincere political preferences and
risk the institutional integrity of the Court (not to
mention his own job), or act in a sophisticated
fashion with regard to his political preferences
(refuse to give Marbury his commission) and elevate
judicial supremacy (establish judicial review) in a
way that Jefferson could accept. Perhaps not so
surprisingly, Marshall chose the latter course of
action.
Finally, government actors can refuse, implicitly or
explicitly, to implement particular constitutional
decisions, thereby decreasing the Court’s ability to
create efficacious policy. Immigration and
Naturalization Service v. Chadha, which we
discussed at the beginning of this chapter, provides a
case in point. Theoretically speaking, Chadha
nullified on constitutional grounds the practice of
legislative vetoes—that is, congressional rejection of
policies produced by executive agencies. In practice,
however, Congress allows committees to veto agency
requests to move funds from one program to
another. Some commentators consider this a type of
legislative veto because Congress is taking action
without presenting a bill to the president. The
problem with Chadha, so it seems, was that the
Court fashioned a rule that was “unacceptable” to
the other branches of government and, as a result,
one that has been “eroded by open defiance and
subtle evasion.”83 Why the Court would establish
such an inefficacious rule is open to speculation, but
the relevant point is simple enough: once the Court
reached its decision, it had to depend on Congress to
implement it. Because Congress failed to do so, the
Court was unable to set long-term policy.
83 Fisher, “The Legislative Veto,” 288.
In sum, Article III is not the only source of constraint

on the Court’s power. The justices are fully aware
that the president and Congress have the ability to
impose such checks, and on occasion they may
exercise their powers with at least some
consideration of how other government actors may
respond. Therefore, constraints on judicial power
emanate not only from Article III and the Court’s
interpretation of it, but also from the constitutional
separation of powers—a system giving each
governmental branch a role in keeping the other
branches within their legitimate bounds.
Annotated Readings
For studies of judicial power, consult the citations in
the footnotes in this chapter. Here we wish only to
highlight several interesting books that explore the
development of judicial power and how the Court
interprets (or should interpret) its powers in Article
III, along with the role the Court plays (or should
play) in American society. These books include
Alexander M. Bickel, The Least Dangerous Branch
(New York: Bobbs-Merrill, 1962); Jesse H. Choper,
Judicial Review and the National Political Process
(Chicago: University of Chicago Press, 1980); Justin
Crowe, Building the Judiciary: Law, Courts, and the
Politics of Institutional Development (Princeton, NJ:
Princeton University Press, 2012); John Hart Ely,
Democracy and Distrust (Cambridge, MA: Harvard
University Press, 1980); Thomas M. Franck, Political
Questions/Judicial Answers: Does the Rule of Law
Apply in Foreign Affairs? (Princeton, NJ: Princeton
University Press, 2009); Scott Douglas Gerber, A
Distinct Judicial Power: The Origins of an
Independent Judiciary (New York: Oxford University
Press, 2011); Larry D. Kramer, The People
Themselves: Popular Constitutionalism and Judicial
Review (New York: Oxford University Press, 2004);
William Lasser, The Limits of Judicial Power (Chapel
Hill: University of North Carolina Press, 1988);
Philippa Strum, The Supreme Court and Political
Questions (Tuscaloosa: University of Alabama Press,
1974); and Cass R. Sunstein, One Case at a Time:
Judicial Minimalism on the Supreme Court
To greater and lesser extents, these works cover

Marbury v. Madison. Books more explicitly about the
case include Robert Lowry Clinton, Marbury v.
Madison and Judicial Review (Lawrence: University
Press of Kansas, 1989); William E. Nelson, Marbury
v. Madison: The Origins and Legacy of Judicial
Review (Lawrence: University Press of Kansas,
2000); and Cliff Sloan and David McKean, The Great
Decision: Jefferson, Adams, Marshall, and the Battle
for the Supreme Court (New York: Public Affairs,
2009).
Chapter Three The
Legislature
ARTICLE I of the U.S. Constitution is its longest and

most explicit. The founders spelled out in great
detail the powers Congress did and did not have
over its own operations and its authority to make
laws. Reading through Article I, we might conclude
that it could not be the source of much litigation.
After all, given its specificity, how much room for
interpretation could there be?
For cases involving Congress’s authority over its

internal affairs, this assumption would be accurate.
The Supreme Court has heard relatively few cases
touching on the first seven sections of Article I,
which deal with the various qualifications for
membership in Congress, the ability of the chambers
to punish members, and certain privileges enjoyed
by the members. On the relatively few of those on
which the Court has ruled, it generally, though not
always, has given the legislature wide latitude over
its own business.
That assumption, however, is incorrect when we

consider cases that deal directly with Congress’s
most basic power, the enactment of laws, and with
its position in American government. Article I,
Section 8, enumerates specifically the substantive
areas in which Congress may legislate. But is it too
specific, failing to foresee how congressional powers
might need to be exercised in areas it does not
cover? Section 8 provides Congress with the power
to borrow and coin money, but not with the authority
to make paper money for the payment of debts.
Since 1792, congressional committees have held
investigations and hearings, but no clause in Section
8 authorizes them to do so. In general, the Supreme
Court has had to determine whether legislative
action that is not explicitly covered in Article I falls
within Congress’s authority, and that is why the
Court so often has examined statutes passed by
Congress.
There is another reason. As we saw earlier, and as

we shall see throughout this book, basic (and
purposeful) tensions were built into the design of the
government. Disputes occur between the branches
of the federal government, between the federal
government and the states, and between
governments and individuals. Arising from the basic
principles underlying the structure of government—
federalism, the separation of powers, and checks and
balances—these conflicts have provided the stuff of
myriad legal disputes, and the Court has been right
in the middle of many of them.
This chapter examines how the justices have

interpreted Article I of the Constitution.1 It is
divided into four sections: the first provides a
historical overview of Article I, the second explores
cases involving Congress’s authority over its own
structure and operations, and the third looks at the
sources and scope of its lawmaking power. We end
with a discussion of a topic that has generated
considerable debate in recent years: constitutional
deliberations within the federal legislature.
1 We focus generally in this chapter on the scope of

Article I and related issues. In Chapter 5 we
consider the distribution of power between the
legislative and executive branches.
Article I: Historical Overview

Many issues led the colonists in America to rebel
against England. An important one, sometimes
neglected in treatments of the American Revolution,
was the different ways the British and the colonists
thought about legislative bodies such as Parliament.
The British viewed legislatures as “deliberative
bodies whose allegiance was to the nation rather
than specific constituencies.”2 Underlying this view
is the notion of “virtual” representation: “since the
interests of all British citizens were represented in
Parliament, the citizens themselves did not need to
be.” Therefore, the British reasoned, it was
unnecessary for the colonists to vote for members of
Parliament because they were “virtually
represented” within it. The Americans took quite a
different stance. To them, legislators “were nothing
more and nothing less than agents of their
constituents.” As John Adams wrote in 1776, the
ideal legislature “should be in miniature an exact
portrait of the people at large. It should think, feel,
reason and act like them.”
2 We adopt the discussion in this paragraph from

Farber and Sherry, A History of the American
Constitution, 153–157.
During the founding period, the American states

created legislatures that reflected some of Adams’s
views of representation. Most states provided for
short terms of office, with elections typically
occurring every other year. They also mandated that
legislatures have open sessions and publish their
proceedings. Finally, many states actually gave their
inhabitants the right to “instruct” their
representatives on how to vote on certain issues.
These and other measures were designed to keep
legislators responsive to their constituents. Concerns
about representation at the federal level also were
present, as were suspicions about a national
government that would be as powerful as England’s.
The unicameral Congress created by the Articles of
Confederation had few important powers, and many
of those it had it could not exercise without state
compliance, which it seldom received (see Figure I-
1).
The problems Congress and the nation faced under

the Articles of Confederation made it clear to the
delegates attending the Constitutional Convention of
1787 that a very different kind of legislature was
necessary if the United States was to endure. But
what form would that legislature take? And what
powers would it have? These questions produced a
great deal of discussion during the convention; in
fact, debates over the structure and powers of
Congress occupied more than half of the framers’
time.
Structure and Composition of

Congress
The Virginia Plan set the tone for the Constitutional
Convention and became the backbone for Article I.
Essentially, the plan called for a bicameral
legislature, with the number of representatives in
each house apportioned on the basis of state
population. Under this scheme, the lower house
(now the House of Representatives) would be elected
by the people; the upper house (the Senate) would
be chosen by the lower house based on
recommendations from state legislatures.
The framers dealt with two aspects of the Virginia

Plan with relative ease. Almost all agreed on the
need for a bicameral legislature. Accord on this point
was not surprising: by 1787 only four states had one-
house legislatures. The plan for selecting the upper
house provoked more discussion. Some thought that
having the lower house elect the upper would make
the Senate subservient to the House and upset the
delicate checks-and-balances system. Instead, the
delegates agreed that state legislatures should
select the senators. (The Seventeenth Amendment to
the Constitution, ratified in 1913, changed the
method of selection; senators, like representatives,
are now elected by the people.)
The third aspect of the Virginia Plan—the

composition of the houses of Congress—generated
some of the most acrimonious debates of the
convention. As historians Alfred Kelly, Winfred
Harbison, and Herman Belz put it,
Would the constituent units be the states,

represented equally by delegates chosen by state
legislatures, as the small-state group desired? Or
would the constituent element be the people of
the United States . . . with representation in both
chambers apportioned according to population,
as the large-state group wished?3
3 Alfred H. Kelly, Winfred A. Harbison, and Herman

Belz, The American Constitution: Its Origins and
Development, 7th ed. (New York: W. W. Norton,
1991), 90.
On one level, the answer to this question implicated

the straightforward motivation of self-interest.
Naturally, the large states wanted both chambers to
be based on population because they would send
more representatives to the new Congress. The
smaller states thought all states should have equal
representation in both houses and regarded their
plan as the only way to avoid tyranny by the
majority. On another level, the issue of composition
went to the core of the Philadelphia enterprise. The
approach advocated by the small states would
signify the importance of the states in the new
system of government, while that put forth in the
Virginia Plan would suggest that the federal
government received its power directly from the
people rather than from the states and was truly
independent of the states.
It is no wonder, then, that the delegates had so much

trouble resolving this issue: it defined the basic
character of the new government. In the end they
took the course of action that characterized many of
their decisions—they agreed to disagree.
Specifically, the delegates reached a compromise
under which the House of Representatives would be
constituted on the basis of population, and the
Senate would have two delegates from each state.
Reaching this compromise was crucial to the success

of the convention. Without it, the delegates may have
disbanded without framing a constitution. But
because the founders split the difference between
the demands of the small and large states, they
never fully dealt with the critical underlying issue:
Do the people or the states empower the federal
government? We address the impact of this lingering
question on the development of the country in
Chapter 6. Here, we note that this question not only
has been at the center of many disputes brought to
the Supreme Court but also was a leading cause of
the Civil War.
This compromise has also led to more specific

controversies, centering on the very nature of
representation. We know that in drafting Article I the
framers agreed that representation in the House of
Representatives would be based on population. Each
state was allotted at least one representative, with
additional seats based on the number of persons
residing within the state’s boundaries. The exact
number of representatives per state was to be
determined by a census of the population (beginning
within three years of the First Congress and
continuing at intervals of every ten years thereafter)
and calculated by adding the number of “free
persons” and “three-fifths of all other persons”
(read: slaves). Passage of the Fourteenth
Amendment changed this formula so that black
people would be fully counted, and in 1911 and
again in 1929 Congress set the size of the House at
435 members, where it remains today. But even
these steps did not end debates over representation.
As late as 1992 the state of Montana sued, arguing
that the formula Congress used to calculate
representation unfairly denied it an additional
representative.4 Moreover, recall from the
discussion of Baker v. Carr (1962) in Chapter 2 that
as population shifts occurred within states in the
middle of the twentieth century, some states redrew
their congressional district lines. For most, the new
maps meant creating greater parity for urban
centers as citizens moved out of rural areas. Other
states, however, ignored these shifts and refused to
reapportion seats. Over time, their failure meant
that within a given state it was possible for two
districts with large differences in population each to
elect one member to the House. Beginning with
Baker, the Court heard a series of challenges to
legislative malapportionment, eventually creating
the “one person, one vote” principle, which holds
that “as nearly as is practicable one man’s vote in a
congressional election is to be worth as much as
another’s.”5
4 Department of Commerce v. Montana (1992).
5 Wesberry v. Sanders (1964).
With the articulation of this principle, the Court

settled some controversies: so long as the one
person, one vote principle is observed, the Supreme
Court generally has allowed states freedom in
constructing representational districts for members
of the House of Representatives. But other
controversies arose with time, in particular
regarding the extent to which states may or should
take race into account when they reapportion their
districts. According to some analysts, creating
districts with high concentrations of minority voters
is the only way to increase minority representation
in Congress. Others, including some civil rights
advocates, have criticized such efforts, arguing that
they do not offer real opportunities for increased
minority representation. Even if the numbers of
minority representatives grew to approximate the
proportions of their respective minority groups in
the general population, the argument goes, these
representatives would still be too small in number to
have any real clout in the legislature. These critics
claim that only through changes in representational
and institutional rules can minorities achieve
political influence at the national level.6 What is
beyond debate is that the number of minority
members of the House remains relatively small.
6 The Court has wrestled with the constitutional

propriety of states purposefully drawing legislative
district lines to ensure representation for minorities.
During the 1970s and 1980s the Court gave
considerable leeway to state legislatures to take race
into account. In the 1990s, however, the Court
changed course sharply. In a series of cases, the
justices ruled that the Constitution is violated when
district lines are explainable only in terms of race
and when racial factors clearly dominate more-
traditional districting criteria. For a full discussion of
this issue, see Lee Epstein and Thomas G. Walker,
Constitutional Law for a Changing America: Rights,
Liberties, and Justice, 10th ed. (Thousand Oaks, CA:
CQ Press, 2019), chap. 14.
Powers of Congress
With the possible exceptions of reapportionment and
term limits for members of Congress, which we
cover later in the chapter, Americans today rarely
debate issues concerning the structure and
composition of Congress: most of us simply accept
the arrangements outlined in the Constitution.
Instead, we tend to concern ourselves with what
Congress does or does not do, with its ability to
change our lives—sometimes dramatically—through
the exercise of its lawmaking powers. Should
Congress increase taxes? Provide aid for the
homeless? Authorize military action? Such questions
—not structural points—generate heated debate
among Americans.
In 1787 the situation was reversed. The framers

argued over the makeup of the legislature but
generally agreed about the particular powers it
would have. This consensus probably reflected their
experience under the Articles of Confederation:
severe economic problems due in no small part, as
the framers knew, to “congressional impotence.”7
7 Farber and Sherry, A History of the American

Constitution, 189.
To correct these problems, Article I, Section 8, lists

seventeen specific powers the delegates gave to
Congress—six of which relate to the economy.
Consider the problem of funding the government.
Under the Articles of Confederation the legislature
could not collect taxes from the people; instead, it
had to rely on the less-than-dependable states to
collect and forward taxes (from 1781 through 1783,
the legislature requested $10 million from the states
but received less than $2 million). In response, the
first power given to Congress in the newly minted
Constitution was to “lay and collect taxes.” In
addition to the six specific powers dealing with
economic issues, Section 8 gives Congress some
authority over foreign relations, the military, and
internal matters such as the establishment of post
offices.
The framers obviously agreed that Congress should

have these powers, but two others provoked
controversy. The first concerned a proposal in the
Virginia Plan to give Congress veto authority over
state legislation. This idea had the strong support of
James Madison, who argued, “[T]he propensity of
the States to pursue their particular interests in
opposition to the general interest . . . will continue to
disturb the system, unless effectually controuled.”
Madison and others who supported the veto proposal
were once again reacting to the problems with the
Articles of Confederation. Because the federal
government lacked coercive power over the states,
cooperation among them was virtually nonexistent.
They engaged in practices that hurt one another
economically and, in general, acted more like
thirteen separate countries than a union or even a
confederation. But the majority of delegates thought
that a congressional veto would “disgust all the
States.” Accordingly, they compromised with Article
VI, the supremacy clause, which made the
Constitution, U.S. laws, and treaties “the supreme
law of the land,” binding all judges in all the states
to follow them.
The second source of controversy was over this

question: Would Congress be able to exercise powers
that were not listed in Article I, Section 8, or was it
limited to those explicitly enumerated? Some
analysts would argue that the last clause of Article I,
Section 8, the necessary and proper clause,
addressed this question by granting Congress the
power “[t]o make all Laws which shall be necessary
and proper for carrying into Execution the foregoing
Powers.” But is that interpretation correct? Even
after they agreed on the wording of that clause (with
little debate), the delegates continued to debate the
issue. Delegate James McHenry of Maryland wrote
about a conversation that occurred on September 6:
“Spoke to Gov. Morris Fitzsimmons . . . to insert a
power . . . enabling the legislature to erect piers for
protection of shipping in winter. . . . Mr. Gov.: thinks
it may be done under the words of [Article I]—‘and
provide for the common defense and general
welfare.’”8 In other words, Fitzsimmons was arguing
that one of Congress’s enumerated powers (to
provide for the common defense and general
welfare) implied the power to erect piers. Under this
argument, then, Congress could assert powers
connected to, but beyond, those that were
enumerated.
Because questions concerning the sources of

congressional power and the role of the necessary
and proper clause in particular are central to an
understanding of the role Congress plays in
American society, we shall return to them. At this
point, however, we consider the Court’s
interpretation of the first parts of Article I, which lay
out the structure of Congress and its authority over
its own affairs.
Congressional Authority over

Internal Affairs: Institutional
Independence and Integrity
While the framers were debating Congress’s
structure and composition, they were also thinking
about ways to safeguard the independence and
integrity of the institution. Included in Article I are
provisions dealing with the ability of the chambers to
control who joins them and to punish those who do
not behave in accord with their norms. Another
section, the speech or debate clause, protects
members from “harassment” by other institutions.
Would the Supreme Court interpret these provisions

broadly, to give members of Congress a good deal of
leeway, or more narrowly? One way to begin
thinking about this question is to consider an
interesting connection between the Court and
Congress. Although we often conceptualize them as
wholly separate entities, almost half the Court’s
members have had prior state or federal legislative
experience, as Table 3-1 shows. From this, we might
think that those justices would empathize with the
claims of Congress regarding the need for authority
over its own affairs; indeed, the Court generally has
acceded to legislative wishes—but not always. As
you read what follows, think about the reasons the
Court offers for its decisions. Furthermore, take note
of the various coalitions that have emerged on
different Courts. Have the justices with legislative
experience exhibited a greater willingness to defer
to Congress than those without this experience?
Finally, note that appointing former legislators is
mostly a phenomenon of the eighteenth and
nineteenth centuries; the most recent justice who
had served as a legislator was Sandra Day O’Connor
(appointed in 1981). Do you detect a change in
deference to Congress as the number of former
legislators on the Court has dwindled? Or is there
little connection between legislative experience and
judicial rulings?
Table 3-1
Source: U.S. Supreme Court Justices Database,

http://epstein.wustl.edu/research/justicesdata.html.
Note: State names indicate service in the legislature of
the state. We count justices only once even if they had
been appointed twice (as associate and chief).
Membership in Congress:
Seating and Discipline
In addition to specifying the structure and
composition of Congress, Article I contains the
requirements that must be met by all prospective
members of the institution:
A senator must be at least thirty years old and

have been a citizen of the United States not less
than nine years (Section 3, Clause 3).
A representative must be at least twenty-five
years old and have been a citizen not less than
seven years (Section 2, Clause 2).
Every member of Congress must be, when
elected, an inhabitant of the state that he or she
is to represent (Section 2, Clause 2; and Section
3, Clause 3).
No one may be a member of Congress who holds
any other “Office under the Authority of the
United States” (Section 6, Clause 2).
Finally, Section 3 of the Fourteenth Amendment

states that no person may be a senator or a
representative who, having previously taken an oath
as a member of Congress to support the
Constitution, has engaged in rebellion against the
United States or given aid or comfort to its enemies,
unless Congress has removed such restriction by a
two-thirds vote of both houses.
With only a few exceptions, these standards have not

caused much controversy or litigation. Nor has there
been much debate over whether Congress can
censure or expel sitting members. The second
paragraph of Article I, Section 5, is clear on this
point: “Each House may determine the Rules of its
Proceedings, punish its Members for disorderly
Behaviour, and, with the Concurrence of two thirds,
expel a member.” The Court has not dealt directly
with a dispute involving the punishment of members,
such as censure or expulsion; rather, it has
suggested that this is a broad privilege, best left to
the judgment of the individual chambers.9 Still
“punishment of members” is rare; for example, since
1787 the House has expelled only four members and
the Senate, fifteen.10
9 See, for example, In re Chapman (1897).
10 Calculated from the House

(http://history.house.gov/Institution/Discipline/Expuls
ion-Censure-Reprimand/) and Senate’s
(https://www.senate.gov/artandhistory/history/comm
on/briefing/Expulsion_Censure.htm) Web sites.
Where controversy has arisen is over another

sentence of Article I, Section 5, which reads, “Each
House shall be the Judge of the Elections, Returns
and Qualifications of its own Members.” Several
interpretations of this clause are possible. One is
that it ought to be read in conjunction with the
Article I requirements for members. That is,
Congress cannot deny a duly elected person a seat in
the institution unless that person fails to meet the
specified criteria, such as the age requirement.
Another interpretation is that Congress is free to
develop additional qualifications, independent of
those specified elsewhere in Article I.
For the better part of the nation’s history, the Court

did not resolve this debate,11 even though Congress
occasionally acted as if it could add qualifications or
ignore them when they were not met. During the
Civil War, Congress enacted the Test Oath Law of
1862, which required incoming members to “swear .
. . that they had never voluntarily borne arms
against the United States.” Moreover, as shown in
Table 3-2, both the House and the Senate have
refused to seat properly elected individuals,
sometimes on extraconstitutional grounds. The
Senate excluded Philip Thomas of Maryland on
loyalty grounds when it was discovered that he had
given money to his son when he became a soldier in
the Confederate Army. The House refused to seat
Brigham H. Roberts of Utah because he had been
convicted of violating an antipolygamy law.
11 In the first case excerpted in this chapter, Powell

v. McCormack, the House argued that the Court, in
Barry v. United States ex rel. Cunningham (1929),
suggested that regarding the elections, returns, and
qualification of members, each House could “render
a judgment which is beyond the authority of any
other tribunal to review.” In Powell, the Court
rejected this reading of Barry, stating it was not an
essential component of the Barry ruling. The Court
also pointed to another statement in Barry: that
exercise of the “judging” power is subject “to the
restraints imposed by or found in the implications of
the Constitution.”
Table 3-2
Source: Congressional Quarterly, Guide to Congress,

7th ed. (Washington, DC: CQ Press, 2013).
In the course of investigating the Roberts case, a

congressional committee concluded that the framers
“had not foreclosed the right of Congress to
establish qualifications for membership other than
those mentioned in the Constitution.”12 As Table 3-2
shows, both houses subscribed to this theory. The
question of whether the Supreme Court would follow
suit remained largely unaddressed until 1969, when
the Court decided Powell v. McCormack and
responded to Congress’s traditional approach to
seating qualifications. What was the nature of that
response? Did the Court simply defer to Congress’s
wishes?
12 Congressional Quarterly, Guide to Congress, 7th

ed. (Washington, DC: CQ Press, 2013), 1132.
Powell v. McCormack 395 U.S. 486 (1969)
court/395/486.html

Vote: 7 (Black, Brennan, Douglas, Harlan,

Marshall, Warren, White)
1 (Stewart)

CONCURRING OPINION: Douglas
DISSENTING OPINION: Stewart
Facts:
As pastor of the Abyssinian Baptist Church in
Harlem, one of the nation’s largest congregations,
Adam Clayton Powell Jr. had been a force within
that New York City community since the 1930s.13
His influence only increased when he was elected
to the House in 1944 after receiving nominations
from both the Democratic and Republican Parties
(though he was elected as a Democrat). He
continued to be reelected by wide margins for the
next twenty-five years.
By the early 1960s Powell had acquired sufficient

seniority to chair the House Committee on
Education and Labor, but his relations with his
colleagues were troubled. Some House members
disliked his opulent, unconventional lifestyle, his
unpredictable leadership, and his use of the media
to suit his political ends. In addition, Powell
became entangled in various legal controversies;
for example, he refused to pay damages assessed
against him in a defamation of character suit and
actively sought to avert efforts to compel him to
pay.
13 We derive our account of this case largely from

Thomas G. Walker, American Politics and the
Constitution (North Scituate, MA: Duxbury Press,
1978), 132.
Speaker of the House John McCormack (left) and

Representative Adam Clayton Powell walk in
separate directions after conferring during the
1967 controversy over proposed disciplinary
action against Powell for violating House rules.
© Bettmann/CORBIS
The Eighty-Ninth Congress (1965–1966) launched

an inquiry into Powell’s activities, which yielded
two major violations of House rules: Powell had
used federal monies to fly a woman staff member
with him on trips to his vacation home in the
Bahamas and to pay his former wife a yearly
salary of $20,000, even though she did not work in
either his district or his Washington office, in
accordance with law. Powell was reelected in
November 1966, but the House refused to seat
him pending further investigation.
Four months later, in March 1967, the new

investigation reached two conclusions: (1) from a
constitutional standpoint, Powell met the
requirements for office: he was older than twenty-
five, had been a citizen of the United States for
seven years, and was an inhabitant of New York;
and (2) Powell had sought to evade the fine
associated with the defamation of character
offense, had misused public funds, and had filed
false expenditure reports. The committee
recommended that Powell be seated as a member
of Congress but that he be censured by the House,
fined $40,000, and deprived of his seniority. The
House rejected that recommendation and passed,
307–116, a resolution to exclude Powell from the
House and direct Speaker John McCormack to
notify the governor of New York that the seat was
vacant. Powell and thirteen of his constituents
responded by filing a lawsuit against McCormack
and other members of the House. They claimed
that the House’s refusal to seat Powell violated the
qualifications clause of the Constitution.
Arguments:
For the petitioner, Adam Clayton Powell
Jr.:
Because Powell meets the requirements for

office, the House had no choice but to seat
him. Article I, Section 5, which says, “Each
House shall be the judge of the Elections,
Returns and Qualifications of its own
Members,” is not implicated. It gives Congress
no authority to exclude members who met the
constitutional standards for office.
It was the intent of the framers that Congress
was to have no power to alter, add to, vary, or
ignore constitutional qualification for
membership.
This Court has consistently emphasized that
the right of the people to choose freely their
representatives is the essence of a democratic
society.
For the respondents, John W.
McCormack et al.:
The Court should read the qualifications clause
and Section 5 separately. The action taken by
the House was a proper exercise of the powers
delegated to it by the Constitution under
Section 5.
This dispute presents a political question,
which the Supreme Court should refrain from
answering. Article I, Section 5, shows a
textually demonstrable constitutional
commitment to the House of the adjudicatory
power to determine Powell’s qualifications.
Moreover, resolving this dispute would create a
potentially embarrassing confrontation
between the courts and Congress.

After certiorari was granted, respondents filed a

memorandum suggesting that . . . the case be
dismissed as moot. On January 3, 1969, the House
of Representatives of the 90th Congress officially
terminated, and petitioner Powell was seated as a
member of the 91st Congress. Respondents insist
that [because] Powell has now been seated, his
claims are moot. Petitioners counter that [several]
issues remain unresolved . . . [including] . . .
whether Powell is entitled to salary withheld after
his exclusion from the 90th Congress. We
conclude that Powell’s claim for back salary
remains viable even though he has been seated in
the 91st Congress, and thus find it unnecessary to
determine whether the other issues have become
moot.
Respondents maintain that even if this case is

otherwise justiciable, it presents only a political
question. It is well established that the federal
courts will not adjudicate political questions. In
Baker v. Carr, we noted that political questions
are not justiciable primarily because of the
separation of powers within the Federal
Government. . . .
[Respondents contend that] this case presents a

political question because under Art. I, §5, there
has been a “textually demonstrable constitutional
commitment” to the House of the “adjudicatory
power” to determine Powell’s qualifications. Thus
it is argued that the House, and the House alone,
has power to determine who is qualified to be a
member.
In order to determine whether there has been a

textual commitment to a coordinate department of
the Government, we must interpret the
Constitution. In other words, we must first
determine what power the Constitution confers
upon the House through Art. I, §5, before we can
determine to what extent, if any, the exercise of
that power is subject to judicial review.
Respondents maintain that the House has broad
power under §5, and, they argue, the House may
determine which are the qualifications necessary
for membership. On the other hand, petitioners
allege that the Constitution provides that an
elected representative may be denied his seat only
if the House finds he does not meet one of the
standing qualifications expressly prescribed by the
Constitution. . . .
In order to determine the scope of any “textual

commitment” under Art. I, §5, we necessarily must
determine the meaning of the phrase to “be the
Judge of the Qualifications of its own Members.”
Respondents insist . . . that a careful examination
of the pre-Convention practices of the English
Parliament and American colonial assemblies
demonstrates that by 1787, a legislature’s power
to judge the qualifications of its members was
generally understood to encompass exclusion or
expulsion on the ground that an individual’s
character or past conduct rendered him unfit to
serve. When the Constitution and the debates over
its adoption are thus viewed in historical
perspective, argue respondents, it becomes clear
that the “qualifications” expressly set forth in the
Constitution were not meant to limit the long-
recognized legislative power to exclude or expel at
will, but merely to establish “standing
incapacities,” which could be altered only by a
constitutional amendment. Our examination of the
relevant historical materials leads us to the
conclusion that petitioners are correct and that
the Constitution leaves the House without
authority to exclude any person, duly elected by
his constituents, who meets all the requirements
for membership expressly prescribed in the
Constitution. . . .
The Convention opened in late May 1787. . . .

On August 10, the Convention considered the
Committee of Detail’s proposal that the
“Legislature of the United States shall have
authority to establish such uniform qualifications
of the members of each House, with regard to
property, as to the said Legislature shall seem
expedient.” The debate on this proposal discloses
much about the views of the Framers on the issue
of qualifications. For example, James Madison
urged its rejection, stating that the proposal would
vest
“an improper & dangerous power in the

Legislature. The qualifications of electors and
elected were fundamental articles in a
Republican Govt. and ought to be fixed by the
Constitution. If the Legislature could regulate
those of either, it can by degrees subvert the
Constitution. A Republic may be converted
into an aristocracy or oligarchy as well by
limiting the number capable of being elected,
as the number authorized to elect. . . . It was a
power also, which might be made subservient
to the views of one faction agst. another.
Qualifications founded on artificial distinctions
may be devised, by the stronger in order to
keep out partizans of [a weaker] faction.”
Significantly, Madison’s argument was not aimed

at the imposition of a property qualification as
such, but rather at the delegation to the Congress
of the discretionary power to establish any
qualifications. . . .
Madison [also] referred to the British Parliament’s
assumption of the power to regulate the
qualifications of both electors and the elected and
noted that “the abuse they had made of it was a
lesson worthy of our attention. They had made the
changes in both cases subservient to their own
views, or to the views of political or Religious
parties.” Shortly thereafter, the Convention
rejected . . . the Committee’s proposal. Later the
same day, the Convention adopted without debate
the provision authorizing each House to be “the
judge of the . . . qualifications of its own
members.”
One other decision made the same day is very

important to determining the meaning of Art. I, §5.
When the delegates reached the Committee of
Detail’s proposal to empower each House to expel
its members, Madison “observed that the right of
expulsion . . . was too important to be exercised by
a bare majority of a quorum: and in emergencies
[one] faction might be dangerously abused.” He
therefore moved that “with the concurrence of
two-thirds” be inserted. With the exception of one
State, whose delegation was divided, the motion
was unanimously approved without debate.. . . The
importance of this decision cannot be
overemphasized. None of the parties to this suit
disputes that prior to 1787 the legislative powers
to judge qualifications and to expel were exercised
by a majority vote . . . Thus, the Convention’s
decision to increase the vote required to expel,
because that power was “too important to be
exercised by a bare majority,” while at the same
time not similarly restricting the power to judge
qualifications, is compelling evidence that they
considered the latter already limited by the
standing qualifications previously adopted. . . .
As clear as these statements appear, respondents

dismiss them as “general statements . . . directed
to other issues.” They suggest that far more
relevant is Congress’ own understanding of its
power to judge qualifications as manifested in
post-ratification exclusion cases. Unquestionably,
both the House and the Senate have excluded
members-elect for reasons other than their failure
to meet the Constitution’s standing qualifications.
For almost the first 100 years of its existence,
however, Congress strictly limited its power to
judge the qualifications of its members to those
enumerated in the Constitution.
Congress was first confronted with the issue in

1807, when the eligibility of William McCreery
was challenged because he did not meet
additional residency requirements imposed by the
State of Maryland. In recommending that he be
seated, the [chairman of the] House Committee of
Elections [explained]:
“The Committee of Elections considered the

qualifications of members to have been
unalterably determined by the Federal
Convention, unless changed by an authority
equal to that which framed the Constitution at
first; that neither the State nor the Federal
Legislatures are vested with authority to add
to those qualifications, so as to change them. .
. . Congress, by the Federal Constitution, are
not authorized to prescribe the qualifications
of their own members, but they are authorized
to judge of their qualifications; in doing so,
however, they must be governed by the rules
prescribed by the Federal Constitution, and by
them only.
At the conclusion of a lengthy debate . . . the

House agreed by a vote of 89 to 18 to seat
Congressman McCreery.
There was no significant challenge to these

principles for the next several decades. They came
under heavy attack, however, “during the stress of
civil war [but initially] the House of
Representatives declined to exercise the power [to
exclude], even under circumstances of great
provocation.” The abandonment of such restraint,
however, was among the casualties of the general
upheaval produced in war’s wake. From that time
until the present, congressional practice has been
erratic; and on the few occasions when a member-
elect was excluded although he met all the
qualifications set forth in the Constitution, there
were frequently vigorous dissents. . . .
Had these congressional exclusion precedents

been more consistent, their precedential value still
would be quite limited. That an unconstitutional
action has been taken before surely does not
render that same action any less unconstitutional
at a later date. Particularly in view of the
Congress’ own doubts in those few cases where it
did exclude members-elect, we are not inclined to
give its precedents controlling weight. . . . And,
what evidence we have of Congress’ early
understanding confirms our conclusion that the
House is without power to exclude any member-
elect who meets the Constitution’s requirements
for membership.
Had the intent of the Framers emerged from these

materials with less clarity, we would nevertheless
have been compelled to resolve any ambiguity in
favor of a narrow construction of the scope of
Congress’ power to exclude members-elect. A
fundamental principle of our representative
democracy is, in Hamilton’s words, “that the
people should choose whom they please to govern
them.” As Madison pointed out at the Convention,
this principle is undermined as much by limiting
whom the people can select as by limiting the
franchise itself. In apparent agreement with this
basic philosophy, the Convention adopted his
suggestion limiting the power to expel. To allow
essentially that same power to be exercised under
the guise of judging qualifications, would be to
ignore Madison’s warning. . . . Moreover, it would
effectively nullify the Convention’s decision to
require a two-thirds vote for expulsion.
Unquestionably, Congress has an interest in
preserving its institutional integrity, but in most
cases that interest can be sufficiently safeguarded
by the exercise of its power to punish its members
for disorderly behavior and, in extreme cases, to
expel a member with the concurrence of two-
thirds. In short, both the intention of the Framers,
to the extent it can be determined, and an
examination of the basic principles of our
democratic system persuade us that the
Constitution does not vest in the Congress a
discretionary power to deny membership by a
majority vote.
For these reasons, we have concluded that Art. I,

§5, is at most a “textually demonstrable
commitment” to Congress to judge only the
qualifications expressly set forth in the
Constitution. Therefore, the “textual commitment”
formulation of the political question doctrine does
not bar federal courts from adjudicating
petitioners’ claims. . . .
. . . Thus, there is no need to remand this case to

determine whether he was entitled to be seated in
the 90th Congress. Therefore, we hold that, since
Adam Clayton Powell, Jr., was duly elected by the
voters of the 18th Congressional District of New
York and was not ineligible to serve under any
provision of the Constitution, the House was
without power to exclude him from its
membership. . . .
It is so ordered.
MR. JUSTICE STEWART,

Dissenting.
I believe that events which have taken place since
certiorari was granted in this case on November
18, 1968, have rendered it moot, and that the
Court should therefore refrain from deciding the
novel, difficult, and delicate constitutional
questions which the case presented at its
inception.
The essential purpose of this lawsuit by
Congressman Powell and members of his
constituency was to regain the seat from which he
was barred by the 90th Congress. That purpose,
however, became impossible of attainment on
January 3, 1969, when the 90th Congress passed
into history and the 91st Congress came into
being. On that date, the petitioners’ prayer for a
judicial decree . . . commanding the respondents
to admit Congressman Powell to membership in
the 90th Congress became incontestably moot. . . .
[O]n January 3, 1969, the House of

Representatives of the 91st Congress admitted
Congressman Powell to membership, and he now
sits as the Representative of the 18th
Congressional District of New York. With the 90th
Congress terminated and Powell now a member of
the 91st, it cannot seriously be contended that
there remains a judicial controversy between
these parties over the power of the House of
Representatives to exclude Powell and the power
of a court to order him reseated.
Chief Justice Earl Warren’s holding in Powell is

indisputable: because Powell was duly elected and
because he met the constitutional standards for
membership, the House could not refuse to seat him.
(For Powell’s fate after the Court’s decision, see Box
3-1.) As Warren emphatically noted, “Congress is
limited to the standing qualifications prescribed in
the Constitution.” Note that Warren, on the basis of
the words of the Constitution and the intent of its
framers, rejected McCormack’s political question
argument. But recall Chief Justice William H.
Rehnquist’s decision in Nixon v. United States (1993)
(excerpted in Chapter 2), which used similar
materials to find that Nixon’s suit raised a political
question that the Court would not address. Are the
two reconcilable or contradictory?
Another question to ask yourself about Powell

concerns its relevance for one of the more
interesting present-day debates about Article I: Does
the U.S. Constitution give states the power to enact
term limits for members of the U.S. Congress?
Opponents of term limits point to Article I’s
qualification clauses and use Powell to argue that
those clauses fix the requirements for office—
requirements that neither Congress nor the states
may alter. Supporters, as we note below, offer a
number of counterarguments to Powell. In 1995 the
Supreme Court entered the fray in U.S. Term Limits,
Inc. v. Thornton, excerpted below.
While reading Justice John Paul Stevens’s opinion for

the majority, compare it with Chief Justice Warren’s
in Powell. Does the majority’s rationale in U.S. Term
Limits square with Warren’s reasoning? Also pay
close attention to how both the majority and
dissenting opinions deal with arguments following
from originalism. Is U.S. Term Limits an example of
the difficulty of applying this mode of analysis to
actual cases? Finally, consider this question: Would
the Court have arrived at a different answer had the
U.S. House of Representatives voted to propose a
term limits amendment?
Box 3-1 Aftermath . . . Adam Clayton Powell Jr.
WHILE the House of Representatives debated

what to do with him, Adam Clayton Powell Jr.
spent most of 1967 on the island of Bimini in the
Bahamas. He was unable to return to New York
because of his refusal to pay court-ordered
damages in a 1963 libel case and a pending
contempt of court charge. He ultimately raised
sufficient funds to satisfy the judgment and settled
the contempt matter.
He ran for his vacated congressional seat in a

special election in April 1967 and again in
November 1968 regular elections, winning
overwhelmingly both times. In January 1969, as
the Supreme Court was about to hear arguments
in the lawsuit challenging his 1967 exclusion from
Congress, the House agreed to seat Powell but
stripped him of his seniority and fined him
$25,000 for misuse of funds. As a result, Powell
lost his position as chair of the House Committee
on Education and Labor, a primary source of his
political power.
About this same time Powell was diagnosed with

cancer. Weakened by treatments for the disease,
he ran for reelection in 1970 but was defeated by
a 150-vote margin in the Democratic primary by
Charles Rangel. The loss ended Powell’s quarter-
century of service in Congress. In 1971 Powell, in
declining health, retired from the pulpit of
Harlem’s Abyssinian Baptist Church and wrote his
autobiography. He died on April 4, 1972, in Miami,
Florida, at age sixty-four.
Source: American National Biography, vol. 17

(New York: Oxford University Press, 1999), 773–
775.
U.S. Term Limits, Inc. v. Thornton 514 U.S. 779

(1995)
court/514/779.html

Vote: 5 (Breyer, Ginsburg, Kennedy, Souter,

Stevens)
4 (O’Connor, Rehnquist, Scalia, Thomas)
OPINION OF THE COURT: Stevens

CONCURRING OPINION: Kennedy
DISSENTING OPINION: Thomas
Facts:
In 1990 Colorado became the first state to limit
terms for federal officeholders. Subsequently,
twenty-three additional states passed term limit
initiatives. U.S. Term Limits involved one of those
initiatives. It originated in Arkansas, where in
1992 voters approved an amendment to the state
constitution (Amendment 73) prohibiting from the
ballot anyone seeking reelection who previously
had served two terms in the U.S. Senate or three
terms in the U.S. House of Representatives. It
permitted anyone to be elected as a write-in
candidate, presumably as a way of allowing for the
reelection of a popular incumbent.
The amendment was to apply to all persons

seeking reelection after January 1, 1993. About
two months before that date, the League of
Women Voters and various citizens of Arkansas,
including U.S. Representative Ray Thornton, filed
suit asking a state court to declare the
amendment unconstitutional. Among the
arguments they made in this court and later in the
Arkansas Supreme Court was that Amendment 73
violated Article I of the U.S. Constitution. In
particular, based on Powell v. McCormack, they
claimed that the federal Constitution establishes
the sole qualifications for federal office, and the
states may not alter them. Arkansas and U.S. Term
Limits, an organization supporting the
amendment, responded by pointing to Section 4 of
Article I: “The Times, Places and Manner of
holding Elections for Senators and
Representatives, shall be prescribed in each State
by the Legislature thereof.” In their view, this
section—not the qualifications clauses—was
applicable because term limits would regulate
access to the ballot, not the qualifications for
office. They further suggested that Powell spoke
only about the ability of the U.S. House of
Representatives, not of the states, to set
qualifications. Finally, because the Constitution
does not explicitly prohibit the states from setting
qualifications for office, it is a power reserved to
them under the Tenth Amendment.
The Arkansas courts disagreed. The lower court

struck down the amendment as a violation of
Article I, and in 1994 the state supreme court
affirmed. According to that court, “The
qualifications clauses fix the sole requirement for
congressional service. This is not a power left to
the states.” With this defeat in hand, amendment
proponents appealed to the U.S. Supreme Court,
which agreed to hear the case.
Arguments:
For the petitioners, U.S. Term Limits,
Inc., et al.:
Amendment 73 does not set a qualification for

office. Although it is designed to lessen the
overwhelming election advantages enjoyed by
incumbents, it does so only by not continuing
to print such incumbents’ names on ballots. It
does not disqualify them from running, being
elected, or serving in office. As a result, it is
clear that Amendment 73 does not impose an
additional qualification for congressional office.
Qualifications for office are those attributes
that are legal prerequisites to eligibility for
office. Ballot access restrictions such as
Amendment 73 are not qualifications.
Even if the Arkansas Supreme Court was
correct in its assertion that Amendment 73
added qualifications for holding congressional
office, Article I still would not be violated.
Article I, in both Sections 2 and 4, explicitly
assigns the states broad power over
congressional elections.14
14 See also Table 1-1 in Chapter 1, which provides

additional arguments made in this case.
For the respondents, Ray

Thornton et al.:
During the debates over ratification of the
Constitution, opponents mounted unsuccessful
efforts in several states to provide for term
limits for members of Congress—a limitation
the framers rejected during the Constitutional
Convention.
This Court acknowledged in Powell v.
McCormack that the history surrounding the
drafting and adoption of Article I reinforces
what the text and structure reveal—that the
framers eliminated term limits and other
limitations and prescribed only a few and
exclusive qualifications to ensure voters the
widest possible choice of federal
representatives. Amendment 73 seeks to
circumscribe the choice of individual voters in
federal elections and to disable permanently a
specific class of candidates for Congress.
Justice Stevens Delivered the Opinion of the

Court.
Today’s cases present a challenge to an
amendment to the Arkansas State Constitution
that prohibits the name of an otherwise eligible
candidate for Congress from appearing on the
general election ballot if that candidate has
already served three terms in the House of
Representatives or two terms in the Senate. The
Arkansas Supreme Court held that the amendment
violates the Federal Constitution. We agree with
that holding. Such a state-imposed restriction is
contrary to the “fundamental principle of our
representative democracy,” embodied in the
Constitution, that “the people should choose
whom they please to govern them.” Powell v.
McCormack (1969). Allowing individual States to
adopt their own qualifications for congressional
service would be inconsistent with the Framers’
vision of a uniform National Legislature
representing the people of the United States. If
the qualifications set forth in the text of the
Constitution are to be changed, that text must be
amended. . . .
As the opinions of the Arkansas Supreme Court

suggest, the constitutionality of Amendment 73
depends critically on the resolution of two distinct
issues. The first is whether the Constitution
forbids States from adding to or altering the
qualifications specifically enumerated in the
Constitution. The second is, if the Constitution
does so forbid, whether the fact that Amendment
73 is formulated as a ballot access restriction
rather than as an outright disqualification is of
constitutional significance. Our resolution of these
issues draws upon our prior resolution of a related
but distinct issue: whether Congress has the
power to add to or alter the qualifications of its
Members.
Twenty-six years ago . . . Powell v. McCormack . . .

establishe[d] two important propositions: first,
that the “relevant historical materials” compel the
conclusion that, at least with respect to
qualifications imposed by Congress, the Framers
intended the qualifications listed in the
Constitution to be exclusive; and second, that that
conclusion is equally compelled by an
understanding of the “fundamental principle of
our representative democracy . . . ‘that the people
should choose whom they please to govern them.’”
...
Unsurprisingly, the state courts and lower federal

courts have similarly concluded that Powell
conclusively resolved the issue whether Congress
has the power to impose additional qualifications.
[And] we reaffirm that the qualifications for
service in Congress set forth in the text of the
Constitution are “fixed,” at least in the sense that
they may not be supplemented by Congress.
Our reaffirmation of Powell does not necessarily

resolve the specific questions presented in these
cases. For petitioners argue that whatever the
constitutionality of additional qualifications for
membership imposed by Congress, the historical
and textual materials discussed in Powell do not
support the conclusion that the Constitution
prohibits additional qualifications imposed by
States. In the absence of such a constitutional
prohibition, petitioners argue, the Tenth
Amendment and the principle of reserved powers
require that States be allowed to add such
qualifications.
Before addressing these arguments, we find it

appropriate to take note of the striking unanimity
among the courts that have considered the issue.
None of the overwhelming array of briefs
submitted by the parties and amici has called to
our attention even a single case in which a state
court or federal court has approved of a State’s
addition of qualifications for a member of
Congress. To the contrary, an impressive number
of courts have determined that States lack the
authority to add qualifications. . . . This impressive
and uniform body of judicial decisions . . .
indicates that the obstacles confronting
petitioners are formidable indeed.
Petitioners argue that the Constitution contains no

express prohibition against state-added
qualifications, and that Amendment 73 is
therefore an appropriate exercise of a State’s
reserved power to place additional restrictions on
the choices that its own voters may make. We
disagree for two independent reasons. First, we
conclude that the power to add qualifications is
not within the “original powers” of the States, and
thus is not reserved to the States by the Tenth
Amendment. Second, even if States possessed
some original power in this area, we conclude that
the Framers intended the Constitution to be the
exclusive source of qualifications for members of
Congress, and that the Framers thereby
“divested” States of any power to add
qualifications. . . .
Contrary to petitioners’ assertions, the power to
add qualifications is not part of the original
powers of sovereignty that the Tenth Amendment
reserved to the States. Petitioners’ Tenth
Amendment argument misconceives the nature of
the right at issue because that Amendment could
only “reserve” that which existed before. As
Justice Story recognized, “the states can exercise
no powers whatsoever, which exclusively spring
out of the existence of the national government,
which the Constitution does not delegate to them.
. . . No state can say, that it has reserved, what it
never possessed.” . . .
With respect to setting qualifications for service in

Congress, no such right existed before the
Constitution was ratified. The contrary argument
overlooks the revolutionary character of the
government that the Framers conceived. Prior to
the adoption of the Constitution, the States joined
together under the Articles of Confederation. In
that system, “the States retained most of their
sovereignty, like independent nations bound
together only by treaties.” [When the
Constitution’s framers] decided “to create an
entirely new government with a National
Executive, National Judiciary, and a National
Legislature,” [they] envisioned a uniform national
system, rejecting the notion that the Nation was a
collection of States, and instead creating a direct
link between the National Government and the
people of the United States. In that National
Government, representatives owe primary
allegiance not to the people of a State but to the
people of a Nation. . . .
In short, as the Framers recognized, electing
representatives to the National Legislature was a
new right, arising from the Constitution itself. The
Tenth Amendment thus provides no basis for
concluding that the States possess reserved power
to add qualifications to those that are fixed in the
Constitution. Instead, any state power to set the
qualifications for membership in Congress must
derive not from the reserved powers of state
sovereignty, but rather from the delegated powers
of national sovereignty. In the absence of any
constitutional delegation to the States of power to
add qualifications to those enumerated in the
Constitution, such a power does not exist.
Even if we believed that States possessed as part

of their original powers some control over
congressional qualifications, the text and
structure of the Constitution, the relevant
historical materials, and, most importantly, the
“basic principles of our democratic system” all
demonstrate that the Qualifications Clauses were
intended to preclude the States from exercising
any such power and to fix as exclusive the
qualifications in the Constitution. . . .
The available affirmative evidence indicates the

Framers’ intent that States have no role in the
setting of qualifications. . . .
We find compelling the complete absence in the

ratification debates of any assertion that States
had the power to add qualifications. In those
debates, the question whether to require term
limits, or “rotation,” was a major source of
controversy. The draft of the Constitution that was
submitted for ratification contained no provision
for rotation. . . . At several ratification
conventions, participants proposed amendments
that would have required rotation.
The Federalists’ responses to those criticisms and

proposals addressed the merits of the issue,
arguing that rotation was incompatible with the
people’s right to choose. . . . Hamilton argued that
the representatives’ need for reelection rather
than mandatory rotation was the more effective
way to keep representatives responsive to the
people, because “when a man knows he must quit
his station, let his merit be what it may, he will
turn his attention chiefly to his own emolument.”
Regardless of which side has the better of the

debate over rotation, it is most striking that
nowhere in the extensive ratification debates have
we found any statement by either a proponent or
an opponent of rotation that the draft constitution
would permit States to require rotation for the
representatives of their own citizens. . . .
Our conclusion that States lack the power to

impose qualifications vindicates the same
“fundamental principle of our representative
democracy” that we recognized in Powell, namely
that “the people should choose whom they please
to govern them.”
. . . [S]tate-imposed restrictions, unlike the

congressionally imposed restrictions at issue in
Powell, also violate [an] idea central to this basic
principle: that the right to choose representatives
belongs not to the States, but to the people. . . .
Petitioners attempt to overcome this . . . evidence
against the States’ power to impose qualifications
by arguing that the practice of the States
immediately after the adoption of the Constitution
demonstrates their understanding that they
possessed such power. One may properly question
the extent to which the States’ own practice is a
reliable indicator of the contours of restrictions
that the Constitution imposed on States, especially
when no court has ever upheld a state-imposed
qualification of any sort. . . . But petitioners’
argument is unpersuasive even on its own terms.
At the time of the Convention, “almost all the
State Constitutions required members of their
Legislatures to possess considerable property.”
Despite this near uniformity, only one State,
Virginia, placed similar restrictions on members of
Congress, requiring that a representative be . . . a
“freeholder.” Just 15 years after imposing a
property qualification, Virginia replaced that
requirement with a provision requiring that
representatives be only “qualified according to the
constitution of the United States.” . . .
In sum, the available historical and textual

evidence, read in light of the basic principles of
democracy underlying the Constitution and
recognized by this Court in Powell, reveal the
Framers’ intent that neither Congress nor the
States should possess the power to supplement
the exclusive qualifications set forth in the text of
the Constitution.
Petitioners argue that, even if States may not add

qualifications, Amendment 73 is constitutional
because it is not such a qualification, and because
Amendment 73 is a permissible exercise of state
power to regulate the “Times, Places and Manner
of Holding Elections.” We reject these contentions.
Unlike §1 and §2 of Amendment 73, which create

absolute bars to service for long-term incumbents
running for state office, §3 merely provides that
certain Senators and Representatives shall not be
certified as candidates and shall not have their
names appear on the ballot. They may run as
write-in candidates and, if elected, they may
serve. Petitioners contend that only a legal bar to
service creates an impermissible qualification, and
that Amendment 73 is therefore consistent with
the Constitution. . . .
We need not decide whether petitioners’ narrow

understanding of qualifications is correct because,
even if it is, Amendment 73 may not stand. As we
have often noted, “‘constitutional rights would be
of little value if they could be . . . indirectly
denied.’” The Constitution “nullifies sophisticated
as well as simple-minded modes” of infringing on
Constitutional protections.
In our view, Amendment 73 is an indirect attempt

to accomplish what the Constitution prohibits
Arkansas from accomplishing directly. . . . Indeed,
it cannot be seriously contended that the intent
behind Amendment 73 is other than to prevent the
election of incumbents. The preamble of
Amendment 73 states explicitly: “The people of
Arkansas . . . herein limit the terms of elected
officials.” Sections 1 and 2 create absolute limits
on the number of terms that may be served. There
is no hint that §3 was intended to have any other
purpose.
Petitioners do, however, contest the Arkansas

Supreme Court’s conclusion that the Amendment
has the same practical effect as an absolute bar.
They argue that the possibility of a write-in
campaign creates a real possibility for victory,
especially for an entrenched incumbent. One may
reasonably question the merits of that contention.
. . . But even if petitioners are correct that
incumbents may occasionally win reelection as
write-in candidates, there is no denying that the
ballot restrictions will make it significantly more
difficult for the barred candidate to win the
election. In our view, an amendment with the
avowed purpose and obvious effect of evading the
requirements of the Qualifications Clauses by
handicapping a class of candidates cannot stand. .
..
The merits of term limits, or “rotation,” have been

the subject of debate since the formation of our
Constitution, when the Framers unanimously
rejected a proposal to add such limits to the
Constitution. The cogent arguments on both sides
of the question that were articulated during the
process of ratification largely retain their force
today. . . . Term limits, like any other qualification
for office, unquestionably restrict the ability of
voters to vote for whom they wish. On the other
hand, such limits may provide for the infusion of
fresh ideas and new perspectives, and may
decrease the likelihood that representatives will
lose touch with their constituents. It is not our
province to resolve this longstanding debate.
We are, however, firmly convinced that allowing
the several States to adopt term limits for
congressional service would effect a fundamental
change in the constitutional framework. Any such
change must come not by legislation adopted
either by Congress or by an individual State, but
rather—as have other important changes in the
electoral process—through the Amendment
procedures set forth in Article V. The Framers
decided that the qualifications for service in the
Congress of the United States be fixed in the
Constitution and be uniform throughout the
Nation. That decision reflects the Framers’
understanding that Members of Congress are
chosen by separate constituencies, but that they
become, when elected, servants of the people of
the United States. They are not merely delegates
appointed by separate, sovereign States; they
occupy offices that are integral and essential
components of a single National Government. In
the absence of a properly passed constitutional
amendment, allowing individual States to craft
their own qualifications for Congress would thus
erode the structure envisioned by the Framers, a
structure that was designed, in the words of the
Preamble to our Constitution, to form a “more
perfect Union.”
The judgment is affirmed.
It is so ordered.
JUSTICE THOMAS, with whom

THE CHIEF JUSTICE, JUSTICE
O’CONNOR, and JUSTICE
SCALIA join, dissenting.
It is ironic that the Court bases today’s decision on
the right of the people to “choose whom they
please to govern them.” Under our Constitution,
there is only one State whose people have the
right to “choose whom they please” to represent
Arkansas in Congress. The Court holds, however,
that neither the elected legislature of that State
nor the people themselves (acting by ballot
initiative) may prescribe any qualifications for
those representatives. The majority therefore
defends the right of the people of Arkansas to
“choose whom they please to govern them” by
invalidating a provision that won nearly 60% of
the votes cast in a direct election and that carried
every congressional district in the State.
I dissent. Nothing in the Constitution deprives the

people of each State of the power to prescribe
eligibility requirements for the candidates who
seek to represent them in Congress. The
Constitution is simply silent on this question. And
where the Constitution is silent, it raises no bar to
action by the States or the people.
Because the majority fundamentally

misunderstands the notion of “reserved” powers, I
start with some first principles. Contrary to the
majority’s suggestion, the people of the States
need not point to any affirmative grant of power in
the Constitution in order to prescribe
qualifications for their representatives in
Congress, or to authorize their elected state
legislators to do so. . . .
When they adopted the Federal Constitution, of

course, the people of each State surrendered
some of their authority to the United States (and
hence to entities accountable to the people of
other States as well as to themselves). They
affirmatively deprived their States of certain
powers and they affirmatively conferred certain
powers upon the Federal Government. Because
the people of the several States are the only true
source of power, however, the Federal
Government enjoys no authority beyond what the
Constitution confers: the Federal Government’s
powers are limited and enumerated. . . .
In each State, the remainder of the people’s

powers—“the powers not delegated to the United
States by the Constitution, nor prohibited by it to
the States,”—are either delegated to the state
government or retained by the people. The
Federal Constitution does not specify which of
these two possibilities obtains; it is up to the
various state constitutions to declare which
powers the people of each State have delegated to
their state government. As far as the Federal
Constitution is concerned, then, the States can
exercise all powers that the Constitution does not
withhold from them. The Federal Government and
the States thus face different default rules: where
the Constitution is silent about the exercise of a
particular power—that is, where the Constitution
does not speak either expressly or by necessary
implication—the Federal Government lacks that
power and the States enjoy it.
These basic principles are enshrined in the Tenth
Amendment, which declares that all powers
neither delegated to the Federal Government nor
prohibited to the States “are reserved to the
States respectively, or to the people.” With this
careful last phrase, the Amendment avoids taking
any position on the division of power between the
state governments and the people of the States: it
is up to the people of each State to determine
which “reserved” powers their state government
may exercise. . . .
The majority begins by announcing an enormous

and untenable limitation on the principle
expressed by the Tenth Amendment. According to
the majority, the States possess only those powers
that the Constitution affirmatively grants to them
or that they enjoyed before the Constitution was
adopted; the Tenth Amendment “could only
‘reserve’ that which existed before.” From the fact
that the States had not previously enjoyed any
powers over the particular institutions of the
Federal Government established by the
Constitution, the majority derives a rule precisely
opposite to the one that the Amendment actually
prescribes: “The states can exercise no powers
whatsoever, which exclusively spring out of the
existence of the national government, which the
constitution does not delegate to them.”
. . . Given the fundamental principle that all

governmental powers stem from the people of the
States, it would simply be incoherent to assert
that the people of the States could not reserve any
powers that they had not previously controlled.
The Tenth Amendment’s use of the word
“reserved” does not help the majority’s position. If
someone says that the power to use a particular
facility is reserved to some group, he is not saying
anything about whether that group has previously
used the facility. He is merely saying that the
people who control the facility have designated
that group as the entity with authority to use it.
The Tenth Amendment is similar: the people of the
States, from whom all governmental powers stem,
have specified that all powers not prohibited to
the States by the Federal Constitution are
reserved “to the States respectively, or to the
people.”
The majority is therefore quite wrong to conclude

that the people of the States cannot authorize
their state governments to exercise any powers
that were unknown to the States when the Federal
Constitution was drafted. Indeed, the majority’s
position frustrates the apparent purpose of the
Amendment’s final phrase. The Amendment does
not pre-empt any limitations on state power found
in the state constitutions, as it might have done if
it simply had said that the powers not delegated to
the Federal Government are reserved to the
States. But the Amendment also does not prevent
the people of the States from amending their state
constitutions to remove limitations that were in
effect when the Federal Constitution and the Bill
of Rights were ratified. . . .
I take it to be established, then, that the people of

Arkansas do enjoy “reserved” powers over the
selection of their representatives in Congress. . . .
Whatever one might think of the wisdom of this
arrangement, we may not override the decision of
the people of Arkansas unless something in the
Federal Constitution deprives them of the power
to enact such measures.
The decision in U.S. Term Limits v. Thornton,

coupled with the Powell ruling, authoritatively
settled the issue of qualifications for congressional
office. The Constitution’s age, residency, and
citizenship requirements are a complete statement
of congressional eligibility standards. Neither
Congress nor the states may add to or delete from
those requirements. According to the Court, such
alterations to the requirements for membership in
the federal legislature could be imposed only by
constitutional amendment.
The term limit question, however, remained a hot

political topic—so much so that at least one state
took direct action to circumvent the Court’s decision.
In response to U.S. Term Limits, voters in Missouri
adopted an amendment (Article VIII) to their state
constitution with the aim of bringing about a
“congressional term limits amendment” to the
federal Constitution. Article VIII required that the
words “Disregarded Voters’ Instruction on Term
Limits” be put on the ballot near the name of any
incumbent who had not taken specific actions in
Congress to support a term limits amendment to the
U.S. Constitution, and nonincumbents who had not
taken a pledge to support term limits were to have
the words “Declined to Pledge to Support Term
Limits” printed on the ballot near their names.
Donald Gralike, a nonincumbent candidate for the
U.S. House of Representatives, challenged Missouri’s
Article VIII on federal constitutional grounds. And, in
Cook v. Gralike (2001), he prevailed in the U.S.
Supreme Court. Writing for the Court, Justice
Stevens relied on the logic of his majority opinion in
Thornton to conclude that Article VIII was an
unconstitutional effort on the part of a state to add
qualifications for office.
Speech or Debate Clause

The Court’s reading of the Constitution in Powell
protects those who have been duly elected to
Congress and meet the qualifications of office from
being excluded by members of their own branch; and
Thornton says that the states cannot limit the terms
of office of members of the House or Senate. The
Constitution also contains a safeguard against
harassment or intimidation by the executive branch.
Article I, Section 6, specifies:
The Senators and Representatives . . . shall in all

Cases, except Treason, Felony, and Breach of the
Peace, be privileged from Arrest during their
Attendance at the Session of their respective
Houses, and in going to and returning from the
same; and for any Speech or Debate in either
House, they shall not be questioned in any other
Place.
Box 3-2 Privileges and Immunities for

Legislators in Global Perspective
MOST democracies provide protection for

legislators similar to the U.S. Constitution’s
speech or debate clause, but these countries have
put their own twists on it. In Brazil, for example,
legislators “shall enjoy civil and criminal immunity
for any of their opinions, words and votes.” The
Brazilian Constitution also says that legislators
may not be arrested “except in flagrante delicto
[in the act of] for a non-bailable crime.” But even
then the police report is sent to the member’s
chamber, which decides on imprisonment by a
majority vote. This is similar to Denmark’s
constitution: members cannot be “prosecuted or
imprisoned in any manner,” unless the legislature
consents or the member is caught red-handed.
The Israeli Constitution, in contrast, provides
members of its legislature with immunity but the
“particulars shall be prescribed by Law.”
Some countries do have mechanisms for redress

for people who believe they have been hurt by
legislators. Australia provides an interesting
example. Although members of its parliament are
immune from defamation suits for statements they
make on the floor, its senate allows people who
believe they have been defamed to request that
body to allow them to reply to such statements in
the senate’s published record.
Sources: The Constitute Project, at

https://www.constituteproject.org/; George
Thomas Kurian, World Encyclopedia of
Parliaments and Legislatures (Washington, DC:
Congressional Quarterly, 1998).
Called the speech or debate clause, this privilege of

membership derives from British practice. The
English Parliament, during its struggles with the
Crown, asserted that its members were immune
from arrest during its sessions, and the English Bill
of Rights embodies this guarantee.
The importance of the speech or debate clause’s

protection is undeniable: without it, a president
could order the arrest of, or otherwise intimidate,
members of Congress who disagree publicly with the
administration. The framers thought the statement
was necessary “to protect the integrity of the
legislative process by insuring the independence of
individual legislators.”15 Other countries apparently
share this sentiment. Whether in their constitutions
or by law, many democracies throughout the world
provide similar protection for their legislators (see
Box 3-2).
15 United States v. Brewster (1972).
The language of Article I, Section 6 of the U.S.

Constitution has generated two kinds of
constitutional questions: What is protected and who
is protected? The Court took a stab at addressing the
first question in Kilbourn v. Thompson (1881).
Though the justices dealt primarily with the scope of
congressional investigations, they noted that the
clause extends to:
written reports presented . . . by its committees,

to resolutions offered, which, though in writing,
must be reproduced in speech, and to the act of
voting, whether it is done vocally or by passing
between the tellers. In short, to things generally
done in a session [of Congress] by one of its
members in relation to the business before it.
With only some minor modifications, Kilbourn

remained the Court’s most significant statement on
the clause until 1972, when Gravel v. United States
was decided. This case had important implications
for both questions arising out of Article I, Section 6:
Who is protected and what is protected?
Senator Mike Gravel whose release of the classified

Pentagon Papers led to a major Supreme Court
interpretation of the speech or debate clause.
AP Photo/Charles Dharapak
Gravel v. United States 408 U.S. 606 (1972)
court/408/606.html

Vote: 5 (Blackmun, Burger, Powell, Rehnquist,

White)
4 (Brennan, Douglas, Marshall, Stewart)
OPINION OF THE COURT: White

DISSENTING OPINIONS: Brennan, Douglas
DISSENTING IN PART: Stewart
Facts:
On June 29, 1971, Senator Mike Gravel (D-Alaska)
held a public meeting of the Subcommittee on
Buildings and Grounds, which he chaired. Before
the hearing began, Gravel made a statement about
the Vietnam War, noting that it was “relevant to
his subcommittee . . . because of its effects upon
the domestic economy and . . . the lack of federal
funds to provide for adequate public facilities.” He
then read portions of a classified government
document, now known as the Pentagon Papers,
that provided a history of U.S. involvement in the
war. After he finished, Gravel introduced the forty-
seven-volume document into the committee’s
record and “arranged, without any personal profit
to himself, for its verbatim publication by Beacon
Press,” a publishing division of the Unitarian
Universalist Association. At the time, the media
also reported that members of Gravel’s staff had
talked with Howard Webber, director of MIT
Press, about possible publication of the
documents.
The Justice Department began an investigation to

determine how the Pentagon Papers had been
released. It requested a district court judge to
convene a grand jury, which in turn subpoenaed
Dr. Leonard Rodberg, an aide to Senator Gravel;
Webber; and, later, the publisher of Beacon Press.
Rodberg and Gravel asked the court to quash the
subpoena. In their view, U.S. attorneys “intended
to interrogate Dr. Rodberg” about “the actions of
Senator Gravel and his aides in making available”
the Pentagon Papers.
The government initially rejected all of Gravel’s

claims; it even argued that Gravel’s actions
remained outside constitutional protections. By
the time the case reached the Supreme Court,
however, the government had limited its charges
to Gravel’s aide and the publisher. Even so, Gravel
v. United States continued to raise the classic
questions: Who is covered and what is covered
under the speech or debate clause?
Arguments:
For the petitioner, Mike Gravel:
The interrogation of Rodberg would violate the
speech or debate clause because its scope
extends to aides. The realities of the modern-
day legislative process require members of
Congress to seek advice and assistance from
their staff. Because forcing Rodberg to testify
would be tantamount to having Gravel do so,
both are protected.
Forcing Webber and the publisher of Beacon
Press to testify also would violate the speech or
debate clause. Gravel’s arrangements for
private publication of the documents come
under the protection of the speech or debate
clause because those documents had been
introduced in Congress.
For the respondent, United

States:
The language of the speech or debate clause,
past precedents, and the intent of the framers
all point to the same conclusion: its reach
covers neither congressional aides nor
arrangements with private publishers, even for
material introduced into a subcommittee
record.
Abuses can arise if members of the House and
Senate have the power to exempt others from
criminal or civil laws.
Opinion of the Court by Mr. Justice White . . .
[T]he United States strongly urges that because

the Speech or Debate Clause confers a privilege
only upon “Senators and Representatives,”
Rodberg himself has no valid claim to
constitutional immunity from grand jury inquiry. In
our view, both courts below correctly rejected this
position. We agree with the Court of Appeals that
for the purpose of construing the privilege a
Member and his aide are to be “treated as one.” . .
. [I]t is literally impossible, in view of the
complexities of the modern legislative process, . . .
for Members of Congress to perform their
legislative tasks without the help of aides and
assistants; the day-to-day work of such aides is so
critical to the Members’ performance that they
must be treated as the latter’s alter egos; and that
if they are not so recognized, the central role of
the Speech or Debate Clause—to prevent
intimidation of legislators by the Executive and
accountability before a possibly hostile judiciary—
will inevitably be diminished and frustrated. . . .
Rather than giving the clause a cramped

construction, the Court has sought to implement
its fundamental purpose of freeing the legislator
from executive and judicial oversight that
realistically threatens to control his conduct as a
legislator. We have little doubt that we are neither
exceeding our judicial powers nor mistakenly
construing the Constitution by holding that the
Speech or Debate Clause applies not only to a
Member but also to his aides insofar as the
conduct of the latter would be a protected
legislative act if performed by the Member
himself. . . .
The United States fears the abuses that history

reveals have occurred when legislators are
invested with the power to relieve others from the
operation of otherwise valid civil and criminal
laws. But these abuses . . . are for the most part
obviated if the privilege applicable to the aide is
viewed . . . as the privilege of the Senator, and
invocable only by the Senator or by the aide on
the Senator’s behalf, and if in all events the
privilege available to the aide is confined to those
services that would be immune legislative conduct
if performed by the Senator himself. This view
places beyond the Speech or Debate Clause a
variety of services characteristically performed by
aides for Members of Congress, even though
within the scope of their employment. It likewise
provides no protection for criminal conduct
threatening the security of the person or property
of others, whether performed at the direction of
the Senator in preparation for or in execution of a
legislative act or done without his knowledge or
direction. Neither does it immunize Senator or
aide from testifying at trials or grand jury
proceedings involving third-party crimes where
the questions do not require testimony about or
impugn a legislative act. Thus our refusal to
distinguish between Senator and aide in applying
the Speech or Debate Clause does not mean that
Rodberg is for all purposes exempt from grand
jury questioning.
We are convinced also that the Court of Appeals

correctly determined that Senator Gravel’s alleged
arrangement with Beacon Press to publish the
Pentagon Papers was not protected speech or
debate within the meaning of Art. I, §6, cl. 1, of
The heart of the Clause is speech or debate in

either House. Insofar as the Clause is construed to
reach other matters, they must be an integral part
of the deliberative and communicative processes
by which Members participate in committee and
House proceedings with respect to the
consideration and passage or rejection of
proposed legislation or with respect to other
matters which the Constitution places within the
jurisdiction of either House. As the Court of
Appeals put it, the courts have extended the
privilege to matters beyond pure speech or debate
in either House, but “only when necessary to
prevent indirect impairment of such
deliberations.”
Here, private publication by Senator Gravel

through the cooperation of Beacon Press was in no
way essential to the deliberations of the Senate;
nor does questioning as to private publication
threaten the integrity or independence of the
Senate by impermissibly exposing its deliberations
to executive influence. The Senator had conducted
his hearings; the record and any report that was
forthcoming were available both to his committee
and the Senate. Insofar as we are advised, neither
Congress nor the full committee ordered or
authorized the publication. We cannot but
conclude that the Senator’s arrangements with
Beacon Press were not part and parcel of the
legislative process. . . .
The Speech or Debate Clause does not in our view

extend immunity to Rodberg, as a Senator’s aide,
from testifying before the grand jury about the
arrangement between Senator Gravel and Beacon
Press or about his own participation, if any, in the
alleged transaction, so long as legislative acts of
the Senator are not impugned. . . .
Rodberg’s immunity . . . extends only to legislative

acts as to which the Senator himself would be
immune. The grand jury, therefore, if relevant to
its investigation into the possible violations of the
criminal law, . . . may require from Rodberg
answers to questions relating to his or the
Senator’s arrangements, if any, with respect to
republication or with respect to third-party
conduct under valid investigation by the grand
jury, as long as the questions do not implicate
legislative action of the Senator. Neither do we
perceive any constitutional or other privilege that
shields Rodberg, any more than any other witness,
from grand jury questions relevant to tracing the
source of obviously highly classified documents
that came into the Senator’s possession and are
the basic subject matter of inquiry in this case, as
long as no legislative act is implicated by the
questions.
Because the Speech or Debate Clause privilege
applies both to Senator and aide, it appears to us
that paragraph one of the order, alone, would
afford ample protection of the privilege if it
forbade questioning any witness, including
Rodberg: (1) concerning the Senator’s conduct, or
the conduct of his aides, at the June 29, 1971,
meeting of the subcommittee; (2) concerning the
motives and purposes behind the Senator’s
conduct, or that of his aides, at that meeting; (3)
concerning communications between the Senator
and his aides during the term of their employment
and related to said meeting or any other
legislative act of the Senator; (4) except as it
proves relevant to investigating possible third-
party crime, concerning any act, in itself not
criminal, performed by the Senator, or by his aides
in the course of their employment, in preparation
for the subcommittee hearing. We leave the final
form of such an order to the Court of Appeals in
the first instance, or, if that court prefers, to the
District Court.
The judgment of the Court of Appeals is vacated

and the cases are remanded to that court for
further proceedings consistent with this opinion.
So ordered.
MR. JUSTICE STEWART,

dissenting in part.
The Court . . . decides . . . that a Member of
Congress may, despite the Speech or Debate
Clause, be compelled to testify before a grand jury
concerning the sources of information used by him
in the performance of his legislative duties, if such
an inquiry “proves relevant to investigating
possible third-party crime.” In my view, this ruling
is highly dubious in view of the basic purpose of
the Speech or Debate Clause—“to prevent
intimidation [of members of Congress] by the
executive and accountability before a possibly
hostile judiciary.”
Under the Court’s ruling, a Congressman may be

subpoenaed by a vindictive Executive to testify
about informants who have not committed crimes
and who have no knowledge of crime. Such
compulsion can occur, because the judiciary has
traditionally imposed virtually no limitations on
the grand jury’s broad investigatory powers;
grand jury investigations are not limited in scope
to specific criminal acts, and standards of
materiality and relevance are greatly relaxed. But
even if the Executive had reason to believe that a
Member of Congress had knowledge of a specific
probable violation of law, it is by no means clear to
me that the Executive’s interest in the
administration of justice must always override the
public interest in having an informed Congress.
Why should we not, given the tension between two
competing interests, each of constitutional
dimensions, balance the claims of the Speech or
Debate Clause against the claims of the grand jury
in the particularized contexts of specific cases?
And why are not the Houses of Congress the
proper institutions in most situations to impose
sanctions upon a Representative or Senator who
withholds information about crime acquired in the
course of his legislative duties?
MR. JUSTICE BRENNAN, with
whom MR. JUSTICE DOUGLAS,
and MR. JUSTICE MARSHALL,
join, dissenting.
My concern is with the narrow scope accorded the
Speech or Debate Clause by today’s decision. I
fully agree with the Court that a Congressman’s
immunity under the Clause must also be extended
to his aides if it is to be at all effective. . . .
[But] in holding that Senator Gravel’s alleged

arrangement with Beacon Press to publish the
Pentagon Papers is not shielded from extra-
senatorial inquiry by the Speech or Debate Clause,
the Court adopts what for me is a far too narrow
view of the legislative function. The Court seems
to assume that words spoken in debate or written
in congressional reports are protected by the
Clause, so that if Senator Gravel had recited part
of the Pentagon Papers on the Senate floor or
copied them into a Senate report, those acts could
not be questioned “in any other Place.” Yet
because he sought a wider audience, to publicize
information deemed relevant to matters pending
before his own committee, the Senator suddenly
loses his immunity and is exposed to grand jury
investigation and possible prosecution for the
republication. The explanation for this anomalous
result is the Court’s belief that “Speech or
Debate” encompasses only acts necessary to the
internal deliberations of Congress concerning
proposed legislation. “Here,” according to the
Court, “private publication by Senator Gravel
through the cooperation of Beacon Press was in no
way essential to the deliberations of the Senate.”
Therefore, “the Senator’s arrangements with
Beacon Press were not part and parcel of the
legislative process.”
Thus, the Court excludes from the sphere of

protected legislative activity a function that I had
supposed lay at the heart of our democratic
system. I speak, of course, of the legislator’s duty
to inform the public about matters affecting the
administration of government. That this
“informing function” falls into the class of things
“generally done in a session of the House by one
of its members in relation to the business before
it,” Kilbourn v. Thompson (1881), was explicitly
acknowledged by the Court in Watkins v. United
States (1957). In speaking of the “power of the
Congress to inquire into and publicize corruption,
maladministration or inefficiency in agencies of
the Government,” the Court noted that “from the
earliest times in its history, the Congress has
assiduously performed an ‘informing function’ of
this nature.”
We need look no further than Congress itself to

find evidence supporting the Court’s observation
in Watkins. Congress has provided financial
support for communications between its Members
and the public, including the franking privilege for
letters, telephone and telegraph allowances,
stationery allotments, and favorable prices on
reprints from the Congressional Record.
Congressional hearings, moreover, are not
confined to gathering information for internal
distribution, but are often widely publicized,
sometimes televised, as a means of alerting the
electorate to matters of public import and
concern. The list is virtually endless, but a small
sampling of contemporaneous hearings of this
kind would certainly include . . . the 1966 hearings
on automobile safety and the numerous hearings
of the Senate Foreign Relations Committee on the
origins and conduct of the war in Vietnam. In
short, there can be little doubt that informing the
electorate is a thing “generally done” by the
Members of Congress “in relation to the business
before it.” . . .
Unlike the Court, therefore, I think that the

activities of Congressmen in communicating with
the public are legislative acts protected by the
Speech or Debate Clause. I agree with the Court
that not every task performed by a legislator is
privileged; intervention before Executive
departments is one that is not. But the informing
function carries a far more persuasive claim to the
protections of the Clause. It has been recognized
by this Court as something “generally done” by
Congressmen, the Congress itself has established
special concessions designed to lower the cost of
such communication, and, most important, the
function furthers several well-recognized goals of
representative government. To say in the face of
these facts that the informing function is not
privileged merely because it is not necessary to
the internal deliberations of Congress is to give
the Speech or Debate Clause an artificial and
narrow reading unsupported by reason.
Gravel provided some guidance for legislators: the
speech or debate clause gave similar protection to
the senator and the aide, but that protection was not
absolute. Both senator and aide could be questioned
for activities that had no direct connection to or
“impinged upon” the legislative process. As for
Senator Gravel, he went on to advocate some rather
controversial ideas and, in 1980, lost his party’s
nomination for a third term (see Box 3-3).
Despite the specificity of the Court’s ruling in

Gravel, it did not put an end to controversies over
the speech or debate clause. Indeed, as illustrated in
Table 3-3, in the 1970s the Court decided several
important issues that were left open by Gravel. In
United States v. Helstoski (1979) the justices refused
to allow prosecutors to introduce evidence into a
court proceeding against a former member of
Congress involving legislative activities.
Hutchinson v. Proxmire (1979), however, was a
defeat for congressional authority. Here, the Court
examined a dispute arising when Senator William
Proxmire (D-Wis.) on the floor of the Senate and
later in a newsletter and on television, labeled
Ronald R. Hutchinson’s federally funded research
virtually worthless and a waste of taxpayer money.
Hutchinson brought a libel suit against Proxmire;
when the case reached the Court the justices
addressed the issue of whether the speech or debate
clause immunized the senator from a libel
proceeding on the ground that he had first made the
remarks on the chamber’s floor. The Court held that
it did not:
A speech by Proxmire in the Senate would be

wholly immune and would be available to other
Members of Congress and the public in the
Congressional Record. But neither the
newsletters nor the press release was “essential
to the deliberations of the Senate,” and neither
was part of the deliberative process.
Box 3-3 Aftermath . . . Mike Gravel
Mike Gravel, who gained national attention with

his 1971 release of the classified Pentagon Papers,
has led a rather eccentric life advocating political
causes ranging from the conventionally liberal to
the quixotic.
Born in 1930, Gravel grew up in Massachusetts,

where his father owned a construction company.
After serving in the army from 1951 to 1954, he
earned an economics degree from Columbia
University and was eager to pursue a political
career. Believing his options were limited on the
East Coast, Gavel decided to relocate to the
Alaska Territory, where he reasoned that a person
without political and family connections had a
better opportunity to make his political mark.
After two unsuccessful races for local office, he
was elected as a Democrat to the Alaska House of
Representatives in 1963 and only two years later
became Speaker. In 1968 he won the first of his
two terms in the U.S. Senate. During his Senate
tenure he was active in getting approval for the
Alaska oil pipeline and helping settle the Alaska
native land claims. But Gravel became better
known as a vocal and harsh critic of the Vietnam
War and a proponent of ending the draft.
During his career he advocated the legalization of

drugs and same-sex marriage, the abolition of the
Internal Revenue Service, the ending of free trade
agreements, federally funded college tuition, and
reform of the nation’s health care system. Many of
his ideas, regarded as impractical and extreme at
the time, have become part of the progressive
mainstream today. Other notions have not, such as
his belief that extraterrestrial beings are
continuously monitoring our planet.
His positions became increasingly unpopular

among Alaskans, and he failed to build a firm
political base in his home state. As a consequence,
Gravel lost his party’s nomination for a third term
in 1980, after which his life went into a tailspin
that lasted for the next two decades. Business
ventures failed, his health deteriorated, his first
marriage ended, and he suffered bankruptcy.
Gravel, however, emerged from obscurity in 2008

when he announced his candidacy for the
Democratic presidential nomination. He ran an
unorthodox campaign characterized by quirky
video advertising. Remaining loyal to his 1960s
political orientation, he viciously attacked the Iraq
war and argued for the adoption of a national
initiative procedure to give democratic power
directly to the people. Support for his presidential
campaign never exceeded 1 percent of polled
voters, and before the primaries ended he left the
Democratic Party and became a Libertarian.
In 2014 Gravel joined Cannabis Sativa, Inc., as

chief executive officer of its KUSH and THC
Farmaceuticals subsidiaries. These businesses are
devoted to the development and marketing of
innovative hemp and marijuana products for
medicinal and recreational use.
Sources: Biography.com; Charles Wohlforth,

“Some of This Former Alaska Senator’s Ideas
Maybe Weren’t So Crazy after All,” Anchorage
Daily News, April 25, 2016; Alaska Business
Monthly, September 3, 2016; Business Wire,
December 30, 2014; Baystreet, June 1, 2015.
Since Proxmire, speech or debate clause cases have

not occupied much of the justices’ attention, though
exceptions occasionally arise. In 2008 the Justice
Department asked the Court to review a decision by
the U.S. Court of Appeals for the District of
Columbia, holding that the speech or debate clause
gave members of Congress some protection against
searches—with warrants—of their congressional
offices. The Justice Department was investigating
Representative William Jefferson (D-La.) for
allegedly taking bribes, and claimed that the court’s
ruling would impede its ability to enforce federal law
against Jefferson and other lawmakers. The Supreme
Court declined to hear the case, United States v.
Rayburn House Office Building Room 2113.
Legislative Powers: Sources and

Scope
Section 8 of Article I contains a virtual laundry list of
Congress’s powers. These enumerated powers,
covered in seventeen clauses, establish
congressional authority to regulate commerce, to lay
and collect taxes, to establish post offices, and so
forth.
These enumerated powers qua powers pose few

constitutional problems: because the Constitution
names them, Congress clearly possesses them. It is
when Congress exercises these powers that
questions can emerge. Some questions hinge on how
to define the power—for example, Congress has the
power to “regulate commerce among the states,” but
what does “commerce” mean? Other questions focus
on whether congressional use of an enumerated
power violates other constitutional provisions—say,
the First Amendment or, more relevant to this
volume, structures underlying the Constitution, such
as the separation of powers system or federalism.
Table 3-3Gravel v. United States
But what of other sources of legislative authority?

For example, does the legislative branch have
powers beyond those explicitly specified in the
Constitution? Even though the framers may have left
this question unaddressed, the Court has answered
it affirmatively. As Table 3-4 shows, the Court has
suggested that Congress possesses implied and
inherent powers in addition to those explicitly
mentioned in Article I. The Court has also
acknowledged that Congress has the power to
enforce certain constitutional amendments but that
this power stems from language in the Constitution
—though in specific amendments, not in Article I,
Section 8. For example, the Thirteenth Amendment,
which outlaws slavery, says that “Congress shall
have power to enforce this article by appropriate
legislation.” In this section, we examine the cases in
which the Court has delineated and interpreted
these powers.
We also explore constraints on Congress’s ability to

exercise these powers. Just as the Court has placed
limits on congressional exercise of its enumerated
powers, it has constrained Congress’s use of these
others. For example, the Court has permitted
Congress to conduct hearings and investigations (an
unenumerated power), but it also has asserted that
the power is not unlimited, that certain restrictions
apply.
As you read the next cases, keep in mind not only

the sources of legislative power but also its scope.
What limits has the Court placed on Congress and,
more important, why? What pressures have been
brought to bear on the justices in making their
decisions?
Table 3-4
Source: Adapted from Sue Davis and J. W.

Peltason, Corwin and Peltason’s Understanding
the Constitution, 16th ed. (Belmont, CA:
Wadsworth, 2004), 126.
Some analysts suggest that Congress also

possesses resulting powers (those that result
when several enumerated powers are added
together) and inherited powers (those that
Congress inherited from the British Parliament,
such as the power to investigate).
Enumerated and Implied Powers

The Constitution’s specific list of congressional
powers leaves no doubt that Congress has these
powers. In Gibbons v. Ogden (1824), when the Court
was asked to interpret one of its powers, the power
to regulate interstate commerce, Chief Justice John
Marshall said,
The words [of the Constitution] are, “Congress

shall have power to regulate commerce with
foreign nations, and among the several States. . .
. ” The subject to be regulated is commerce, and
our constitution being . . . one of enumeration,
and not of definition, to ascertain the extent of
the power, it becomes necessary to settle the
meaning of the word [our italics].
In these two sentences, Marshall asserted that

Congress indeed has the enumerated power to
regulate commerce but that the Court needed to
define what that power entails. This point is
important because the fact that a power is written
into the Constitution does not necessarily make the
Court’s task easier: often it must define how
Congress can and cannot make use of that power, as
we just suggested. Equally important, recall, is that
Congress exercise its powers in ways that do not
violate other constitutional provisions or doctrines.
In the chapters to come we consider these two

issues as they relate to Congress’s enumerated
powers to regulate commerce and to tax, among
others. Suffice it to say for now that virtually no
debate ever occurs over whether, in fact, Congress
has the powers contained in Article I, Section 8.
Necessary and Proper Clause.

The question that does deserve attention is whether
Congress has more powers, or was intended to have
more powers, than those specifically granted. And if
so, how broad should they be? Those who look to the
plain language of the Constitution or to the intent of
the framers find few concrete answers, although
both camps would point to the same clause. Article I,
Section 8, Clause 18, provides that Congress shall
have the power “to make all Laws which shall be
necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United
States, or in any Department or Officer thereof.”
Called by various names—the necessary and proper

clause, the elastic clause, the sweeping clause—this
provision was the subject of heated debate early in
the nation’s history. Many affiliated with the
Federalist Party, which favored a strong national
government, argued for a loose construction of the
clause; in their view, the framers inserted it into the
Constitution to provide Congress with some
“flexibility.” In other words, Congress could exercise
powers beyond those listed in the Constitution, those
that were “necessary and proper” for implementing
legislative activity. The Jeffersonians asserted the
need for a strict interpretation of the clause; in their
view, it constricted rather than expanded
congressional powers. In other words, under the
necessary and proper clause Congress could
exercise only that power necessary to carry out its
enumerated functions.
Which view would the Supreme Court adopt? Would

it interpret the necessary and proper clause strictly
or loosely? This was one of two major questions at
the core of McCulloch v. Maryland (1819),16 which
many scholars consider the Court’s most important
explication of congressional powers. As you read this
case, consider not only the Court’s holding but also
the language and logic of McCulloch. Why is it
regarded as such a landmark decision?
16 The other question involved federalism. See

Chapter 6.
Box 3-4 Jefferson and Hamilton on the Bank of

the United States
Opinion on the Constitutionality

of a National Bank (1791)
Thomas Jefferson
To take a single step beyond the boundaries . . .
specially drawn around the powers of Congress, is
to take possession of a boundless field of power,
no longer susceptible of any definition.
The incorporation of a bank, and other powers
assumed by this bill have not, in my opinion, been
delegated to the U.S. by the Constitution.
1. They are not among the powers specially

enumerated, for these are
1. A power to lay taxes for the purpose of
paying the debts of the U.S. But no debt is
paid by this bill, nor any tax laid. . . .
2. to borrow money.” But this bill neither
borrows money, nor ensures the borrowing
of it. . . .
3. to regulate commerce with foreign nations,
and among the states, and with the Indian
tribes.” To erect a bank, and to regulate
commerce, are very different acts. . . . ”
2. Nor are they within either of the general
phrases, which are the two following.
1. To lay taxes to provide for the general
welfare of the U.S.” that is to say “to lay
taxes for the purpose of providing for the
general welfare.” For the laying of taxes is
the power and the general welfare the
purpose for which the power is to be
exercised. They are not to lay taxes . . . for
any purpose they please; but only to pay
the debts or provide for the welfare of the
Union. In like manner they are not to do
anything they please to provide for the
general welfare, but only to lay taxes for
that purpose. . . .
2. The second general phrase is “to make all
laws necessary and proper for carrying into
execution the enumerated powers.” But
they can all be carried into execution
without a bank. A bank therefore is not
necessary, and consequently not
authorised by this phrase.
It has been much urged that a bank will give great

facility, or convenience in the collection of taxes.
Suppose this were true: yet the constitution allows
only the means which are “necessary” not those
which are merely “convenient” for effecting the
enumerated powers. If such a latitude of
construction be allowed to this phrase as to give
any non-enumerated power, it will go to every one,
for there is no one which ingenuity may not
torture into a convenience, in some way or other,
to some one of so long a list of enumerated
powers. It would swallow up all the delegated
powers, and reduce the whole to one phrase as
before observed. Therefore it was that the
constitution restrained them to the necessary
means, that is to say, to those means without
which the grant of the power would be nugatory.
Opinion as to the
Constitutionality of the Bank of
the United States (1791)
Alexander Hamilton
[It seems to me] [t]hat every power vested in a

government is in its nature sovereign, and
includes, by force of the term, a right to employ all
the means requisite and fairly applicable to the
attainment of the ends of such power, and which
are not precluded by restrictions and exceptions
specified in the Constitution, or not immoral, or
not contrary to the essential ends of political
society. . . .
This general and indisputable principle puts at

once an end to the abstract question, whether the
United States have power to erect a corporation. .
. . [I]t is unquestionably incident to sovereign
power to erect corporations, and consequently to
that of the United States, in relation to the objects
intrusted to the management of the government. .
..
It is not denied that there are implied [as] well as

express powers, and that the . . . implied powers
are to be considered as delegated equally with
express ones. Then it follows, that as a power of
erecting a corporation may as well be implied as
any other thing, it may as well be employed as an
instrument or mean of carrying into execution any
of the specified powers, as any other instrument
or mean whatever. The only question must be . . .
whether the mean to be employed or in this
instance, the corporation to be erected, has a
natural relation to any of the acknowledged
objects or lawful ends of the government. Thus a
corporation may not be erected by Congress for
superintending the police of the city of
Philadelphia, because they are not authorized to
regulate the police of that city. But one may be
erected in relation to the collection of taxes, or to
the trade with foreign countries, or to the trade
between the States, or with the Indian tribes;
because it is the province of the federal
government to regulate those objects, and
because it is incident to a general sovereign or
legislative power to regulate a thing, to employ all
the means which relate to its regulation to the
best and greatest advantage. . . .
To this mode of reasoning respecting the right of

employing all the means requisite to the execution
of the specified powers of the government, it is
objected, that none but necessary and proper
means are to be employed; and the Secretary of
State maintains, that no means are to be
considered as necessary but those without which
the grant of the power would be nugatory. . . .
It is essential to the being of the national

government, that so erroneous a conception of the
meaning of the word necessary should be
exploded. Necessary often means no more than
needful, requisite, incidental, useful, or conducive
to. It is a common mode of expression to say, that
it is necessary for a government or a person to do
this or that thing, when nothing more is intended
or understood, than that the interests of the
government or person require, or will be
promoted by, the doing of this or that thing.
The imagination can be at no loss for

exemplifications of the use of the word in this
sense. And it is the true one in which it is to be
understood as used in the Constitution. The whole
turn of the clause containing it indicates, that it
was the intent of the Convention, by that clause,
to give a liberal latitude to the exercise of the
specified powers. The expressions have peculiar
comprehensiveness. They are thought to make all
laws necessary and proper for carrying into
execution the foregoing powers. . . .
To understand the word as the Secretary of State
does, would be to depart from its obvious and
popular sense, and to give it a restrictive
operation, an idea never before entertained. It
would be to give it the same force as if the word
absolutely or indispensably had been prefixed to
it.
Such a construction would beget endless

uncertainty and embarrassment. The cases must
be palpable and extreme, in which it could be
pronounced, with certainty, that a measure was
absolutely necessary, or one, without which, the
exercise of a given power would be nugatory.
There are few measures of any government which
would stand so severe a test. . . .
The only question is, whether [the government]

has a right to [create the bank], in order to enable
it the more effectually to accomplish ends which
are in themselves lawful.
[A bank relates] to the power of collecting taxes,

to that of borrowing money, to that of regulating
trade between the States, and to those of raising
and maintaining fleets and armies. To the two
former the relation may be said to be immediate; .
. . and that it is clearly within the provision which
authorizes the making of all needful rules and
regulations.
Source: Yale Law School, Lillian Goldman Law

Library, The Avalon Project,
http://avalon.law.yale.edu/18th_century/bank-
ah.asp.
McCulloch v. Maryland 17 U.S. (4 Wheat.) 316
(1819)
court/17/316.html
Vote: 6 (Duvall, Johnson, Livingston, Marshall,

Story, Washington)

NOT PARTICIPATING: Todd
Facts:
Although Americans take for granted the power of
the federal government to operate a banking
system—today called the Federal Reserve System
—in the late eighteenth and early nineteenth
centuries this topic was a political battleground.
The first sign of controversy appeared in 1791
when George Washington’s secretary of the
Treasury, Alexander Hamilton, asked Congress to
adopt a comprehensive economic plan for the new
nation. Among the proposals was the creation of a
Bank of the United States, which would receive
deposits, disburse funds, and make loans;
Congress responded with a bill authorizing the
first federal bank.
When the bill arrived at President Washington’s

desk, however, he did not sign it immediately. He
wanted to ascertain whether in fact Congress
could create a bank, since it lacked explicit
constitutional authority to do so. To this end he
asked Hamilton, Secretary of State Thomas
Jefferson, and Attorney General Edmund Randolph
for their opinions on the bank’s constitutionality.
Box 3-4 presents excerpts of Hamilton’s and

Jefferson’s responses. We offer them not only
because the two men reached different
conclusions—Hamilton argued that the bank was
constitutional, Jefferson that it was not—but also
because the arguments represent the classic
competing theories of congressional power. As
historian Melvin I. Urofsky puts it, “Where
Jefferson . . . argued that Congress could only do
what the Constitution expressly permitted it do,
Hamilton claims that Congress could do
everything except what the Constitution
specifically forbade.”17 The debates may also
suggest the limits of originalism as a method of
constitutional interpretation. Does it seem odd
that just four years after the writing of the
Constitution, two of the nation’s foremost leaders
could have such different views? In his argument,
Hamilton, in fact, noted that there was a
“conflicting recollection” of a convention debate
highly relevant to the bank issue.18 In the end,
Hamilton persuaded the president to sign the bill.
Congress then created the First Bank of the
United States in 1791 and granted it a twenty-year
charter.
17 Melvin I. Urofsky, Supreme Decisions: Great

Constitutional Cases and Their Impact (Boulder,
CO: Westview Press, 2012), 19.
18 The framers rejected a proposal that would
have allowed Congress to establish corporations in
part because of the possibility that Congress
would create banks. See Jethro K. Lieberman,
Milestones! (St. Paul, MN: West, 1976), 19. Still,
Hamilton argued that debate was unclear.
Nevertheless, the bank controversy did not

disappear. As we illustrate in Figure 3-1, which
superimposes the bank’s history (and that of its
successor) on concurrent political and economic
events, it is clear why the bank remained in the
spotlight. Chiefly it became a symbol of the loose-
construction, nationally oriented Federalist Party,
which had lost considerable power from its heyday
in the 1790s. Indeed, at the close of the
eighteenth century, a strict-construction approach
to congressional power was among the primary
ideas endorsed by the Federalists’ competitors,
the Jeffersonian Republicans. Even though the
bank had done an able job, to no one’s surprise
the Republican Congress refused to renew its
charter in 1811.
After the War of 1812, it became apparent even to

the Republicans that Congress should recharter
the bank. During the war the lack of a national
bank for purposes of borrowing money and
transferring funds became a source of
embarrassment to the administration. Moreover,
with the absence of a federal bank, state-
chartered institutions flooded the market with
worthless notes, contributing to economic
problems throughout the country. Amid renewed
controversy and cries for strict constructionism,
Congress in 1816 created the Second Bank of the
United States, granting it a twenty-year charter
and $35 million in capital (about $603 million
today).
Figure 3-1 The History of the First and Second

Banks of the United States
Source: Data from U.S. Department of

Commerce, Historical Statistics of the United
States (Washington, DC: U.S. Bureau of the
Census, 1975), 1104.
Some scholars have suggested that a challenge to

the new bank was inevitable, primarily because
the Supreme Court had never decided whether the
first bank was constitutional. It is possible,
however, that litigation would not have
materialized had the second bank performed as
well as its predecessor did, but it did not. It
flourished during the postwar economic boom,
mainly because it was fiscally aggressive and
encouraged speculative investing. These practices
caught up to bank officials when, in 1818, in
anticipation of a recession, they began calling in
the bank’s outstanding loans. As a result, they
caused overextended banks to fail throughout the
South and West. To make matters worse,
accusations of fraud and embezzlement were
rampant in several of the bank’s eighteen
branches, particularly in Maryland, Pennsylvania,
and Virginia. Among those most seriously
implicated was James McCulloch, the cashier of
the Baltimore branch bank and its main lobbyist in
Washington. According to some accounts, his
illegal financial schemes had cost the branch more
than $1 million.
In response to these allegations, Congress began

to hold hearings on the bank, and some states
reacted by attempting to regulate branches
located within their borders. Maryland mandated
that branches of the bank in the state pay either a
2 percent tax on all banknotes or a fee of $15,000.
When a state official came to collect from the
Baltimore branch, McCulloch refused to pay and,
by refusing, set the stage for a monumental
confrontation between the United States and
Maryland on not one but two major issues. The
first involved the bank itself: Whether Congress, in
the absence of an explicit constitutional
authorization, has the power to charter the bank;
and that is the subject of the excerpt below. The
second question—whether the state exceeded its
powers by seeking to tax a federal entity—we take
up in Chapter 6, on federalism.
By the time the case reached the Supreme Court,
it was clear that something significant was going
to happen. The Court reporter noted that
McCulloch involved “a constitutional question of
great importance.” The justices waived their rule
that permitted only two attorneys per side “and
allowed three each.”19 Oral arguments took nine
days.
19 Quoted in Fred W. Friendly and Martha J. H.

Elliot, The Constitution: That Delicate Balance
(New York: Random House, 1984), 256.
Both sides were ably represented. Some

commentators praise Daniel Webster’s oratory for
the federal government’s side as extraordinary,
and we enumerate some of his claims below. But it
was former attorney general and U.S. senator
William Pinkney with whom the Court was most
taken. Justice Joseph Story said later, “I never, in
my whole life, heard a greater speech.”20 Even so,
the gist of his arguments (and those of his
colleagues) was familiar stuff; Pinkney largely
reiterated Hamilton’s original defense of the bank,
particularly his interpretation of the necessary
and proper clause.
20 Quoted in Lieberman, Milestones!, 122.
Maryland’s legal representation may have

appeared less astute. According to one account,
“it has been rumored” that one of the state’s
lawyers, Attorney General Luther Martin, “was
drunk when he made his two-day-long argument.
If he was, it apparently did not affect his acuity.”
For his side, he reiterated parts of Jefferson’s
argument against the bank, added some on the
subject of states’ rights, and read some of the
speeches John Marshall had delivered at the
Virginia convention.21 Another attorney for the
state, Joseph Hopkinson, took a somewhat
different tack. He argued that the bank might
have been useful when it was first created but that
it is no longer necessary what with the existence
of many other financial institutions.

Constitution, 357.
Arguments:
For the plaintiff in error, James
McCulloch:
The question of whether Congress
constitutionally possesses the power to
incorporate a bank arose after the adoption of
the Constitution and was settled in the First
Congress after extensive discussion.
Arguments in the bank’s favor were presented,
with force, by Secretary of the Treasury
Alexander Hamilton in his report to the
president of the United States.
Many of those who initially doubted the
existence of the power to create the bank now
view it as a settled question. Because all the
branches of government have been operating
under the assumption that the bank is
constitutional, it would seem almost too late to
call it into question unless its repugnancy with
the Constitution were plain.
The bank’s constitutionality is beyond dispute.
Congress is authorized to pass all laws
“necessary and proper” to carry into execution
the powers conferred on it. These words,
“necessary and proper” should be considered
as synonymous. Necessary powers must mean
such powers as are suitable and fitted to the
object, the best and most useful in relation to
the end proposed.
A bank is a proper and suitable instrument to
assist the operations of the government, in the
collection and disbursement of revenue; in the
occasional anticipations of taxes and imposts;
and in the regulation of the actual currency, as
being a part of the trade and exchange
between the states.
For the defendant in error, State

of Maryland et al.:
The question of whether Congress has the
constitutional power to incorporate the bank of
the United States has, for many years, been
the subject of debate. Simply because the
bank has existed for a long time does not
mean that the subject is closed.
It is agreed that no such power is expressly
granted by the Constitution. It has been
obtained by implication and asserted to exist,
not of and by itself, but as an appendage to
other granted powers, as necessary to carry
them into execution. If the bank is not
“necessary and proper” for this purpose, it has
no foundation in our Constitution, and can
have no support in this Court.
A power, growing out of a necessity that may
not be permanent, may also not be permanent.
It relates to circumstances that change, in a
state of things that may exist at one period
and not at another. The argument might have
been perfectly good, to show the necessity of a
bank in 1791, and entirely fail now, when so
many facilities for financial transactions
abound, which did not exist then.
Chief Justice Marshall Delivered the Opinion

of the Court.
The constitution of our country, in its most

interesting and vital parts, is to be considered; the
conflicting powers of the government of the Union
and of its members, as marked in that
constitution, are to be discussed; and an opinion
given, which may essentially influence the great
operations of the government. No tribunal can
approach such a question without a deep sense of
its importance, and of the awful responsibility
involved in its decision. But it must be decided
peacefully, or remain a source of hostile
legislation, perhaps of hostility of a still more
serious nature; and if it is to be so decided, by this
tribunal alone can the decision be made. On the
Supreme Court of the United States has the
constitution of our country devolved this
important duty.
The first question . . . is, has Congress power to

incorporate a bank? . . .
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. But the question respecting
the extent of the powers actually granted, is
perpetually arising, and will probably continue to
arise, as long as our system shall exist. . . .
Among the enumerated powers, we do not find

that of establishing a bank or creating a
corporation. But there is no phrase in the
instrument which, like the articles of
confederation, excludes incidental or implied
powers; and which requires that everything
granted shall be expressly and minutely described.
Even the 10th amendment, which was framed for
the purpose of quieting the excessive jealousies
which had been excited, omits the word
“expressly,” and declares only that the powers
“not delegated to the United States, nor
prohibited to the states, are reserved to the states
or to the people;” thus leaving the question,
whether the particular power which may become
the subject of contest has been delegated to the
one government, or prohibited to the other, to
depend on a fair construction of the whole
instrument. . . . A constitution, to contain an
accurate detail of all the subdivisions of which its
great powers will admit, and of all the means by
which they may be carried into execution, would
partake of a prolixity of a legal code, and could
scarcely be embraced by the human mind. It
would probably never be understood by the public.
Its nature, therefore, requires, that only its great
outlines should be marked, its important objects
designated, and the minor ingredients which
compose those objects be deduced from the
nature of the objects themselves. That this idea
was entertained by the framers of the American
constitution, is not only to be inferred from the
nature of the instrument, but from the language.
Why else were some of the limitations, found in
the ninth section of the 1st article, introduced? It
is also, in some degree, warranted by their having
omitted to use any restrictive term which might
prevent its receiving a fair and just interpretation.
In considering this question, then, we must never
forget that it is a constitution we are expounding.
Although, among the enumerated powers of

government, we do not find the word “bank” or
“incorporation,” we find the great powers to lay
and collect taxes; to borrow money; to regulate
commerce; to declare and conduct a war; and to
raise and support armies and navies. The sword
and the purse, all the external relations, and no
inconsiderable portion of the industry of the
nation, are entrusted to its government. It can
never be pretended that these vast powers draw
after them others of inferior importance, merely
because they are inferior. Such an idea can never
be advanced. But it may with great reason be
contended, that a government, entrusted with
such ample powers, on the due execution of which
the happiness and prosperity of the nation so
vitally depends, must also be entrusted with ample
means for their execution. The power being given,
it is the interest of the nation to facilitate its
execution. It can never be their interest, and
cannot be presumed to have been their intention,
to clog and embarrass its execution, by
withholding the most appropriate means.
Throughout this vast republic, from the St. Croix
to the Gulf of Mexico, from the Atlantic to the
Pacific, revenue is to be collected and expended,
armies are to be marched and supported. The
exigencies of the nation may require, that the
treasure raised in the north should be transported
to the south, that raised in the east, conveyed to
the west, or that this order should be reversed. Is
that construction of the constitution to be
preferred, which would render these operations
difficult, hazardous and expensive? Can we adopt
that construction (unless the words imperiously
require it), which would impute to the framers of
that instrument, when granting these powers for
the public good, the intention of impeding their
exercise, by withholding a choice of means?
It is not denied, that the powers given to the

government imply the ordinary means of
execution. That, for example, of raising revenue,
and applying it to national purposes, is admitted
to imply the power of conveying money from place
to place, as the exigencies of the nation may
require, and of employing the usual means of
conveyance. But it is denied, that the government
has its choice of means; or, that it may employ the
most convenient means, if, to employ them, it be
necessary to erect a corporation. On what
foundation does this argument rest? On this alone:
the power of creating a corporation, is one
appertaining to sovereignty, and is not expressly
conferred on congress. This is true. But all
legislative powers appertain to sovereignty.
The creation of a corporation, it is said, appertains

to sovereignty. This is admitted. . . . The power of
creating a corporation, though appertaining to
sovereignty, is not, like the power of making war
or levying taxes or of regulating commerce, a
great substantive and independent power which
cannot be implied as incidental to other powers or
used as a means of executing them. It is never the
end for which other powers are exercised, but a
means by which other objects are accomplished. .
. . The power of creating a corporation is never
used for its own sake, but for the purpose of
effecting something else. No sufficient reason is
therefore perceived why it may not pass as
incidental to those powers which are expressly
given if it be a direct mode of executing them.
But the constitution of the United States has not

left the right of Congress to employ the necessary
means for the execution of the powers conferred
on the government to general reasoning. To its
enumeration of powers is added that of making
“all laws which shall be necessary and proper, for
carrying into execution the foregoing powers, and
all other powers vested by this constitution, in the
government of the United States, or in any
department thereof.”
The counsel for the State of Maryland have urged

various arguments, to prove that this clause,
though in terms a grant of power, is not so in
effect; but is really restrictive of the general right,
which might otherwise be implied, of selecting
means for executing the enumerated powers. . . .
The word “necessary” is considered as controlling

the whole sentence, and as limiting the right to
pass laws for the execution of the granted powers,
to such as are indispensable, and without which
the power would be nugatory. That it excludes the
choice of means, and leaves to Congress, in each
case, that only which is most direct and simple.
Is it true that this is the sense in which the word

“necessary” is always used? Does it always import
an absolute physical necessity, so strong that one
thing, to which another may be termed necessary,
cannot exist without that other? We think it does
not. If reference be had to its use, in the common
affairs of the world, or in approved authors, we
find that it frequently imports no more than that
one thing is convenient, or useful, or essential to
another. To employ the means necessary to an
end, is generally understood as employing any
means calculated to produce the end, and not as
being confined to those single means, without
which the end would be entirely unattainable. . . .
Almost all compositions contain words which,
taken in their rigorous sense, would convey a
meaning different from that which is obviously
intended. It is essential to just construction that
many words which import something excessive
should be understood in a more mitigated sense—
in that sense which common usage justifies. The
word “necessary” is of this description. It has not
a fixed character peculiar to itself. It admits of all
degrees of comparison, and is often connected
with other words which increase or diminish the
impression the mind receives of the urgency it
imports. A thing may be necessary, very necessary,
absolutely or indispensably necessary. To no mind
would the same idea be conveyed by these several
phrases. The comment on the word is well
illustrated by the passage cited at the bar from the
10th section of the 1st article of the Constitution.
It is, we think, impossible to compare the sentence
which prohibits a State from laying “imposts, or
duties on imports or exports, except what may be
absolutely necessary for executing its inspection
laws,” with that which authorizes Congress “to
make all laws which shall be necessary and proper
for carrying into execution” the powers of the
General Government without feeling a conviction
that the convention understood itself to change
materially the meaning of the word “necessary,”
by prefixing the word “absolutely.” This word,
then, like others, is used in various senses, and, in
its construction, the subject, the context, the
intention of the person using them are all to be
taken into view.
Let this be done in the case under consideration.

The subject is the execution of those great powers
on which the welfare of a nation essentially
depends. It must have been the intention of those
who gave these powers, to insure, as far as human
prudence could insure, their beneficial execution.
This could not be done by confiding the choice of
means to such narrow limits as not to leave it in
the power of Congress to adopt any which might
be appropriate, and which were conducive to the
end. This provision is made in a constitution
intended to endure for ages to come, and,
consequently, to be adapted to the various crises
of human affairs. To have prescribed the means by
which government should, in all future time,
execute its powers, would have been to change,
entirely, the character of the instrument, and give
it the properties of a legal code. It would have
been an unwise attempt to provide, by immutable
rules, for exigencies which, if foreseen at all, must
have been seen dimly, and which can be best
provided for as they occur. To have declared that
the best means shall not be used, but those alone
without which the power given would be nugatory,
would have been to deprive the legislature of the
capacity to avail itself of experience, to exercise
its reason, and to accommodate its legislation to
circumstances. If we apply this principle of
construction to any of the powers of the
government, we shall find it so pernicious in its
operation that we shall be compelled to discard it.
...
So, with respect to the whole penal code of the

United States: whence arises the power to punish,
in cases not prescribed by the constitution? All
admit, that the government may, legitimately,
punish any violation of its laws; and yet, this is not
among the enumerated powers of congress. . . .
Take, for example, the power ‘to establish post-

offices and post- roads.’ This power is executed, by
the single act of making the establishment. But,
from this has been inferred the power and duty of
carrying the mail along the post-road, from one
post-office to another. And from this implied
power, has again been inferred the right to punish
those who steal letters from the post-office, or rob
the mail. It may be said, with some plausibility,
that the right to carry the mail, and to punish
those who rob it, is not indispensably necessary to
the establishment of a post-office and post-road.
This right is indeed essential to the beneficial
exercise of the power, but not indispensably
necessary to its existence. . . .
The baneful influence of this narrow construction

on all the operations of the government, and the
absolute impracticability of maintaining it without
rendering the government incompetent to its
great objects, might be illustrated by numerous
examples drawn from the constitution, and from
our laws. . . .
In ascertaining the sense in which the word

“necessary” is used in this clause of the
constitution, we may derive some aid from that
with which it is associated. Congress shall have
power “to make all laws which shall be necessary
and proper to carry into execution” the powers of
the government. If the word “necessary” was used
in that strict and rigorous sense for which the
counsel for the State of Maryland contend, it
would be an extraordinary departure from the
usual course of the human mind, as exhibited in
composition, to add a word, the only possible
effect of which is to qualify that strict and rigorous
meaning; to present to the mind the idea of some
choice of means of legislation not straightened
and compressed within the narrow limits for
which gentlemen contend. . . .
We admit, as all must admit, that the powers of

the government are limited, and that its limits are
not to be transcended. But we think the sound
construction of the constitution must allow to the
national legislature that discretion, with respect to
the means by which the powers it confers are to
be carried into execution, which will enable that
body to perform the high duties assigned to it, in
the manner most beneficial to the people. Let the
end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate,
which are plainly adapted to that end, which are
not prohibited, but consist with the letter and
spirit of the constitution, are constitutional.
That a corporation must be considered as a means

not less usual, not of higher dignity, not more
requiring a particular specification than other
means, has been sufficiently proved. . . .
If a corporation may be employed indiscriminately

with other means to carry into execution the
powers of the government, no particular reason
can be assigned for excluding the use of a bank, if
required for its fiscal operations. To use one, must
be within the discretion of Congress, if it be an
appropriate mode of executing the powers of
government. That it is a convenient, a useful, and
essential instrument in the prosecution of its fiscal
operations, is not now a subject of controversy. All
those who have been concerned in the
administration of our finances, have concurred in
representing the importance and necessity; and so
strongly have they been felt, that statesmen of the
first class, whose previous opinions against it had
been confirmed by every circumstance which can
fix the human judgment, have yielded those
opinions to the exigencies of the nation. Under the
confederation, Congress, justifying the measure
by its necessity, transcended perhaps its powers to
obtain the advantage of a bank; and our own
legislation attests the universal conviction of the
utility of this measure. The time has passed away
when it can be necessary to enter into any
discussion in order to prove the importance of this
instrument, as a means to effect the legitimate
objects of the government.
But, were its necessity less apparent, none can

deny its being an appropriate measure; and if it is,
the degree of its necessity, as has been very justly
observed, is to be discussed in another place.
Should Congress, in the execution of its powers,
adopt measures which are prohibited by the
constitution; or should Congress, under the
pretext of executing its powers, pass laws for the
accomplishment of objects not entrusted to the
government, it would become the painful duty of
this tribunal, should a case requiring such a
decision come before it, to say that such an act
was not the law of the land. But where the law is
not prohibited, and is really calculated to effect
any of the objects entrusted to the government, to
undertake here to inquire into the degree of its
necessity, would be to pass the line which
circumscribes the judicial department, and to
tread on legislative ground. This court disclaims
all pretensions to such a power. . . .
After the most deliberate consideration, it is the

unanimous and decided opinion of this court that
the act to incorporate the bank of the United
States is a law made in pursuance of the
constitution, and is a part of the supreme law of
the land.
As we can see, Marshall adopted Hamilton’s
reasoning and the government’s claims about the
proper interpretation of the necessary and proper
clause: “necessary” does not mean absolutely
necessary or essential, as Jefferson argued, but
rather convenient or useful, as Hamilton believed.
Some even believed Marshall’s opinion was a virtual
transcript of the oral arguments presented by the
federal attorneys. Given that Marshall issued
McCulloch just three days after the case had been
presented, it is more likely, as others suspect, that
he had written the opinion the previous summer.
How did the public respond? Despite the Court’s

opinion upholding the bank, sentiment was decidedly
against the cashier, James McCulloch (see Box 3-5).
As for Marshall’s opinion? Immediate reaction was
interesting in that it focused less on the portion of
the opinion we have dealt with here—congressional
powers—and more on the federalism dimension,
which we take up in Chapter 6. Nevertheless, the
long-term effect of Marshall’s interpretation of the
necessary and proper clause has been significant:
Congress now exercises many powers not named in
the Constitution but implied by it. In this way
McCulloch is a landmark decision and one that
might very well have accomplished Marshall’s stated
objective: to allow the Constitution “to endure for
ages to come.”
Before turning to one of those powers—the power to

investigate—it is worth considering how
contemporary justices interpret Marshall’s version of
congressional authority under the necessary and
proper clause. First, virtually all justices continue
the Hamilton–Marshall tradition of defining
“necessary” not as absolutely necessary but as
convenient, useful, or beneficial to the exercise of
congressional authority.
Second, the Court usually (but not always) is

deferential to congressional determination that a law
is “necessary.” But it also has acknowledged that
Congress’s power is not unlimited, just as Marshall
did. Recall the Chief’s words:
Let the end be legitimate, let it be within the

scope of the constitution, and all means which
are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are
constitutional.
The Court continues to use this means–ends

approach but in a more specific form than Marshall
put it. In recent cases the justices have asked
“whether the law constitutes a means that is
rationally related [or reasonably adapted] to the
implementation of a constitutionally enumerated
power.” United States v. Comstock (2010)
provides an example.
At issue in Comstock was a law allowing a federal
court, on the recommendation of the government, to
order the civil commitment of a mentally ill, sexually
dangerous, federal prisoner beyond the date he
would otherwise be released. Writing for a 7–2
Court, Justice Stephen Breyer acknowledged that
beyond federal crimes relating to “counterfeiting,”
“treason,” or “Piracies and Felonies committed on
the high Seas” or “against the Law of Nations,” the
Constitution does not explicitly mention “Congress’
power to criminalize conduct [or] its power to
imprison individuals who engage in that conduct, nor
its power to enact laws governing prisons and
prisoners.” Still, Breyer maintained, Congress has
“broad authority to do each of those things in the
course of ‘carrying into Execution’ the enumerated
powers ‘vested by’ the ‘Constitution in the
Government of the United States,’—authority
granted by the Necessary and Proper Clause.” In
other words, the law at issue is rationally related to
congressional power “to help ensure the
enforcement of federal criminal laws [which even the
first Congress] enacted in furtherance of its
enumerated powers.”
Only Justice Clarence Thomas, joined by Justice

Antonin Scalia, dissented in Comstock. To them the
law, while accomplishing an important end—
protecting society from violent sex offenders—does
not seem to execute any enumerated power. It rather
piles one implied power on another in a way that
Marshall would not have approved. To Thomas and
Scalia, McCulloch demands that any implied power
must follow plainly from, and not simply be vaguely
related to, an enumerated end. Under their
interpretation,
federal legislation is a valid exercise of

Congress’ authority under the [Necessary and
Proper] Clause if it satisfies a two-part test:
First, the law must be directed toward a
“legitimate” end, which McCulloch defines as
one “within the scope of the [C]onstitution”—
that is, the powers expressly delegated to the
Federal Government by some provision in the
Constitution. Second, there must be a necessary
and proper fit between the “means” (the federal
law) and the “end” (the enumerated power or
powers) it is designed to serve. McCulloch
accords Congress a certain amount of discretion
in assessing means-end fit under this second
inquiry. The means Congress selects will be
deemed “necessary” if they are “appropriate”
and “plainly adapted” to the exercise of an
enumerated power, and “proper” if they are not
otherwise “prohibited” by the Constitution and
not “ [in]consistent” with its “letter and spirit.”
Box 3-5 Aftermath . . . James McCulloch and

the Second National Bank
JOHN MARSHALL’S opinion for a unanimous
Court in McCulloch v. Maryland (1819) resolved
the constitutional questions surrounding the
Second Bank of the United States. The decision,
however, did not diminish the strong public
sentiment against Baltimore branch cashier James
McCulloch (also known as M’Culloch or
McCulloh), who had been accused of engaging
with others in corruption and unchecked financial
speculation. Negative newspaper articles and a
congressional investigation into the affairs of the
national bank led to claims that large amounts of
money were unaccounted for or mishandled. On
March 6, 1819, the same day the Court handed
down the McCulloch decision, Langdon Cheves
was installed as the new president of the national
bank. Two months later Cheves relieved
McCulloch of his duties, claiming that the
Baltimore branch cashier had defrauded the bank
of $1,671,221.87.
In July 1819 McCulloch, former branch president

James Buchanan, and Baltimore businessman
George Williams were indicted for conspiracy to
defraud the bank of an amount exceeding $1.5
million. The indictment, instigated by Maryland
attorney general Luther Martin, accused the
defendants of “wickedly devising, contriving and
intending, falsely, unlawfully, fraudulently, craftily
and unjustly, and by indirect means, to cheat and
impoverish” the bank. One observer at the time
labeled the three “destroyers of widows and
orphans.” Among other schemes, the three
accused men had operated a company that
speculated in the bank’s stock and were in a
position to manipulate its value to their own
advantage.
In April 1821 the trial court dismissed the charges

on the ground that conspiracy to commit fraud
was not a crime under common law or one
specified by Maryland statute. Later that year,
however, the Maryland Court of Appeals reversed,
ordering a full trial on the charges. All along the
three defendants argued that they might have
committed certain indiscretions but that the
bank’s losses were the result of bad economic
times rather than any criminal acts. In March
1823, McCulloch and Buchanan were found not
guilty and the charges against Williams were
dismissed.
Following his acquittal, James McCulloch began

rebuilding his life and reputation. In 1825 he was
elected to the state legislature representing
Baltimore County, and the next year his legislative
colleagues selected him to be Speaker of the
Maryland House of Delegates. He was also active
as a lobbyist for the city and county of Baltimore
as well as for the Chesapeake and Ohio Canal
Company. Ironically, McCulloch even served a
term as director of the Maryland Penitentiary. In
1842 the Senate confirmed President John Tyler’s
nomination of McCulloch to be the first
comptroller of the United States Treasury, a post
he held for seven years. McCulloch died in 1861.
The Second Bank of the United States continued

to do business after the McCulloch decision. In
1832 President Andrew Jackson, a fierce opponent
of the bank, vetoed a congressional act extending
the bank’s charter. When its charter expired in
1836, the bank became a private institution under
the laws of Pennsylvania. But it did not prosper. In
1839 it temporarily suspended payment on its
obligations and then unsuccessfully fought a two-
year battle for survival. Its assets were liquidated
in 1841. From 1836 until 1913, when the Federal
Reserve System was created, the United States
operated without an effective central bank.
Sources: Bray Hammond, “Jackson, Biddle, and

the Bank of the United States,” Journal of
Economic History 7 (May 1947): 1–23; Mark R.
Killenbeck, M’Culloch v. Maryland: Securing a
Nation (Lawrence: University Press of Kansas,
2006); Melvin I. Urofsky, Supreme Decisions:
Great Constitutional Cases and Their Impact
(Boulder, CO: Westview Press, 2012).
Thomas did not believe that the law at issue in

Comstock met this test. Because the federal
government could identify “no specific enumerated
power or powers as a constitutional predicate for
[the law],” it was not “‘necessary and proper for
carrying into Execution’ one or more of those federal
powers actually enumerated in the Constitution.”
In Comstock, Chief Justice John Roberts was in the

majority, but in National Federation of Independent
Business v. Sebelius (2012) (excerpted in Chapters 7
and 8), a case over the health care law
(“Obamacare”) passed in 2010, Roberts seemed
more sympathetic to limiting congressional power
under the necessary and proper clause. An
important question in the case concerned the
constitutionality of a provision in the law mandating
that most people either buy health insurance or pay
a penalty for not buying insurance. Among the
government’s arguments in defense of the provision
was that it was “necessary,” under the necessary and
proper clause, because without it the government
could not require insurance companies to cover
people with preexisting conditions (a major goal of
the health care law). People would wait until they
were sick to obtain insurance, and, without healthy
people contributing, the system would go bankrupt.
Roberts understood that the mandate was probably
necessary, but he rejected the idea that it was
“proper.” Why not? One of his reasons 22—and the
one that has generated a good deal of legal
commentary—takes us back to Marshall’s opinion in
McCulloch. Recall Marshall’s words:
22 As we will see in Chapters 7 and 8, the

government also argued that the individual mandate
was a valid exercise of Congress’s power to regulate
commerce among the states and to tax. In making
the necessary and proper clause argument, the
government contended that the mandate was
incident to the power to regulate commerce. Roberts
rejected this argument on the ground that Congress
was not regulating commercial activity; rather, it
was compelling the uninsured to become active in a
commercial market. And so, in addition to not being
“proper,” the mandate was not incident to the
legitimate exercise of an enumerated power.
The power of creating [the bank] is not, like the

power of making war or levying taxes or of
regulating commerce, a great substantive and
independent power which cannot be implied as
incidental to other powers or used as a means of
executing them.
To Roberts, compelling people to buy insurance is, in

fact, “a great substantive and independent power,”
not a power lesser than or incidental to an
enumerated power. As a result, he concluded that
the mandate was inconsistent with the “letter and
spirit” of the Constitution, meaning it was not
proper.
In so writing, Roberts did not overturn Comstock,

which he continued to believe was warranted under
the necessary and proper clause if only because the
law was “narrow in scope” and pertained to those
already in federal custody. Still, he did not offer a
specific rule to differentiate great and independent
powers from lesser derivative powers. This caused
Justice Ruth Bader Ginsburg to wonder, “How is a
judge to decide, when ruling on the constitutionality
of a federal statute, whether Congress employed an
‘independent power’ or merely a ‘derivative’ one.
Whether the power used is ‘substantive’ or just
‘incidental’? The instruction The Chief Justice, in
effect, provides lower courts: You will know it when
you see it.”
From the different approaches in Comstock and

National Federation of Independent Business, you
can probably tell that the necessary and proper
clause jurisprudence is somewhat murky, with
clarification sure to come in future cases.23 For now,
consider whether the Thomas–Scalia and, possibly,
Roberts approach squares with McCulloch. One way
to think about this is to ask yourself whether
Marshall would have upheld or struck the laws at
issue in Comstock and National Federation of
Independent Business. You can return to this
question also when we consider the health care case
in more detail in the chapters to come.
23 See also Zivotofsky v. Kerry (2015), excerpted in

Chapter 5. You might want to ask yourself whether
Justice Scalia’s dissent in that case squares with the
dissent he joined in Comstock.
Power to Investigate.
Of all the implied powers that Congress asserts, the
power to investigate merits close examination. Many
think it is one of the major congressional powers. As
Woodrow Wilson noted, “The informing function of
Congress should be preferred even to its legislative
function.” Another president, Harry Truman,
concurred: “The power of investigation is one of the
most important powers of Congress. The manner in
which that power is exercised will largely determine
the position and prestige of the Congress in the
future.” In addition, the scope of congressional
authority in this area has been the subject of some
rather interesting, perhaps conflicting, and most
definitely controversial Supreme Court opinions.
What has never been controversial, however, is that

Congress has the ability to conduct investigations.
After all, to legislate effectively Congress must be
able to gather information to determine whether
new laws are necessary and, if so, how best to
construct them. Although this is not an enumerated
power, there is little question that legislatures can
hold inquiries. We refer to it as an implied power;
other analysts say that it is an inherent power that
legislatures have by virtue of being legislatures. And
still others call it an inherited power that the British
Parliament willed to Congress. In any event,
Congress took advantage of this power virtually from
the beginning, holding its first investigation in 1792.
Since then no period in American history has been
without congressional investigations.
If the power of Congress to investigate is so well

entrenched, what is controversial about the
practice? We can point to several areas of dispute.
One is the scope of the power: Into what subjects
may Congress inquire? Another is subpoena power:
May Congress summon witnesses and punish, by
holding in contempt, those who do not cooperate
with the investigating body? If so, what rights do
witnesses have? In Kilbourn v. Thompson (1881), the
justices attempted to provide some firm answers to
these questions.
Kilbourn involved a House investigation into a

private banking firm. An important witness, Hallett
Kilbourn, refused to produce documents demanded
by the inquiring committee. By a House order, he
was held in contempt and jailed. When he was
released, he sued various officials and
representatives for false arrest. In his view, the
investigation was not legitimate because, first, the
House of Representatives “has no power whatever to
punish for a contempt of its authority”; and second,
the investigation concerned private, not public,
matters. Kilbourn stated that he would resist “the
naked, arbitrary power of the House to investigate
private businesses in which nobody but me and my
customers have concern.”24 The House, in turn,
claimed that power “undoubtedly exists, and when
that body has formally exercised it, it must be
presumed that it was rightfully exercised.”25
24 Quoted in Congressional Quarterly, Guide to

Congress, 5th ed. (Washington, DC: CQ Press, 2000),
252.
25 The quotes in this paragraph come from the

Court’s summary of the parties’ arguments.
On the one hand, the Supreme Court conceded that
Congress can summon witnesses and punish for
contempt, though this turned out to be not much of a
concession. As early as 1795 Congress jailed for
contempt a man who had tried to bribe a member of
Congress, and the Supreme Court theoretically
approved of the practice as early as 1821, in
Anderson v. Dunn. These rulings seem to reflect the
view that the power to call and punish witnesses can
be implied from the inherent nature of legislative
authority. Congress is, by definition, a lawmaking
institution, and an inherent quality of such an
institution is the power to investigate. To function,
therefore, Congress must have the authority to
summon witnesses and punish those who do not
comply, and both chambers have always availed
themselves of this authority.
On the other hand, the justices seemed to agree with

Kilbourn’s arguments about the limited scope of the
investigatory power. In what some have called a
rather narrow ruling on legislative powers, the
justices said that Congress could punish witnesses
only if the inquiry itself was within the “legitimate
cognizance” of the institution. Inquiries (1) must not
“invade areas constitutionally reserved to the courts
or the executive,” (2) must deal “with subjects on
which Congress could validly legislate,” and (3) must
suggest, in the resolutions authorizing the
investigation, a “congressional interest in legislating
on that subject.”26
26 See Pritchett, Constitutional Law of the Federal
System, 191.
Under these limitations, Congress could hold

inquiries only into subjects that are specifically
grounded within its constitutional purview and, in
particular, that the “private affairs of individuals,”
where the inquiry could result in “no valid
legislation,” did not fall into that category. As a
result, Kilbourn won his case because the House
resolution authorizing the investigation exceeded
Congress’s constitutional authority.
Four decades later the Court was once again called

on to examine the scope of congressional
investigative authority. As you read McGrain v.
Daugherty (1927), consider its ruling in light of
Kilbourn. Some think the justices substantially
reworked the 1881 holding. Do you agree? If so,
what did they change?
McGrain v. Daugherty 273 U.S. 135 (1927)
court/273/135.html
Vote: 8 (Brandeis, Butler, Holmes, McReynolds,

Sanford, Sutherland, Taft, Van Devanter)
OPINION OF THE COURT: Van Devanter

NOT PARTICIPATING: Stone
Facts:
In 1922 Congress began an investigation of a huge
scandal known as Teapot Dome. It involved the
alleged bribery of public officials by private
companies to obtain leasing rights to government-
held oil reserves, including the Teapot Dome
reserves in Wyoming. Initial inquiries centered on
employees of the Department of the Interior, but
Congress soon turned its attention to the Justice
Department. It was thought that Attorney General
Harry M. Daugherty was involved in fraudulent
activities because he failed to prosecute
wrongdoers. A Senate committee ordered the
attorney general’s brother, Mally S. Daugherty, to
appear before it and to produce documents. Mally
Daugherty was a bank president, and the
committee suspected that he was involved in the
scandal.
Members of the Senate investigating committee

that sought to compel testimony from Mally
Daugherty. From left, Burton K. Wheeler, George
Moses, Smith Brookhart, Andrieus Jones, and
Henry Ashurst.
Library of Congress
This suspicion grew stronger with the resignation

of the attorney general and the subsequent refusal
of his brother to appear before the committee. The
Senate had Mally arrested. He, in turn, challenged
the committee’s authority to compel him—through
arrest—to testify against his brother. Note how
both the U.S. government and Daugherty
attempted to use Kilbourn to frame their
arguments.
Arguments:
For the appellant, John J. McGrain,
Deputy Sergeant of Arms, U.S. Senate:
Each house of Congress has the power to
conduct an investigation in aid of legislative
functions and to compel the attendance of
witnesses and the production of materials that
may throw light upon the subject of inquiry.
This has been the practice of Congress for
many years.
The investigation ordered by the Senate, in the
course of which the testimony of Daugherty
and the production of books and records of the
bank of which he is president were required,
was legislative in its character, as required by
Kilbourn v. Thompson. In that way, this case is
distinct from Kilbourn because it cannot
possibly be said that the discovery of any facts
showing neglect or failure on the part of the
attorney general or his assistants to discharge
their duty cannot be used by Congress as a
basis for new legislation.27
27 McGrain’s brief was written by Attorney

General Harlan Fiske Stone, who had since been
appointed a justice on the Court deciding the case.
For the appellee, Mally S.

Daugherty:
The investigation is not legislative but judicial
in character; it is an attempt to prosecute, try,
and determine the guilt or innocence of
Daugherty. Except in cases of impeachment,
Congress lacks such power, according to
Kilbourn v. Thompson. The Senate cannot vest
its committee with judicial power.
The Senate, when acting in its legislative
capacity, has no power to arrest in order to
compel testimony.
The Constitution does not grant Congress any
power to compel testimony to aid it in
formulating legislation. If, however, the Court
holds that Congress has such power, then it
must be shown what legislation Congress has
in mind and that the evidence is pertinent to
the proposed subject matter of the legislation.
Mr. Justice Van Devanter Delivered the

We have given the case earnest and prolonged
consideration because the principal questions
involved are of unusual importance and delicacy. .
..
The first of the principal questions—the one which

the witness particularly presses on our attention—
is . . . whether the Senate—or the House of
Representatives . . .—has power . . . to compel a
private individual to appear before it or one of its
committees and give testimony needed to enable it
efficiently to exercise a legislative function
belonging to it under the Constitution.
The Constitution provides for a Congress

consisting of a Senate and House of
Representatives and invests it with “all legislative
powers” granted to the United States, and with
power “to make all laws which shall be necessary
and proper” for carrying into execution these
powers and “all other powers” vested by the
Constitution in the United States or in any
department or officer thereof. . . . But there is no
provision expressly investing either house with
power to make investigations and exact testimony
to the end that it may exercise its legislative
function advisedly and effectively. So the question
arises whether this power is so far incidental to
the legislative function as to be implied.
In actual legislative practice, power to secure

needed information by such means has long been
treated as an attribute of the power to legislate. It
was so regarded in the British Parliament and in
the colonial Legislatures before the American
Revolution; and a like view has prevailed and been
carried into effect in both houses of Congress and
in most of the state Legislatures. . . .
. . . The state courts quite generally have held that

the power to legislate carries with it by necessary
implication ample authority to obtain information
needed in the rightful exercise of that power, and
to employ compulsory process for the purpose. . . .
[This Court has decided several cases that] are not

decisive . . . [but] definitely settle two propositions
. . . : One, that the two houses of Congress . . .
possess, not only such powers as are expressly
granted to them by the Constitution, but such
auxiliary powers as are necessary and appropriate
to make the express powers effective; and the
other, that neither house is invested with
“general” power to inquire into private affairs and
compel disclosures, but only with such limited
power of inquiry as is shown to exist when the rule
of constitutional interpretation just stated is
rightly applied. . . .
We are of opinion 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 do
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.
The contention is earnestly made on behalf of the

witness that this power of inquiry, if sustained,
may be abusively and oppressively exerted. If this
be so, it affords no ground for denying the power.
The same contention might be directed against
the power to legislate, and of course would be
unavailing. We must assume, for present purposes,
that neither house will be disposed to exert the
power beyond its proper bounds, or without due
regard to the rights of witnesses. But if, contrary
to this assumption, controlling limitations or
restrictions are disregarded, the decision . . . in
Kilbourn v. Thompson . . . point [s] to admissible
measures of relief. And it is a necessary deduction
from the decision . . . that a witness rightfully may
refuse to answer where the bounds of the power
are exceeded or the questions are not pertinent to
the matter under inquiry.
We come now to the question whether it

sufficiently appears that the purpose for which the
witness’s testimony was sought was to obtain
information in aid of the legislative function. . . .
Attorney General Harry M. Daugherty, whose

brother Mally S. Daugherty refused to appear
before the Senate to answer questions concerning
the Teapot Dome scandal, in which both were
implicated. In McGrain v. Daugherty the Court
affirmed congressional power to investigate, even
without an explicitly stated legislative purpose.
Library of Congress
Map of Wyoming and detail showing the location

of the U.S. Navy’s oil reserves that, along with
reserves in Elk Hills, California, were illegally
leased to a private oil company.
From The New York Times, 9/18/1998 ©
“Teapot Dome, 15 Square Miles of Barren
Land Tied to Scandal” The New York Times.
All rights reserved. Used by permission and
protected by the Copyright Laws of the United
States. The printing, copying, redistribution,
or retransmission of this Content without
express written permission is prohibited.
We are of opinion that . . . it sufficiently appears . .

. that the object of the investigation and of the
effort to secure the witness’s testimony was to
obtain information for legislative purposes.
It is quite true that the resolution directing the

investigation does not in terms avow that it is
intended to be in aid of legislation; but it does
show that the subject to be investigated was . . .
one on which legislation could be had and would
be materially aided by the information which the
investigation was calculated to elicit. This
becomes manifest when it is reflected that the
functions of the Department of Justice, the powers
and duties of the Attorney General and the duties
of his assistants, are all subject to regulation by
congressional legislation, and that the department
is maintained and its activities are carried on
under such appropriations as in the judgment of
Congress are needed from year to year.
The only legitimate object the Senate could have

in ordering the investigation was to aid it in
legislating; and we think the subject-matter was
such that the presumption should be indulged that
this was the real object. An express avowal of the
object would have been better; but in view of the
particular subject-matter was not indispensable. . .
.
We conclude that the investigation was ordered

for a legitimate object; that the witness wrongfully
refused to appear and testify before the committee
and was lawfully attached; [and] that the Senate is
entitled to have him give testimony pertinent to
the inquiry, either at its bar or before the
committee.
McGrain is important for three reasons,

corresponding to the three key questions about
investigations: their scope, congressional power to
punish, and the rights of witnesses. Beginning with
the scope, the justices articulated what some have
called the proper legislative purpose test: Congress
cannot hold a hearing unless there is a proper
legislative purpose—“one on which legislation could
be had and would be materially aided by the
information which the investigation was calculated
to elicit.” This test follows from Kilbourn’s emphasis
on Congress sticking to a subject on which it could
validly legislate. But some commentators have
argued that it is less rigid than the Kilbourn
approach. Do you agree? You might ask yourself
whether the McGrain Court would have allowed the
investigation of Hallett Kilbourn.
Second, McGrain yet again, though perhaps even

more definitively, established Congress’s power to
inquire and to enforce that power with the ability to
punish as an implied power. The Court said,
“Experience has taught that mere requests for . . .
information often are unavailing . . . so some means
of compulsion are essential to obtain what is
needed.” This statement was an important
affirmation of a long-standing practice, as we noted
earlier. Since 1795, congressional committees had
often invoked their power to punish, issuing more
than 380 contempt citations over the years. When a
committee does so, and if the parent chamber
approves by a simple majority, the case is forwarded
to a U.S. attorney for possible prosecution.28
28 The executive branch has a (theoretical) duty to

prosecute these cases, but Congress cannot force
the executive branch to do so. Should the executive
branch decline to prosecute, Congress could attempt
to file a civil suit compelling prosecution, but these
suits could face dismissal on political question
grounds (see Chapter 2).
Finally, McGrain provides some insight into the

rights of witnesses. Even as it ruled against
Daugherty, the Court held that witnesses may refuse
to answer “where the bounds of the power are
exceeded or the questions are not pertinent to the
matter under inquiry.”
This window of opportunity for witnesses to refuse to

testify became quite important during World War II
and in the postwar period when, out of fear of an
influx of foreign ideologies into the United States,
Congress embarked on a new type of investigation:
the “inquisitorial panel.” That is, the goal of these
hearings on “subversive activities” was, according to
many observers, exposure, not necessarily
information.
Falling under this rubric were the investigations held

in the 1930s by the House Special Committee to
Investigate Un-American Activities and in the 1940s
and 1950s by Senator Joseph McCarthy (R-Wis.), and
by the House Un-American Activities Committee
(HUAC) (see Box 3-6). The hearings held by these
committees were quite controversial. At that time,
the fear of communism was so pervasive that
individuals summoned to testify before them lost
their jobs, were placed on blacklists, and suffered
other negative consequences. Moreover, many
witnesses were sufficiently frightened of being
branded communist sympathizers or supporters that
they refused to testify or asserted a constitutional
protection against so doing, which resulted in an
unusually high number of contempt citations.
Between 1792 and 1942, Congress had issued 108
contempt citations; from 1945 to 1957, fourteen
committees presented 226 such citations to their
respective chambers. HUAC alone held 144
“uncooperative” witnesses in contempt.29
29 Congressional Quarterly, Guide to Congress, 3rd

ed. (Washington, DC: Congressional Quarterly,
1982), 163.
In the late 1950s the Supreme Court decided two

major cases involving the rights of witnesses to
refuse to answer Congress’s questions. While
reading Watkins v. United States (1957) and
Barenblatt v. United States (1959), think about this
question: Were the Court’s decisions consistent? If
not, what difference do you see?
Box 3-6 Investigations of “Un-Americanism”
ONE OF THE MOST significant expansions of

congressional investigative powers beyond direct
legislative matters was the study of subversive
movements after World War II. Instead of pursuing
traditional lines of congressional inquiry—
government operations and national social and
economic problems—committees probed into the
thoughts, actions, and associations of individuals
and institutions.
The House Committee on Un-American Activities,

also known as the House Un-American Activities
Committee, or HUAC, was the premier example of
these investigative panels. The committee was
abolished in January 1975, ending thirty years of
controversy over its zealous pursuit of
subversives. Its long survival surprised many
observers. From the outset, the panel, renamed
the Internal Security Committee in 1969, was
attacked by liberals and civil libertarians.
Throughout the 1960s it withstood court suits
challenging the constitutionality of its mandate
and attempts in the House to end its funding. The
deathblow finally came when the House
Democratic Caucus, by voice vote in January 1975,
transferred its functions to the House Judiciary
Committee.
Early History
The first congressional investigation of un-
American activities was authorized September 19,
1918, toward the close of World War I. That
original mandate was to investigate the activities
of German brewing interests. The investigation,
conducted by the Senate Judiciary Committee, was
expanded in 1919 to cover “any efforts . . . to
propagate in this country the principles of any
party exercising . . . authority in Russia . . . and . .
. to incite the overthrow” of the U.S. government.
The House on May 12, 1930, set up the Special
Committee to Investigate Communist Activities in
the United States—the Fish Committee,
nicknamed for its chair, Representative Hamilton
Fish Jr. (R-N.Y.). On March 20, 1934, the House
created the Special Committee on Un-American
Activities, under Chair John W. McCormack (D-
Mass.). On May 26, 1938, more than three years
after McCormack’s committee submitted its
report, which covered Nazi as well as communist
activities in the United States, the House set up
another Special Committee on Un-American
Activities under Chair Martin Dies Jr. (D-Texas).
The committee, whose chair was avowedly anti-
communist and anti–New Deal, was given a broad
mandate to investigate subversion.
Dies focused his early investigations on organized

labor groups, especially the Congress of Industrial
Organizations, and set a tactical pattern that
would guide the permanent Un-American
Activities Committee, which was created in 1945.
Friendly witnesses, who often met in secret with
Dies as a one-man subcommittee, accused
hundreds of people of supporting communist
activities, but few of the accused were permitted
to testify in rebuttal. The press treated Dies’s
charges sensationally, a practice that was to
continue after World War II.
The Dies Committee was reconstituted in

succeeding Congresses until 1945. That January,
at the beginning of the Seventy-Ninth Congress, it
was renamed the House Committee on Un-
American Activities and made a standing
committee.
The next five years marked the peak of the
committee’s influence. In 1947 it investigated
communism in the motion picture industry, with
repercussions that lasted almost a decade. Its
hearings resulted in the Hollywood blacklist that
kept many writers and actors suspected of
communist leanings out of work.
The committee’s investigation in 1948 of State

Department official Alger Hiss, and Hiss’s
subsequent conviction for perjury, established
communism as a leading political issue and the
committee as an important political force. The
case against Hiss was vigorously developed by a
young representative from Southern California,
Richard Nixon.
The committee’s tactics during this period

included extensive use of contempt citations
against unfriendly witnesses, some of whom
pleaded their Fifth Amendment right against self-
incrimination. In 1950 alone the House voted fifty-
nine contempt citations, of which fifty-six had
been recommended by the committee.
Senate Investigations
In the early 1950s the Un-American Activities
Committee was overshadowed by Senate
investigations conducted by Joseph R. McCarthy
(R-Wis.), chair (1953–1954) of the Government
Operations Committee’s Permanent Investigations
Subcommittee. McCarthy’s investigation into
alleged subversion in the U.S. Army—televised
nationwide in 1954—intensified concerns over the
use by Congress of its investigating powers and
led to his censure by the Senate in 1954.
During the same period, the Senate Judiciary

Committee’s Internal Security Subcommittee,
established in 1951, also investigated subversive
influences in various fields, including government,
education, labor unions, the United Nations, and
the press.
Source: Congressional Quarterly, Guide to

Congress, 4th ed. (Washington, DC: CQ Press,
1991), 240.
Watkins v. United States 354 U.S. 178 (1957)
court/354/178.html

Vote: 6 (Black, Brennan, Douglas, Frankfurter,

Harlan, Warren)
1 (Clark)

CONCURRING OPINION: Frankfurter
DISSENTING OPINION: Clark
NOT PARTICIPATING: Burton, Whittaker
Facts:
When the House Un-American Activities
Committee was made a standing committee in
1945, Congress defined its authority in Rule XI as
follows:
The Committee on Un-American Activities, as

a whole or by subcommittee, is authorized to
make from time to time investigations of (1)
the extent, character, and objects of un-
American propaganda activities in the United
States, (2) the diffusion within the United
States of subversive and un-American
propaganda that is instigated from foreign
countries or of a domestic origin and attacks
the principle of the form of government as
guaranteed by our Constitution, and (3) all
other questions in relation thereto that would
aid Congress in any necessary remedial
legislation.
In the early 1950s HUAC took that mandate to

mean that it could call witnesses to testify about
Communist Party infiltration into American society
and their involvement in that organization.
Watkins v. United States crystallized when the

committee invoked a favorite modus operandi:
asking a witness before it to “name names,” to
implicate others as Communist Party members.
Two witnesses told the committee that John T.
Watkins, who had been involved in various labor
organizations such as the United Electrical, Radio
and Machine Workers, and the United Auto
Workers, was not only a Communist Party member
but also a recruiter for the party.
When the committee subpoenaed Watkins in April

1954, he readily answered questions following
from these allegations. Among his responses was
the following:
I would like to make it clear that for a period

of time from approximately 1942 to 1947 I
cooperated with the Communist Party and
participated in Communist activities to such a
degree that some persons may honestly
believe that I was a member of the party.
I have made contributions upon occasions to

Communist causes. I have signed petitions for
Communist causes. I attended caucuses at [a]
. . . convention at which Communist Party
officials were present.
Since I freely cooperated with the Communist

Party I have no motive for making the
distinction between cooperation and
membership except for the simple fact that it
is the truth. I never carried a Communist Party
card. I never accepted discipline and indeed
on several occasions I opposed their position.
The government conceded that in responding to

questions about his own activities, it could “hardly
. . . imagine” a more “complete and candid
statement.” But the government alleged that
Watkins went astray because he refused to answer
questions about the activities of others. When the
committee read to Watkins a list of names, some of
whom he knew, and asked him to say whether they
had been Communist Party members, Watkins
said,
I refuse to answer certain questions that I

believe are outside the proper scope of your
committee’s activities. I will answer any
questions which this committee puts to me
about myself. I will also answer questions
about those persons whom I knew to be
members of the Communist Party and whom I
still believe are. I will not, however, answer
any questions with respect to others with
whom I associated in the past. I do not believe
that any law in this country requires me to
testify about persons who may in the past have
been Communist Party members or otherwise
engaged in Communist Party activity but who
to my best knowledge and belief have long
since removed themselves from the
Communist movement.
Watkins then questioned the pertinence of the

inquiries into others’ activities to the committee’s
work:
I do not believe that such questions are

relevant to the work of this committee, nor do
I believe that this committee has the right to
undertake the public exposure of persons
because of their past activities. I may be
wrong, and the committee may have this
power, but until and unless a court of law so
holds and directs me to answer, I most firmly
refuse to discuss the political activities of my
past associates.
At that point, the committee chair responded to

Watkins’s question relating to pertinence:
This committee is set up by the House of

Representatives to investigate subversion and
subversive propaganda and to report to the
House of Representatives for the purpose of
remedial legislation.
The House Un-American Activities Committee

holds a press conference December 3, 1948, after
a closed session. Standing are two committee
investigators. Seated are several reporters and
(left to right) Richard Nixon (R-Calif.), John Rankin
(D-Miss.), and John McDowell (R-Pa.).
© Bettmann/CORBIS
The House of Representatives has by a very
clear majority . . . directed us to engage in
that type of work, and so we do, as a
committee of the House of Representatives,
have the authority, the jurisdiction, to ask you
concerning your activities in the Communist
Party, concerning your knowledge of any
persons who are members of the Communist
Party or who have been members of the
Communist Party, and so, Mr. Watkins, you are
directed to answer the question propounded to
you by counsel.
When Watkins once again refused to respond, the

committee chair reported the matter to the full
House, which held Watkins in contempt and
presented the case to a U.S. attorney for criminal
prosecution. Watkins was found guilty of
“contempt of Congress,” fined $100, and given a
one-year suspended prison sentence.
Arguments:
For the petitioner, John T. Watkins:
The congressional power to investigate is a
limited power and does not encompass
exposure for the sake of exposure. It is limited
to investigation in aid of legislation. Otherwise
the power is incompatible with our
constitutional system, as previous decisions of
the Court make clear.
The questions that Watkins refused to answer
fell beyond the language of the committee’s
authorization in part because the language
does not authorize the committee to ask
questions for exposure purposes.
The committee’s authorization is so vague that
Watkins could not determine whether it
authorized the questions he did not answer.
Only by asserting the proposition that any
connection with the Communist Party—
whether many years ago and without
engagement in subversive activities—was a
proper subject for congressional investigation
could Watkins conclude that the authorization
was sufficiently clear to enable him to
determine whether the questions were
pertinent to the investigation.

States:
The committee was acting pursuant to a valid
legislative purpose. The record of the hearing,
along with the rule under which the committee
operates, makes this clear.
The inquiry would not have been invalid even if
the committee’s purpose had been merely to
inform Congress and the public of communist
activities in labor unions. Combating
subversive activities by publicity does not
necessarily mean that the inquiry would not
also aid legislation. A disclosure that people
loyal to a foreign government led certain
organizations could be relevant in determining
whether further legislation was needed.
But even if the committee did not have
legislation in mind in questioning Watkins and
was concerned only with bringing information
to Congress’s and the public’s attention, that
would fit within the “informing function” of
Congress, which is an inherent power of
legislatures in representative governments.

We start with several basic premises on which

there is general agreement. 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. But,
broad as is this power of inquiry, it is not
unlimited. There is no general authority to expose
the private affairs of individuals without
justification in terms of the functions of the
Congress. This was freely conceded by the
Solicitor General in his argument of this case. Nor
is the Congress a law enforcement or trial agency.
These are functions of the executive and judicial
departments of government. No inquiry is an end
in itself; it must be related to, and in furtherance
of, a legitimate task of the Congress.
Investigations conducted solely for the personal
aggrandizement of the investigators or to “punish”
those investigated are indefensible.
It is unquestionably the duty of all citizens to

cooperate with the Congress in its efforts to obtain
the facts needed for intelligent legislative action. .
. . This, of course, assumes that the constitutional
rights of witnesses will be respected by the
Congress as they are in a court of justice. The Bill
of Rights is applicable to investigations as to all
forms of governmental action. . . .
Abuses of the investigative process may

imperceptibly lead to abridgment of protected
freedoms. The mere summoning of a witness and
compelling him to testify, against his will, about
his beliefs, expressions or associations is a
measure of governmental interference. And when
those forced revelations concern matters that are
unorthodox, unpopular, or even hateful to the
general public, the reaction in the life of the
witness may be disastrous. . . . Nor does the
witness alone suffer the consequences. Those who
are identified by witnesses and thereby placed in
the same glare of publicity are equally subject to
public stigma, scorn and obloquy. . . .
Accommodation of the congressional need for

particular information with the individual and
personal interest in privacy is an arduous and
delicate task for any court. We do not
underestimate the difficulties that would attend
such an undertaking. It is manifest that despite
the adverse effects which follow upon compelled
disclosure of private matters, not all such
inquiries are barred. Kilbourn v. Thompson [1881]
teaches that such an investigation into individual
affairs is invalid if unrelated to any legislative
purpose. . . .
Petitioner has earnestly suggested that the

difficult questions of protecting these rights from
infringement by legislative inquiries can be
surmounted in this case because there was no
public purpose served in his interrogation. His
conclusion is based upon the thesis that the
Subcommittee was engaged in a program of
exposure for the sake of exposure. . . .
The Government contends that the public interest

at the core of the investigations of the Un-
American Activities Committee is the need by the
Congress to be informed of efforts to overthrow
the Government by force and violence so that
adequate legislative safeguards can be erected.
From this core, however, the Committee can
radiate outward infinitely to any topic thought to
be related in some way to armed insurrection. The
outer reaches of this domain are known only by
the content of “un-American activities.” . . .
It is, of course, not the function of this Court to

prescribe rigid rules for the Congress to follow in
drafting resolutions establishing investigating
committees. That is a matter peculiarly within the
realm of the legislature, and its decisions will be
accepted by the courts up to the point where their
own duty to enforce the constitutionally protected
rights of individuals is affected. An excessively
broad charter, like that of the House Un-American
Activities Committee, places the courts in an
untenable position if they are to strike a balance
between the public need for a particular
interrogation and the right of citizens to carry on
their affairs free from unnecessary governmental
interference. It is impossible in such a situation to
ascertain whether any legislative purpose justifies
the disclosures sought and, if so, the importance
of that information to the Congress in furtherance
of its legislative function. The reason no court can
make this critical judgment is that the House of
Representatives itself has never made it. Only the
legislative assembly initiating an investigation can
assay the relative necessity of specific disclosures.
Absence of the qualitative consideration of

petitioner’s questioning by the House of
Representatives aggravates a serious problem,
revealed in this case, in the relationship of
congressional investigating committees and the
witnesses who appear before them. Plainly these
committees are restricted to the missions
delegated to them, i.e., to acquire certain data to
be used by the House or the Senate in coping with
a problem that falls within its legislative sphere.
No witness can be compelled to make disclosures
on matters outside that area. This is a
jurisdictional concept of pertinency drawn from
the nature of a congressional committee’s source
of authority. . . . When the definition of
jurisdictional pertinency is as uncertain and
wavering as in the case of the Un-American
Activities Committee, it becomes extremely
difficult for the Committee to limit its inquiries to
statutory pertinency. . . .
The problem attains proportion when viewed from

the standpoint of the witness who appears before
a congressional committee. He must decide at the
time the questions are propounded whether or not
to answer.
It is obvious that a person compelled to make this

choice is entitled to have knowledge of the subject
to which the interrogation is deemed pertinent.
The “vice of vagueness” must be avoided here, as
in all other crimes. There are several sources that
can outline the “question under inquiry” in such a
way that the rules against vagueness are satisfied.
The authorizing resolution, the remarks of the
chairman or members of the committee, or even
the nature of the proceedings themselves, might
sometimes make the topic clear. This case
demonstrates, however, that these sources often
leave the matter in grave doubt.
The authorizing resolution [could] itself so clearly

declare the “question under inquiry” that a
witness can understand the pertinency of
questions asked him. The Government does not
contend that the authorizing resolution of the Un-
American Activities Committee could serve such a
purpose. Its confusing breadth is amply illustrated
by the innumerable and diverse questions into
which the Committee has inquired under this
charter since 1938. If the “question under inquiry”
were stated with such sweeping and uncertain
scope, we doubt that it would withstand an attack
on the ground of vagueness.
[Also] the statement of the Committee Chairman

in this case, in response to petitioner’s protest,
was woefully inadequate to convey sufficient
information as to the pertinency of the questions
to the subject under inquiry. Petitioner was thus
not accorded a fair opportunity to determine
whether he was within his rights in refusing to
answer, and his conviction is necessarily invalid
under the Due Process Clause of the Fifth
Amendment. . . .
The conclusions we have reached in this case will

not prevent the Congress, through its committees,
from obtaining any information it needs for the
proper fulfillment of its role in our scheme of
government. . . . It is only those investigations that
are conducted by use of compulsory process that
give rise to a need to protect the rights of
individuals against illegal encroachment. A
measure of added care on the part of the House
and the Senate in authorizing the use of
compulsory process and by their committees in
exercising that power would suffice. That is a
small price to pay if it serves to uphold the
principles of limited, constitutional government
without constricting the power of the Congress to
inform itself.
Reversed and remanded.
MR. JUSTICE FRANKFURTER,

concurring.
The scope of inquiry that a committee is
authorized to pursue must be defined with
sufficiently unambiguous clarity to safeguard a
witness from the hazards of vagueness in the
enforcement of the criminal process against which
the Due Process Clause protects. The questions
must be put with relevance and definiteness
sufficient to enable the witness to know whether
his refusal to answer may lead to conviction for
criminal contempt and to enable both the trial and
the appellate courts readily to determine whether
the particular circumstances justify a finding of
guilt.
While implied authority for the questioning by the

Committee, sweeping as was its inquiry, may be
squeezed out of the repeated acquiescence by
Congress in the Committee’s inquiries, the basis
for determining petitioner’s guilt is not thereby
laid. Prosecution for contempt of Congress
presupposes an adequate opportunity for the
defendant to have awareness of the pertinency of
the information that he has denied to Congress.
And the basis of such awareness must be
contemporaneous with the witness’ refusal to
answer and not at the trial for it. Accordingly, the
actual scope of the inquiry that the Committee
was authorized to conduct and the relevance of
the questions to that inquiry must be shown to
have been luminous at the time when asked and
not left, at best, in cloudiness. The circumstances
of this case were wanting in these essentials.
MR. JUSTICE CLARK,

dissenting.
It may be that at times the House Committee on
Un-American Activities has, as the Court says,
“conceived of its task in the grand view of its
name.” And, perhaps, as the Court indicates, the
rules of conduct placed upon the Committee by
the House admit of individual abuse and
unfairness. But that is none of our affair. So long
as the object of a legislative inquiry is legitimate
and the questions propounded are pertinent
thereto, it is not for the courts to interfere with
the committee system of inquiry. To hold otherwise
would be an infringement on the power given the
Congress to inform itself, and thus a trespass upon
the fundamental American principle of separation
of powers. The majority has substituted the
judiciary as the grand inquisitor and supervisor of
congressional investigations. It has never been so.
...
I think the Committee here was acting entirely

within its scope and that the purpose of its inquiry
was set out with “undisputable clarity.” In the first
place, [its charter] must be read as a whole, not
dissected. It authorized investigation into
subversive activity, its extent, character, objects,
and diffusion. While the language might have been
more explicit than using such words as “un-
American,” or phrases like “principle of the form
of government,” still these are fairly well
understood terms. . . . Watkins’ action at the
hearing clearly reveals that he was well
acquainted with the purpose of the hearing. It was
to investigate Communist infiltration into his
union. This certainly falls within the grant of
authority from [its charter] and the House has had
ample opportunity to limit the investigative scope
of the Committee if it feels that the Committee has
exceeded its legitimate bounds. . . .
The Court indicates that the questions

propounded were asked for exposure’s sake and
had no pertinency to the inquiry. It appears to me
that they were entirely pertinent to the announced
purpose of the Committee’s inquiry. Undoubtedly
Congress has the power to inquire into the
subjects of communism and the Communist Party.
As a corollary of the congressional power to
inquire into such subject matter, the Congress,
through its committees, can legitimately seek to
identify individual members of the Party.
The pertinency of the questions is highlighted by

the need for the Congress to know the extent of
infiltration of communism in labor unions. . . . If
the parties about whom Watkins was interrogated
were Communists and collaborated with him, as a
prior witness indicated, an entirely new area of
investigation might have been opened up.
Watkins’ silence prevented the Committee from
learning this information which could have been
vital to its future investigation. The Committee
was likewise entitled to elicit testimony showing
the truth or falsity of the prior testimony of the
witnesses who had involved Watkins and the union
with collaboration with the Party. If the testimony
was untrue a false picture of the relationship
between the union and the Party leaders would
have resulted. For these reasons there were ample
indications of the pertinency of the questions.
Barenblatt v. United States 360 U.S. 109 (1959)
court/360/109.html
Vote: 5 (Clark, Frankfurter, Harlan, Stewart,

Whittaker)
4 (Black, Brennan, Douglas, Warren)
OPINION OF THE COURT: Harlan

DISSENTING OPINIONS: Black, Brennan
Facts:
On February 25, 1953, a subcommittee of HUAC,
operating under Rule XI, the same authority it had
in the Watkins case, initiated a series of hearings
called “Communist Methods of Infiltration
(Education).” Before the hearings got under way,
HUAC’s chair stated that the committee’s purpose
would be to “ascertain the character, extent and
objects of Communist Party activities . . . carried
on by [teachers] who are subject to the directives
and discipline of the Communist Party.” More
generally, he observed,
It has been fully established in testimony

before congressional committees and before
the courts of our land that the Communist
Party of the United States is part of an
international conspiracy which is being used
as a tool or weapon by a foreign power to
promote its own foreign policy and which has
for its object the overthrow of the
governments of all non-Communist countries,
resorting to the use of force and violence, if
necessary.
Among those testifying before the committee was

Francis X. T. Crowley, who admitted that while he
was a graduate student at the University of
Michigan in 1950 he had belonged to a club with
links to the Communist Party. He also told the
committee that Lloyd Barenblatt, with whom he
had shared an apartment, had been a member as
well. Based on that information, in June 1954 the
committee subpoenaed Barenblatt to testify before
it. Since 1950 Barenblatt had been a psychology
instructor at Vassar, but after he received the
subpoena, the college refused to renew his
contract.
Barenblatt told the committee that he had been a

teaching fellow at Michigan, as Crowley had
testified. He also admitted that he knew Crowley.
But he refused to answer five questions about his
activities:
1. Are you now a member of the Communist

Party?
2. Have you ever been a member of the
Communist Party?
3. Now, you have stated you knew Francis
Crowley. Did you know Francis Crowley as a
member of the Communist Party?
4. Were you ever a member of the Haldane Club
of the Communist Party while at the University
of Michigan?
5. Were you a member while a student of the
University of Michigan Council of Arts,
Sciences, and Professions?
The House held him in contempt for unlawfully

refusing to answer these questions, and a U.S.
attorney sought and obtained a conviction against
him. On appeal to the Supreme Court, Barenblatt
was represented by the American Civil Liberties
Union.
Arguments:
For the petitioner, Lloyd Barenblatt:
Based on Watkins, it is clear that the language
of the legislation purportedly granting
investigative authority to the House Committee
was not sufficiently definite and specific to
constitute a delegation of power; therefore, the
committee lacks the authority to investigate by
compulsory process.
The committee’s “excessively broad charter,”
to quote the Court in Watkins, makes it difficult
to judge the pertinence of the questions. The
committee’s opening statement was an
insufficient clarification because Barenblatt
could not assess the reason why he was
summoned.
The questions infringed on Barenblatt’s First
Amendment right to expression and
association.

States:
Although the Court in Watkins criticized the
committee’s authorizing resolution, it did not
invalidate it. And now the Court must
acknowledge that Congress was quite serious
about investigating Communist Party
infiltration, with the functions primarily falling
to HUAC.
Whatever justification there may be for
criticism of HUAC’s authorizing resolution as
vague and imprecise, the resolution comes
before the Court with a “persuasive gloss of
legislative history” that shows beyond a doubt
that the House wants the committee to
investigate and report to the House on
communism in its various aspects and facets,
and the danger it poses to the United States.
Mr. Justice Harlan Delivered the Opinion of

the Court.
At the outset it should be noted that Rule XI

authorized this Subcommittee to compel testimony
within the framework of the investigative
authority conferred on the Un-American Activities
Committee. Petitioner contends that Watkins v.
United States [1957] nevertheless held the grant
of this power in all circumstances ineffective
because of the vagueness of Rule XI in delineating
the Committee jurisdiction to which its exercise
was to be appurtenant. . . .
The Watkins case cannot properly be read as

standing for such a proposition. A principal
contention in Watkins was that the refusals to
answer were justified because the requirement . . .
that the questions asked be “pertinent to the
question under inquiry” had not been satisfied.
This Court reversed the conviction solely on that
ground, holding that Watkins had not been
adequately apprised of the subject matter of the
Subcommittee’s investigation or the pertinency
thereto of the questions he refused to answer. . . .
Petitioner also contends, independently of

Watkins, that the vagueness of Rule XI deprived
the Subcommittee of the right to compel
testimony in this investigation into Communist
activity. . . . Granting the vagueness of the Rule,
we may not read it in isolation from its long
history in the House of Representatives. Just as
legislation is often given meaning by the gloss of
legislative reports, administrative interpretation,
and long usage, so the proper meaning of an
authorization to a congressional committee is not
to be derived alone from its abstract terms
unrelated to the definite content furnished them
by the course of congressional actions. The Rule
comes to us with a “persuasive gloss of legislative
history,” which shows beyond doubt that in
pursuance of its legislative concerns in the domain
of “national security” the House has clothed the
Un-American Activities Committee with pervasive
authority to investigate Communist activities in
this country. . . .
In light of this . . . history it can hardly be

seriously argued that the investigation of
Communist activities generally, and the attendant
use of compulsory process, was beyond the
purview of the Committee’s intended authority
under Rule XI. . . .
Undeniably a conviction for contempt . . . cannot

stand unless the questions asked are pertinent to
the subject matter of the investigation. Watkins v.
United States. But the factors which led us to rest
decision on this ground in Watkins were very
different from those involved here.
In Watkins the petitioner had made specific

objection to the Subcommittee’s questions on the
ground of pertinency; the question under inquiry
had not been disclosed in any illuminating
manner; and the questions asked the petitioner
were not only amorphous on their face, but in
some instances clearly foreign to the alleged
subject matter of the investigation—“Communism
in labor.”
. . . What we deal with here is whether petitioner

was sufficiently apprised of “the topic under
inquiry” thus authorized “and the connective
reasoning whereby the precise questions asked
relate[d] to it.” In light of his prepared
memorandum of constitutional objections there
can be no doubt that this petitioner was well
aware of the Subcommittee’s authority and
purpose to question him as it did. . . . The subject
matter of the inquiry had been identified at the
commencement of the investigation as Communist
infiltration into the field of education. Just prior to
petitioner’s appearance before the Subcommittee,
the scope of the day’s hearings had been
announced as “in the main communism in
education and the experiences and background in
the party by Francis X. T. Crowley. It will deal with
activities in Michigan, Boston, and in some small
degree, New York.” . . . [P]etitioner refused to
answer questions as to his own Communist Party
affiliations, whose pertinency of course was clear
beyond doubt. . . .
Our function, at this point, is purely one of

constitutional adjudication in the particular case
and upon the particular record before us, not to
pass judgment upon the general wisdom or
efficacy of the activities of this Committee in a
vexing and complicated field.
The precise constitutional issue confronting us is

whether the Subcommittee’s inquiry into
petitioner’s past or present membership in the
Communist Party transgressed the provisions of
the First Amendment, which of course reach and
limit congressional investigations.
. . . [T]he protections of the First Amendment,

unlike a proper claim of the privilege against self-
incrimination under the Fifth Amendment, do not
afford a witness the right to resist inquiry in all
circumstances. Where First Amendment rights are
asserted to bar governmental interrogation
resolution of the issue always involves a balancing
by the courts of the competing private and public
interests at stake in the particular circumstances
shown. . . .
The first question is whether this investigation

was related to a valid legislative purpose, for
Congress may not constitutionally require an
individual to disclose his political relationships or
other private affairs except in relation to such a
purpose.
That Congress has wide power to legislate in the

field of Communist activity in this Country, and to
conduct appropriate investigations in aid thereof,
is hardly debatable. The existence of such power
has never been questioned by this Court. . . .
Justification for its exercise in turn rests on the
long and widely accepted view that the tenets of
the Communist Party include the ultimate
overthrow of the Government of the United States
by force and violence, a view which has been
given formal expression by the Congress. . . .
Nor can we accept the further contention that this

investigation should not be deemed to have been
in furtherance of a legislative purpose because the
true objective of the Committee and of the
Congress was purely “exposure.” So long as
Congress acts in pursuance of its constitutional
power, the Judiciary lacks authority to intervene
on the basis of the motives which spurred the
exercise of that power. . . . The constitutional
legislative power of Congress in this instance is
beyond question . . .
We conclude that the balance between the

individual and the governmental interests here at
stake must be struck in favor of the latter, and
that therefore the provisions of the First
Amendment have not been offended.
MR. JUSTICE BLACK, with

whom THE CHIEF JUSTICE and
MR. JUSTICE DOUGLAS concur,
dissenting.
The First Amendment says in no equivocal
language that Congress shall pass no law
abridging freedom of speech, press, assembly or
petition. The activities of this Committee,
authorized by Congress, do precisely that, through
exposure, obloquy and public scorn. See Watkins
v. United States. The Court does not really deny
this fact but relies on . . . [t]he notion that despite
the First Amendment’s command Congress can
abridge speech and association if this Court
decides that the governmental interest in
abridging speech is greater than an individual’s
interest in exercising that freedom. . . .
I do not agree that laws directly abridging First

Amendment freedoms can be justified by a
congressional or judicial balancing process. [Our
previous cases cannot] be read as allowing
legislative bodies to pass laws abridging freedom
of speech, press and association merely because
of hostility to views peacefully expressed in a
place where the speaker had a right to be. Rule
XI, on its face and as here applied, since it
attempts inquiry into beliefs, not action—ideas
and associations, not conduct—does just that. . . .
But even assuming what I cannot assume, that

some balancing is proper in this case, I feel that
the Court after stating the test ignores it
completely. At most it balances the right of the
Government to preserve itself, against
Barenblatt’s right to refrain from revealing
Communist affiliations. Such a balance, however,
mistakes the factors to be weighed. . . . [I]t
completely leaves out the real interest in
Barenblatt’s silence, the interest of the people as a
whole in being able to join organizations, advocate
causes and make political “mistakes” without later
being subjected to governmental penalties for
having dared to think for themselves. It is this
right, the right to err politically, which keeps us
strong as a Nation. . . .
Finally, I think Barenblatt’s conviction violates the

Constitution because the chief aim, purpose and
practice of the House Un-American Activities
Committee, as disclosed by its many reports, is to
try witnesses and punish them because they are or
have been Communists or because they refuse to
admit or deny Communist affiliations. The
punishment imposed is generally punishment by
humiliation and public shame. . . .
The same intent to expose and punish is manifest

in the Committee’s investigation which led to
Barenblatt’s conviction. The declared purpose of
the investigation was to identify to the people of
Michigan the individuals responsible for the,
alleged, Communist success there. The Committee
claimed that its investigation “uncovered”
members of the Communist Party holding
positions in the school systems in Michigan; that
most of the teachers subpoenaed before the
Committee refused to answer questions on the
ground that to do so might result in self-
incrimination, and that most of these teachers had
lost their jobs. . . . It then stated that “the
Committee on Un-American Activities approves of
this action. . . .” The Court, today, barely mentions
these statements, which, especially when read in
the context of past reports by the Committee,
show unmistakably what the Committee was
doing. I cannot understand why these reports are
deemed relevant to a determination of a
congressional intent to investigate communism in
education, but irrelevant to any finding of
congressional intent to bring about exposure for
its own sake or for the purposes of punishment. . .
.
Ultimately, all the questions in this case really boil

down to one—whether we as a people will try
fearfully and futilely to preserve democracy by
adopting totalitarian methods, or whether in
accordance with our traditions and our
Constitution we will have the confidence and
courage to be free.
To return to our initial question: Did the Court treat

the claims of Barenblatt and Watkins consistently?
The majority in Barenblatt went to lengths to
indicate that this case amounted to nothing more nor
less than a “clarification” of Watkins. But many legal
analysts, not to mention Justice Hugo L. Black’s
dissent, suggest that Barenblatt signaled a retreat of
sorts from Watkins.
If it was a retreat, how can we explain the shift,

which occurred within a two-year period? There are
two possibilities. The first takes us back to our
discussion in Chapter 2 about constraints on the
Court imposed by the separation of powers system.
On this account, Barenblatt constituted “a strategic
withdrawal” because at the time the Court was
under a good deal of pressure from the public and
Congress.30 In particular, Watkins and other
“liberal” decisions on subversive activity and on
discrimination, such as Brown v. Board of Education
(1954), made the Court the target of numerous
congressional proposals. A few even sought to
remove the Court’s jurisdiction to hear cases
involving subversive activities. According to some
observers, the justices felt the heat and acceded to
congressional pressure.
30 C. Herman Pritchett, Congress versus the

Supreme Court, 1957–1960 (Minneapolis: University
of Minnesota Press, 1961), 12.
Another explanation is that personnel changes

produced a more conservative Court, that Barenblatt
was simply part of a trend ushered in by President
Dwight Eisenhower’s appointments of Charles
Whittaker and Potter Stewart. By way of support,
scholars point to the voting alignments in the two
cases and to the general trend in the disposition of
civil liberties cases: During the 1956 term, which
included Watkins, the Court ruled in favor of the civil
liberties claim in 74 percent of the cases; that figure
fell to 59 percent and 51 percent in the 1957 and
1958 terms, respectively.31
31 Walter F. Murphy, Congress and the Supreme

Court (Chicago: University of Chicago Press, 1962),
246.
Either way, the explanations indicate the

susceptibility of the Court to political influences
outside and inside its chambers. As the dangers
associated with the Cold War began to ebb, the
justices again evinced a change of heart on the
rights of witnesses. In case after case in the 1960s,
they reversed the convictions of many whom
Congress had cited for contempt. Their most
significant decision involved not Congress but a
state legislature. In Gibson v. Florida Legislative
Investigating Commission (1963), the Court reversed
the contempt conviction of a leader in the NAACP
(National Association for the Advancement of
Colored People) who refused to provide a committee
with the organization’s membership records.
Theodore R. Gibson argued that doing so would
abridge his First Amendment rights. The Supreme
Court distinguished this dispute from Barenblatt,
noting that the state had not sufficiently linked the
NAACP to subversive activities and, therefore, had
provided no compelling reason for wanting the
membership lists. More generally, the Court said,
[T]his Court’s prior holdings demonstrate that

there can be no question that the State has
power adequately to inform itself—through
legislative investigation, if it so desires—in order
to act and protect its legitimate and vital
interests. . . . It is no less obvious, however, that
the legislative power to investigate, broad as it
may be, is not without limit. . . . [W]e hold . . .
that groups which themselves are neither
engaged in subversive or other illegal or
improper activities nor demonstrated to have
any substantial connections with such activities
are to be protected in their [First Amendment
rights].
In essence, the Court sought to strike a balance

between the rights of individuals and those of
legislatures, no easy task because of the substantive
nature of the power to investigate. Certainly, as
HUAC’s activities illustrate, the opportunities for
abuse are plentiful, but when Congress invokes the
investigation power in a responsible manner, it can
serve as an important check on abuses of the system
made by other actors. We have only to consider
congressional hearings into the Watergate scandal,
examined in Chapter 4, to see the truth in this.
Amendment-Enforcing Power
The enumerated and implied powers we have
considered so far come from Article I, Section 8:
either Section 8 explicitly mentions them or they
derive from the necessary and proper clause.
Another important and frequently used source of
legislative authority, amendment-enforcing power,
comes from amendments to the Constitution. Seven
(another, the Eighteenth Amendment, was repealed
in 1933) contain some variant of the following
language: Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
For example, the first section of the Fifteenth
Amendment says, “The right of citizens of the United
States to vote shall not be denied . . . on account of
race,” and this statement is followed by an
enforcement provision: “The Congress shall have
power to enforce this article by appropriate
legislation.”
Although this language seems straightforward

enough, the justices have grappled with the meaning
of the word enforce. On one level, the task seems
easy: Presumably, the writers of this Reconstruction
amendment, which was ratified in 1870, wanted
Congress to implement its mandate. At the very least
then Congress could “enforce” the amendment by
passing laws that prevented the states from denying
blacks the right to vote.
And this Congress did do. When, in the 1950s, many

states, particularly those in the South, continued to
impose barriers such as literacy tests, poll taxes,
grandfather clauses, and primary rules aimed at
excluding blacks from voting, Congress used its
enforcement power under the Fifteenth Amendment
to enact legislation to end these practices. The 1957
Civil Rights Act prohibited attempts to intimidate or
prevent persons from voting in general or primary
elections for federal offices, empowered the attorney
general to seek an injunction when an individual was
deprived or about to be deprived of the right to vote,
gave the district courts jurisdiction over such
proceedings, and provided that any person cited for
contempt should be defended by counsel and
allowed to compel witnesses to appear. Another act,
passed three years later, enabled judges to appoint
“referees” to help blacks register to vote.
Few analysts seriously questioned the

constitutionality of these laws. Under the Fifteenth
Amendment, Congress seemed to have the authority
to ensure that states did not deny the right to vote,
and because these acts were aimed at accomplishing
that end, they were deemed appropriate under the
language of Section 2 of the amendment.
Where harder questions about the enforcement

power began to arise is when Congress wanted to
use the power—not to remedy proven violations of
the Fifteenth Amendment (and others)—but to
prevent future violations. These questions came in
the mid-1960s, when voting rights advocates
clamored for stronger laws. They claimed that the
existing congressional legislation was inadequate,
that the legal suits it authorized the attorney general
to undertake were too expensive and not all that
successful. Court rulings alone were insufficient to
prompt major changes, they argued, because many
local governments maintained seemingly
nondiscriminatory voting laws but administered
them in a discriminatory fashion. In other words, the
South was following the letter, but not the spirit, of
the laws. Voter registration figures for 1960 and
1964 support this observation: compared with
voting-age whites, far lower percentages of
nonwhites of voting age were registered to vote (see
Table 3-5).
Table 3-5
Sources: Revolution in Civil Rights (Washington, DC:

Congressional Quarterly, 1965), 43, 74; and Lee
Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas
G. Walker, The Supreme Court Compendium: Data,
Decisions, and Developments, 6th ed. (Thousand Oaks,
CA: CQ Press, 2015).
Note: We use the term nonwhite because that is how
the government reported voting data in the 1960s and
1970s. Now the Census Bureau, from where most of
the data in the table derive, reports data on voters
using the categories Black, Asian, Hispanic, and White.
It also allows respondents to choose more than one
race. We do not include data after 2000 because they
may not be comparable with earlier figures. Overall in
the South today about 70 percent of blacks and of
whites reported that they were registered to vote.
Data of the sort displayed in Table 3-5 convinced

Congress that a more aggressive policy was
required. The result was the Voting Rights Act of
1965, the most comprehensive—some say drastic—
measure yet. Part of the act seemed designed to
remedy proven violations of the Fifteenth
Amendment by placing a nationwide ban on any
standard, practice, or procedure that results in a
denial of the right to vote on account of race, and
authorizing legal action against states and
subdivisions that do not comply. Sections 4 and 5
seemed different: they gave the federal government
extraordinary power to prevent future violations of
the Fifteenth Amendment by regulating elections.
Section 4 created a “triggering” or “coverage”
formula to determine those states and political
subdivisions that will be subject to additional
scrutiny. The formula was based on the previous use
of racially discriminatory practices and low voter
registration or turnout. Section 5 created a
procedure known as “preclearance”: no jurisdiction
that qualifies under the coverage formula can
implement any changes in voting procedures until
they are approved by the U.S. Justice Department or
a three-judge district court in the District of
Columbia. Also under the act, the U.S. government
could send in federal examiners who, in turn, could
order state officials to “register all persons found
qualified to vote.”
The Voting Rights Act of 1965 marked a dramatic

change from earlier laws in which Congress simply
provided mechanisms to enforce existing rights.
Now it was issuing sanctions against states (the
preclearance requirements) and allowing the
attorney general to take action against certain areas,
all in an effort to prevent future violations, despite
the fact that no judicial body had found the states to
be engaging in unconstitutional activity.
Did Congress’s power to enforce amendments

support such legislation? Was the legislation
appropriate under the amendment’s language?
Given that the act constituted a dramatic intrusion of
the federal government into state operations, it is
not surprising that it was quickly challenged as an
unconstitutional use of congressional power. As you
read South Carolina v. Katzenbach, consider the
Court’s response, and not just its reaction to the
1965 act. How did it resolve the larger issue of the
scope of Congress’s amendment-enforcing power?
South Carolina v. Katzenbach 383 U.S. 301 (1966)

court/383/301.html

https://www.oyez.org/cases/1965/22_orig.
Vote: 8 (Brennan, Clark, Douglas, Fortas, Harlan,

Stewart, Warren, White)
1 (Black)

CONCURRING/DISSENTING OPINION: Black
Facts:
In accordance with the Voting Rights Act of 1965,
the director of the Census Bureau sent the
following notice to the attorney general in August
1965:
I have determined that in each of the following

States less than 50 per centum of the persons
of voting age residing therein voted in the
presidential election of November 1964:
Alabama, Alaska, Georgia, Louisiana,
Mississippi, South Carolina, [and] Virginia.
These seven states, as well as parts of several

others, met the criteria for coverage under the
Voting Rights Act’s remedial provisions.
Rather than accede to the federal government,

South Carolina asked the U.S. Supreme Court,
under its original jurisdiction, to find the act
unconstitutional. Five of the other six states
coming under the act’s purview—Alaska did not
participate—filed amicus curiae briefs in support
of South Carolina. Representing the United States
were Attorney General Nicholas Katzenbach and
Solicitor General Thurgood Marshall. Nineteen
states, mostly in the East and Midwest, submitted
an amicus curiae brief supporting the U.S.
government.32 In contrast to their Southern
counterparts, which supported South Carolina’s
states’ rights position, they argued that “although
a state has power to determine the qualifications
for voting, such power may not be used to violate
the Fourteenth and Fifteenth Amendments.” The
brief further stated, “Congress has power to enact
appropriate legislation precluding the states from
denying the right to vote on the basis of color.”
32 California and Illinois filed separate amicus

curiae briefs in support of the act.
Arguments:
For the plaintiff, State of South
Carolina:
The act is not an “appropriate” enforcement of

the Fifteenth Amendment. Because the federal
government is a government of delegated
powers with limited authority, it can legislate
only in a manner necessary and appropriate for
the purposes it seeks to accomplish. This is an
indeterminate sweep across the rights of South
Carolina and its citizens. The law is designed to
deal with “massive racial discrimination” in the
right to vote, but it does not cover some areas
where such discrimination exists, and it applies
to some innocent states and subdivisions.
As such, it violates the principle of equality of
statehood. States that do not come under the
act’s coverage are free to administer literacy
tests and other restrictions without suffering
prohibitions on their sovereign rights and
powers.
The act creates an arbitrary and irrefutable
presumption of a violation of the Fifteenth
Amendment by South Carolina.
For the defendant, Nicholas

Katzenbach:
Under Section 2 of the Fifteenth Amendment,
Congress has comprehensive authority to
protect and enforce the citizen’s right to vote
free of racial discrimination and to adopt
measures appropriate to that end. The choice
of means is largely a question for Congress
itself, as Chief Justice Marshall noted in
McCulloch v. Maryland.
The act does not interfere with powers
reserved to the states. Congress does not rely
on some inherent but unexpressed power. The
grant of power is explicit in Section 2 of the
Fifteenth Amendment.
Using participation in the presidential election
or the presence of barriers to the vote is not
arbitrary. Congress has developed ample
evidence that these are indicators of racial
discrimination. The triggering conditions must
be viewed as a single integrated measure for
quickly halting devices designed to deny or
abridge the right to vote on account of race in
violation of the Fifteenth Amendment.

The Voting Rights Act was designed by Congress

to banish the blight of racial discrimination in
voting, which has infected the electoral process in
parts of our country for nearly a century. The Act
creates stringent new remedies for voting
discrimination where it persists on a pervasive
scale, and in addition the statute strengthens
existing remedies for pockets of voting
discrimination elsewhere in the country. Congress
assumed the power to prescribe these remedies
from §2 of the Fifteenth Amendment, which
authorizes the National Legislature to effectuate
by “appropriate” measures the constitutional
prohibition against racial discrimination in voting.
We hold that the sections of the Act which are
properly before us are an appropriate means for
carrying out Congress’ constitutional
responsibilities and are consonant with all other
provisions of the Constitution. We therefore deny
South Carolina’s request that enforcement of
these sections of the Act be enjoined.
The constitutional propriety of the Voting Rights

Act of 1965 must be judged with reference to the
historical experience which it reflects. Before
enacting the measure, Congress explored with
great care the problem of racial discrimination in
voting. . . .
Two points emerge vividly from the voluminous

legislative history of the Act contained in the
committee hearings and floor debates. First:
Congress felt itself confronted by an insidious and
pervasive evil which had been perpetuated in
certain parts of our country through unremitting
and ingenious defiance of the Constitution.
Second: Congress concluded that the unsuccessful
remedies which it had prescribed in the past
would have to be replaced by sterner and more
elaborate measures in order to satisfy the clear
commands of the Fifteenth Amendment. . . .
. . . [P]rovisions of the Voting Rights Act of 1965

are challenged on the fundamental ground that
they exceed the powers of Congress and encroach
on an area reserved to the States by the
Constitution. . . .
The objections to the Act which are raised under

these provisions may therefore be considered only
as additional aspects of the basic question
presented by the case. Has Congress exercised its
powers under the Fifteenth Amendment in an
appropriate manner with relation to the States?
The ground rules for resolving this question are

clear. The language and purpose of the Fifteenth
Amendment, the prior decisions construing its
several provisions, and the general doctrines of
constitutional interpretation, all point to one
fundamental principle. As against the reserved
powers of the States, Congress may use any
rational means to effectuate the constitutional
prohibition of racial discrimination in voting. . . .
Section 1 of the Fifteenth Amendment declares

that “[t]he right of citizens of the United States to
vote shall not be denied or abridged by the United
States or by any State on account of race, color, or
previous condition of servitude.” This declaration
has always been treated as self-executing and has
repeatedly been construed [by this Court], without
further legislative specification, to invalidate state
voting qualifications or procedures which are
discriminatory on their face or in practice. [Our]
decisions have been rendered with full respect for
the general rule . . . that States “have broad
powers to determine the conditions under which
the right of suffrage may be exercised.” The gist of
the matter is that the Fifteenth Amendment
supersedes contrary exertions of state power.
South Carolina contends that . . . to allow an

exercise of this authority by Congress would be to
rob the courts of their rightful constitutional role.
On the contrary, §2 of the Fifteenth Amendment
expressly declares that “Congress shall have
power to enforce this article by appropriate
legislation.” By adding this authorization, the
Framers indicated that Congress was to be chiefly
responsible for implementing the rights created in
§1. “It is the power of Congress which has been
enlarged. Congress is authorized to enforce the
prohibitions by appropriate legislation. Some
legislation is contemplated to make the [Civil War]
amendments fully effective.” Accordingly, in
addition to the courts, Congress has full remedial
powers to effectuate the constitutional prohibition
against racial discrimination in voting.
The basic test to be applied in a case involving §2

of the Fifteenth Amendment is the same as in all
cases concerning the express powers of Congress
with relation to the reserved powers of the States.
Chief Justice Marshall laid down the classic
formulation, 50 years before the Fifteenth
Amendment was ratified:
“Let the end be legitimate, let it be within the

scope of the constitution, and all means which
are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist
with the letter and spirit of the constitution,
are constitutional.” McCulloch v. Maryland
[1819].
The Court has subsequently echoed his language

in describing each of the Civil War Amendments:
“Whatever legislation is appropriate, that is,

adapted to carry out the objects the
amendments have in view, whatever tends to
enforce submission to the prohibitions they
contain, and to secure to all persons the
enjoyment of perfect equality of civil rights
and the equal protection of the laws against
State denial or invasion, if not prohibited, is
brought within the domain of congressional
power.” Ex parte Virginia [1880].
This language was again employed, nearly 50
years later, with reference to Congress’ related
authority under §2 of the Eighteenth Amendment.
We therefore reject South Carolina’s argument

that Congress may appropriately do no more than
to forbid violations of the Fifteenth Amendment in
general terms—that the task of fashioning specific
remedies or of applying them to particular
localities must necessarily be left entirely to the
courts. Congress is not circumscribed by any such
artificial rules under §2 of the Fifteenth
Amendment. In the oft-repeated words of Chief
Justice Marshall, referring to another specific
legislative authorization in the Constitution, “This
power, like all others vested in Congress, is
complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations, other
than are prescribed in the constitution.” Gibbons
v. Ogden [1824]. . . .
After enduring nearly a century of widespread

resistance to the Fifteenth Amendment, Congress
has marshalled an array of potent weapons
against the evil, with authority in the Attorney
General to employ them effectively. Many of the
areas directly affected by this development have
indicated their willingness to abide by any
restraints legitimately imposed upon them. We
here hold that the portions of the Voting Rights
Act properly before us are a valid means for
carrying out the commands of the Fifteenth
Amendment. Hopefully, millions of non-white
Americans will now be able to participate for the
first time on an equal basis in the government
under which they live. We may finally look forward
to the day when truly “[t]he right of citizens of the
United States to vote shall not be denied or
abridged by the United States or by any State on
account of race, color, or previous condition of
servitude.”
The bill of complaint is dismissed.
Bill dismissed.
MR. JUSTICE BLACK,

concurring and dissenting.
Though . . . I agree with most of the Court’s
conclusions, I dissent from its holding that every
part of §5 of the Act is constitutional. Section 4
(a), to which §5 is linked, suspends for five years
all literacy tests and similar devices in those
States coming within the formula of §4(b). Section
5 goes on to provide that a State covered by §4(b)
can in no way amend its constitution or laws
relating to voting without first trying to persuade
the Attorney General of the United States or the
Federal District Court for the District of Columbia
that the new proposed laws do not have the
purpose and will not have the effect of denying the
right to vote to citizens on account of their race or
color. I think this section is unconstitutional on at
least two grounds.
(a) The Constitution gives federal courts

jurisdiction over cases and controversies only. If it
can be said that any case or controversy arises
under this section which gives the District Court
for the District of Columbia jurisdiction to approve
or reject state laws or constitutional amendments,
then the case or controversy must be between a
State and the United States Government. But it is
hard for me to believe that a justifiable
controversy can arise in the constitutional sense
from a desire by the United States Government or
some of its officials to determine in advance what
legislative provisions a State may enact or what
constitutional amendments it may adopt. If this
dispute between the Federal Government and the
States amounts to a case or controversy it is a far
cry from the traditional constitutional notion of a
case or controversy as a dispute over the meaning
of enforceable laws or the manner in which they
are applied. And if by this section Congress has
created a case or controversy, and I do not believe
it has, then it seems to me that the most
appropriate judicial forum for settling these
important questions is this Court acting under its
original Art. III, §2, jurisdiction to try cases in
which a State is a party. At least a trial in this
Court would treat the States with the dignity to
which they should be entitled as constituent
members of our Federal Union. . . .
(b) My second and more basic objection to §5 is

that Congress has here exercised its power under
§2 of the Fifteenth Amendment through the
adoption of means that conflict with the most
basic principles of the Constitution. As the Court
says the limitations of the power granted under §2
are the same as the limitations imposed on the
exercise of any of the powers expressly granted
Congress by the Constitution. The classic
formulation of these constitutional limitations was
stated by Chief Justice Marshall when he said in
McCulloch v. Maryland, “Let the end be
legitimate, let it be within the scope of the
spirit of the constitution, are constitutional” [our
italics]. Section 5, by providing that some of the
States cannot pass state laws or adopt state
constitutional amendments without first being
compelled to beg federal authorities to approve
their policies, so distorts our constitutional
structure of government as to render any
distinction drawn in the Constitution between
state and federal power almost meaningless. One
of the most basic premises upon which our
structure of government was founded was that the
Federal Government was to have certain specific
and limited powers and no others, and all other
power was to be reserved either “to the States
respectively, or to the people.” Certainly if all the
provisions of our Constitution which limit the
power of the Federal Government and reserve
other power to the States are to mean anything,
they mean at least that the States have power to
pass laws and amend their constitutions without
first sending their officials hundreds of miles away
to beg federal authorities to approve them.
Moreover, it seems to me that §5 which gives
federal officials power to veto state laws they do
not like is in direct conflict with the clear
command of our Constitution that “The United
States shall guarantee to every State in this Union
a Republican Form of Government.” I cannot help
but believe that the inevitable effect of any such
law which forces any one of the States to entreat
federal authorities in far-away places for approval
of local laws before they can become effective is to
create the impression that the State or States
treated in this way are little more than conquered
provinces. . . . Of course I do not mean to cast any
doubt whatever upon the indisputable power of
the Federal Government to invalidate a state law
once enacted and operative on the ground that it
intrudes into the area of supreme federal power.
But the Federal Government has heretofore
always been content to exercise this power to
protect federal supremacy by authorizing its
agents to bring lawsuits against state officials
once an operative state law has created an actual
case and controversy. A federal law which
assumes the power to compel the States to submit
in advance any proposed legislation they have for
approval by federal agents approaches
dangerously near to wiping the States out as
useful and effective units in the government of our
country. I cannot agree to any constitutional
interpretation that leads inevitably to such a
result. . . .
In this and other prior Acts Congress has quite

properly vested the Attorney General with
extremely broad power to protect voting rights of
citizens against discrimination on account of race
or color. Section 5 viewed in this context is of very
minor importance and in my judgment is likely to
serve more as an irritant to the States than as an
aid to the enforcement of the Act. I would hold §5
invalid for the reasons stated above with full
confidence that the Attorney General has ample
power to give vigorous, expeditious and effective
protection to the voting rights of all citizens.
Katzenbach was a landmark opinion in two regards.
First, it upheld the Voting Rights Act, which in turn
had a marked effect on closing the gap between
white and black voter registration rates. Throughout
the United States, blacks and whites today report
nearly equal registration rates of about 70 percent
each, including in the South.
Second, and more relevant here, Katzenbach greatly

enhanced Congress’s amendment-enforcing power,
placing it on the same level as implied powers.
Indeed, the Court’s standard for evaluating
amendment-enforcing power, the words “appropriate
legislation,” is not so different from the one it uses to
adjudicate under the necessary and proper clause.
Not only does Chief Justice Warren cite McCulloch v.
Maryland with approval, but also his logic reflects
Marshall’s. Compare Marshall’s words: “Let the end
be legitimate, let it be within the scope of the
constitution, and all means which are appropriate . .
. are constitutional,” with Warren’s: “Congress may
use any rational means to effectuate the
constitutional prohibition of racial discrimination in
voting.” To Warren, this included remedying proven
violations, of course, but also preventing future
violations through the preclearance mechanism.
But, just as is true for implied powers, the

amendment-enforcing power is not without limits—a
point the Warren Court’s more conservative
successors have made quite clear. Consider, first, the
Rehnquist Court case of City of Boerne v. Flores
(1997), which we mentioned in Chapter 2. At issue
was the Religious Freedom Restoration Act of 1993
(RFRA), which Congress passed by overwhelming
majorities in response to the Court’s 1990 decision
in Employment Division v. Smith. RFRA directed the
Court to adopt a particular standard of law in
constitutional cases involving the free exercise
clause of the First Amendment—a standard the
Court had rejected in Smith—that would presumably
make it easier for people who believed that
government had burdened their right to practice
their religion to prevail in court. In passing some
parts of RFRA, Congress relied on the Fourteenth
Amendment’s enforcement provision. The first
section of the Amendment reads, in relevant part,
“No state shall . . . deprive any person of life, liberty,
or property, without due process of law.” Section 5,
the enforcement provision, is nearly identical to the
one in the Fifteenth Amendment: “The Congress
shall have power to enforce, by appropriate
legislation, the provisions of this article.”
To the United States, which entered the case as an

amicus curiae, RFRA was perfectly permissible
because Congress was protecting one of the
liberties, the free exercise of religion, which the
Court had made applicable to the states by the
Fourteenth Amendment’s due process clause.
The Supreme Court disagreed. Although it

acknowledged that “Congress can enact legislation
under §5 [of the Fourteenth Amendment] enforcing
the constitutional right to the free exercise of
religion,” it also said that “Congress cannot decree
the substance of the Fourteenth Amendment’s
restrictions on the States. Legislation which alters
the meaning of the Free Exercise Clause cannot be
said to be enforcing the Clause.”
How would the Court determine where to draw the

line between legitimate use of the enforcement
power—laws that remedy or prevent violations of an
amendment—and those that are not—laws that alter
(in this case, expand) the reach of constitutional
provisions? The Court admitted that this was not an
easy task and that Congress must be given “wide
latitude,” but it did provide a guideline.
There must be a congruence and proportionality

between the injury to be prevented or remedied
and the means adopted to that end. Lacking such
a connection, legislation may become
substantive in operation and effect. History and
our case law support drawing the distinction,
one apparent from the text of the Amendment.
According to the Court, the Voting Rights Act at

issue in Katzenbach met this “congruent and
proportional” standard but RFRA did not. Why? “In
contrast to the record which confronted Congress
and the judiciary in the voting rights cases,” the
Court wrote, “RFRA’s legislative record lacks
examples of modern instances of generally
applicable laws passed because of religious bigotry.”
To the Court, the lack of modern-day examples of
religious bigotry—not one law in forty years—
showed that RFRA was so out of proportion to a
“remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent,
unconstitutional behavior.”33 The link between the
prohibited conduct and the constitutional violation
was simply insufficient. As a result, the Court could
only assume that RFRA was designed to expand
protections under the Fourteenth Amendment, and
not to enforce existing protections.
33 Along similar lines, the Court noted that the

Voting Rights Act was limited to those regions of the
country “where voting discrimination had been most
flagrant.” In the case of RFRA, no such limits
existed. The act “is not designed to identify and
counteract state laws likely to be unconstitutional
because of their treatment of religion.”
The Roberts Court applied similar logic in Shelby

County v. Holder (2013), a case that returns us to
the Voting Rights Act of 1965. Recall that if states
(or subdivisions) come under the coverage formula
(Section 4 of the act), then they qualify for
preclearance by the U.S. Justice Department or a
special court (Section 5). Both Section 4 and Section
5 were seen as temporary measures that would
expire in five years. But Congress extended the life
of these provisions several times—most recently,
enacting a twenty-five-year extension in 2006.
Shelby County, a “covered” county in Alabama,
brought suit, asking the district court to strike down
Sections 4 and 5 as unconstitutional because the
coverage formula that the Congress used in 2006
was based on 1965 racial discrimination data that no
longer represented conditions in the affected states.
The Supreme Court did not strike down Section 5 of

the law, but it did hold that Congress had exceeded
its powers when it imposed restrictions on specific
states based on forty-year-old data. Without saying
as much, the majority’s rationale seems to draw, in
part, on the congruent and proportional analysis in
the RFRA case: the 2006 reauthorization was not
congruent and proportional because it imposed
obligations on some states beyond those that the
Constitution requires, without recent history or data
showing that those requirements are necessary to
prevent violations of the Fifteenth Amendment.
Writing in dissent, Justice Ginsburg took issue with

this claim:
The Court has time and again declined to upset

legislation of this genre unless there was no or
almost no evidence of unconstitutional action by
States. See, e.g., City of Boerne v. Flores (1997)
(legislative record “mention[ed] no episodes [of
the kind the legislation aimed to check]
occurring in the past 40 years”). No such claim
can be made about the congressional record for
the 2006 VRA [Voting Rights Act]
reauthorization. Given a record replete with
examples of denial or abridgment of a
paramount federal right, the Court should have
left the matter where it belongs: in Congress’
bailiwick.
As of this writing, the future of coverage provision

remains very much in doubt.34 Although proposals
have been introduced to remedy the Court’s
problems with the existing coverage formula, none
has received serious attention in either the Senate or
the House.
34 As does preclearance; after all, without a

coverage formula, preclearance cannot exist.
Inherent Powers
In his position paper to President Washington over
the constitutionality of the bank, Hamilton wrote,
“[T]here are implied [as] well as express powers, and
that the former are as effectually delegated as the
latter.” This much we have already discussed. But
Hamilton also noted “another class of powers”:
It will not be doubted, that if the United States

should make a conquest of any of the territories
of its neighbors, they would possess sovereign
jurisdiction over the conquered territory. This
would be rather a result, from the whole mass of
the powers of the government, and from the
nature of political society, than a consequence of
either of the powers specially enumerated.
Hamilton referred to these as “resulting powers.”

Justice Story thought they could be another sort of
implied power; for example, possessing sovereign
jurisdiction over a conquered territory “could be
deemed, if an incident to any, an incident to the
power to make war.” But Story was also quick to
agree with Hamilton: there are powers, “nowhere
declared in the Constitution,” that are “natural
incident(s), resulting from the sovereignty and
character of the national government.”35
35 Joseph Story, Commentaries on the Constitution,

vol. 3, chap. XXIV; available at
http://constitution.org/js/js_324.htm.
Some scholars continue to refer to “resulting”

powers, but in today’s nomenclature we tend to
think about Hamilton’s and Story’s versions as
“inherent powers.” The idea is that federal
government has certain inherent powers that are
neither explicit nor directly implied by the
Constitution, but that somehow attach themselves to
sovereign states (see Table 3-4).
Some writers characterize the congressional power
to investigate as an inherent, rather than implied,
power, as we noted earlier. Earl Warren wrote as
much in his majority opinion in Watkins: “The power
of the Congress to conduct investigations is inherent
in the legislative process.” On this account,
Congress is the lawmaking body, and an inherent
quality of such an institution is the power to
investigate.
Though the power of Congress to conduct

investigations is not very controversial, the notion of
inherent powers is. Some argue that inherent
powers cannot possibly conform with the vision of a
federal government limited to its enumerated
powers or those that can be inferred from them. As
Madison wrote in Federalist No. 45, “The powers
delegated by the proposed Constitution to the
Federal Government, are few and defined. Those
which are to remain in the State Governments are
numerous and indefinite.” The Tenth Amendment
seems to echo Madison’s sentiment: “The powers not
delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” Allowing the
federal government to claim powers that it cannot
trace back to the Constitution, some scholars argue,
runs the risk of a tyranny—an end the Constitution
was designed to prevent.
And yet the Court has not rejected the idea that
there are inherent powers. Many of the cases in this
area pertain to claims of inherent presidential power,
not congressional power, as we will see in Chapters
4 and 5. There we will consider several cases in
which a president claims to have special authority to
run the nation and protect it during times of national
emergency.
One case that we discuss in Chapter 4, United

States v. Curtiss-Wright Export Corp. (1936),
though, deserves mention here because it is among
the Court’s clearest statements of the inherent
power of the federal government—including
Congress.
At issue in Curtiss-Wright was a resolution passed by

Congress in 1934 that gave President Franklin
Roosevelt authority to prohibit the sale of arms to
warring countries. Shortly thereafter, Roosevelt
issued an order embargoing weapon sales to Bolivia
and Paraguay. Curtiss-Wright, a company that built
airplanes, refused to comply with the order and tried
to get around it by disguising bombers as passenger
planes. Eventually, it got caught and was charged
with violating the order.
Curtiss-Wright, in turn, challenged the

constitutionality of the government’s action. Among
its arguments was that the 1934 resolution was
invalid because Congress had given “uncontrolled”
lawmaking “discretion” to the president. On this
score, the company’s reasoning appeared strong: in
Panama Refining Company v. Ryan (1935) the
Court had struck down a congressional act on the
ground that the legislature had delegated its
lawmaking authority to the president without
sufficient guidelines.36 In Curtiss-Wright’s view, the
1934 resolution was no different from the law struck
down in Panama Refining.
36 For more on Panama Refining Company and other

delegation-of-powers cases, see Chapter 5.
The U.S. government tried to distinguish the facts in

this case from those in the 1935 decision, saying that
the congressional delegation of power in Panama
Refining involved domestic, not international, affairs.
This distinction was important, in the government’s
argument, because “from the beginning of the
government, in the conduct of foreign affairs,
Congress has followed the practice of conferring
upon the President power similar to that conferred
by the present resolution.” By way of example, U.S.
attorneys indicated that as early as 1794 Congress
had given the president the power to determine
when embargoes should be laid “upon vessels in
ports of the United States bound for foreign ports.”
Though it is possible, even likely, that the Court

would have struck down the congressional
delegation in Curtiss-Wright, it agreed with the
government on the difference between domestic and
foreign relations. As Justice George Sutherland, who
had gained substantial international policy-making
experience in the 1920s,37 wrote for the majority,
37 In 1921 he chaired the advisory committee of the
U.S. delegation to the International Conference on
the Limitation of Naval Armaments and the following
year served as counsel in arbitration between the
United States and Norway over shipping.
The two classes of powers are different, both in

respect of their origin and their nature. The
broad statement that the Federal government
can exercise no powers except those specifically
enumerated in the Constitution, and such
implied powers as are necessary and proper to
carry into effect the enumerated powers, is
categorically true only in respect of our internal
affairs. . . .
“The investment of the Federal government with the

powers of external sovereignty,” the Court
continued, “did not depend upon the affirmative
grants of the Constitution.” Indeed, the majority
went so far as to write,
The powers to declare and wage war, to

conclude peace, to make treaties, to maintain
diplomatic relations with other sovereignties, if
they had never been mentioned in the
Constitution, would have vested in the Federal
government as necessary concomitants of
nationality. . . . As a member of the family of
nations, the right and power of the United States
in that field are equal to the right and power of
the other members of the international family.
Otherwise, the United States is not completely
sovereign. . . .
In other words, in the field of domestic affairs the

federal government is limited to its enumerated and
implied powers. But “authority over foreign affairs is
an inherent power, which attaches automatically to
the federal government as a sovereign entity, and
derives from the Constitution only as the
Constitution is the creator of that sovereign
entity.”38 It is not Congress specifically but the
federal government that enjoys complete authority
over foreign relations, which is an inherent power of
sovereign nations, one that is derived not from their
charters, but from their status.
38 Pritchett, Constitutional Law of the Federal

System, 305.
On what basis did the Court draw this distinction? In

its view, the U.S. Constitution transferred some
domestic powers from the states to the federal
government, leaving some with the states or the
people. That is why Congress cannot exercise
authority over internal affairs beyond that which is
explicitly enumerated or can be implied from that
document. In contrast, no such transfer occurred or
could have occurred for authority over foreign
affairs: because the states never had such power to
begin with, they could not bestow it on the federal
government.
To be sure, there is support for the distinction the

Court made between domestic and foreign affairs,
and we explore the topic in greater detail in
Chapters 4 and 5. Suffice it to note here that some of
the framers would have approved of Curtiss-Wright
—including Hamilton. As he wrote in Federalist No.
23, “The circumstances that endanger the safety of
nations are infinite, and for this reason no
constitutional shackles can wisely be imposed on the
power to which the care of it is committed.” The
idea, in short, was not novel, and Sutherland had
espoused it during his career.
But Curtiss-Wright also has provoked criticism.

Some historians and legal scholars assert that
Sutherland’s historical analysis was inaccurate:
“There is evidence that, after independence, at least
some of the erstwhile colonies . . . considered
themselves sovereign, independent states.”39 More
relevant here, as we pointed out earlier, are the risks
with allowing the government—Congress, the
president, or both—to exercise “inherent powers,”
whether in the domestic or the foreign realm. At the
very least, can it be that the language of the Tenth
Amendment, which limits the federal government to
its delegated powers, applies only to domestic
powers and not to foreign affairs? Curtiss-Wright
seems to teach this lesson, and it makes some
analysts squirm.
39 Ibid., 23.
Finally, we might raise questions about whether

Sutherland’s opinion remains authoritative doctrine.
Have more recent cases undercut its view that the
federal government possesses extraconstitutional
authority over foreign affairs that provide it with
considerable leeway? You will have a chance to think
about this when you read the next two chapters.
Federal Legislature:
Constitutional Interpretations
Curtiss-Wright gives extraordinary authority to the
federal government in the realm of foreign affairs, as
you now know. But as you probably realize by now,
the Court has also allowed Congress a good deal of
leeway in domestic affairs, especially in disputes
involving that body’s power to regulate its own
affairs and to enact legislation, even if a law intrudes
on state operations.
The degree of deference the Court typically (but,

again, not always) accords to Congress, some
scholars argue, suggests the pervasiveness of
congressional interpretation of the Constitution.40
After all, when legislators debate and enact bills
pursuant to the necessary and proper clause, they
must interpret the word proper. Likewise, when they
discuss legislation based on their amendment-
enforcing powers, as they did in the Voting Rights
Act at issue in Katzenbach, they must agree on the
meaning of the phrase appropriate legislation. That
the Court more-than-occasionally defers to the
legislature’s interpretation implies that the justices
recognize that they do not have a monopoly on
constitutional interpretation.
40 This section draws on Murphy, “Who Shall

Interpret the Constitution?”; and chapters in Devins
and Whittington, Congress and the Constitution.
It is also the case that most of the actions taken by

Congress never reach the Supreme Court, thereby
virtually ensuring that legislators have the last word.
When Congress passed one of the most restrictive
laws in American history, the Sedition Act of 1798,
which prohibited writings or speech against the U.S.
government, the Court had no opportunity to review
its constitutionality before it expired in 1801.
Likewise, during the Clinton impeachment
proceedings in 1999, legislators made innumerable
judgments about their powers—judgments the Court
never reviewed.
Again, this is not to say that the Court never

overturns congressional “interpretations.” Boerne
and Shelby County certainly prove otherwise. It is
rather to say that most people, even Supreme Court
justices, believe that Congress takes seriously the
need to reach constitutional judgments as it goes
about its lawmaking task.
But questions do arise over who should be the
“ultimate interpreter” of the Constitution. As we
discussed in Chapter 2, the answer may be less
obvious than you think. Not surprisingly, many
justices have taken the position that it should be the
Court. Chief Justice Charles Evans Hughes once
said, “It is only from the Supreme Court that we can
obtain a sane well-ordered interpretation of the
Constitution.” And, in cases such as Boerne and
Shelby County, contemporary justices seem to agree.
At the same time, some commentators point out that
there is no reason the Court should be the ultimate
interpreter, and in fact Congress may be better
suited to that task. After all, because members of
Congress are elected, “switching final authority to
interpret the Constitution from the Supreme Court
to Congress would increase democratic inputs into
constitutional interpretation.”41
41 Tushnet, “The Story of City of Boerne v. Flores,”

524.
Based on your reading of the cases and narrative in

this chapter, which side do you think is right? As you
consider that question, keep in mind that
commentators have also argued the president does
(and should) play a role in constitutional
interpretation. In the next two chapters, you will
have an opportunity to consider how presidents have
undertaken that task, and how the Court has
responded.
Annotated Readings
For discussion of Congress’s authority over its
structure and operations and the sources and scope
of lawmaking power, see David Gray Adler and Larry
N. George, eds., The Constitution and the Conduct of
American Foreign Policy (Lawrence: University Press
of Kansas, 1996); Chandler Davidson and Bernard
Grofman, eds., Quiet Revolution in the South: The
Impact of the Voting Rights Act, 1965–1990
Ward E. Y. Elliott, The Rise of Guardian Democracy:
The Supreme Court’s Role in Voting Rights Disputes,
1845–1969 (Cambridge, MA: Harvard University
Press, 1974); Richard E. Ellis, Aggressive
Nationalism; McCulloch v. Maryland and the
Foundation of Federal Authority in the Young
Republic (New York: Oxford University Press, 2007);
Gerald Gunther, ed., John Marshall’s Defense of
McCulloch v. Maryland (Stanford, CA: Stanford
University Press, 1969); Louis Henkin, Foreign
Affairs and the United States Constitution (New
York: Oxford University Press, 1996); Gary Lawson,
Geoffrey P. Miller, Robert G. Natelson, and Guy I.
Seidman, The Origins of the Necessary and Proper
Clause (New York: Cambridge University Press,
2010); Mark R. Killenbeck, M’Culloch v. Maryland:
Securing a Nation (Lawrence: University Press of
Kansas, 2006); M. Nelson McGeary, The
Development of Congressional Investigative Power
(New York: Columbia University Press, 1940).
Books on Congress–Court relations and
constitutional deliberations in Congress include Jeb
Barnes, Overruled? Legislative Overrides, Pluralism,
and Contemporary Court–Congress Relations
(Stanford, CA: Stanford University Press, 2004);
Campbell C. Colton and John F. Stack Jr., eds.,
Congress Confronts the Court: The Struggle for
Legitimacy and Authority in Lawmaking (Lanham,
MD: Rowman & Littlefield, 2001); David P. Currie,
The Constitution in Congress: The Federalist Period,
1789–1801 (Chicago: University of Chicago Press,
1997); Neal Devins and Keith E. Whittington, eds.,
Congress and the Constitution (Durham, NC: Duke
University Press, 2005); Louis Fisher, The Supreme
Court and Congress: Rival Interpretations
(Washington, DC: CQ Press, 2009); Robert A.
Katzmann, Courts and Congress (Washington, DC:
Brookings Institution, 1997); Robert A. Katzmann,
Judges and Legislators: Toward Institutional Comity
(Washington, DC: Brookings Institution, 1988);
Walter F. Murphy, Congress and the Court (Chicago:
University of Chicago Press, 1962); Mitchell
Pickerill, Constitutional Deliberation in Congress:
The Impact of Judicial Review in a Separated System
(Durham, NC: Duke University Press, 2004); C.
Herman Pritchett, Congress versus the Supreme
Court, 1957–1960 (Minneapolis: University of
Minnesota Press, 1961); John R. Schmidhauser and
Larry L. Berg, The Supreme Court and Congress
(New York: Free Press, 1972); Charles Warren,
Congress, the Constitution, and the Supreme Court
(Boston: Little, Brown, 1935).
Chapter Four The Executive
THE CONSTITUTION’S FRAMERS would have

trouble recognizing today’s presidency. To be sure,
they believed that the Articles of Confederation were
flawed because they did not provide for an
executive, but many delegates had serious
reservations about awarding too much authority to
the executive branch after what they had suffered
under the British monarchy. In fact, those who
supported the New Jersey Plan envisioned a plural
executive in which two individuals would share the
chief executive position as insurance against
excessive power accruing to a single person. With
little doubt the framers would be amazed at the far-
reaching domestic and foreign powers wielded by
modern presidents, to say nothing of the hundreds of
departments, agencies, and bureaus that constitute
the executive branch.
Some of this growth likely traces to the rather loose

wording of Article II. The article has neither the
detail nor the precision of the framers’ Article I
description of the legislature; instead, it is
dominated by issues of selection and removal and
devotes less attention to powers and limitations. The
wording is quite broad. Presidents are given the
undefined “executive power” of the United States
and are admonished to take care that the laws are
“faithfully executed.” Other grants of authority, such
as the president’s role as “Commander in Chief of
the Army and Navy” and the preferential position
given the chief executive in matters of foreign policy,
allow for significant expansion.
The presidency also has grown in response to a

changing world. As American society became more
complex, the number of areas requiring government
action mushroomed. Overwhelmed by these
responsibilities, among other reasons, Congress
delegated to the executive branch authority that the
framers probably did not anticipate. In addition, the
expanding importance of defense and foreign policy
demanded a more powerful presidency.
As these changes took place, the Supreme Court was

frequently called on to resolve disputes over the
constitutional limits of executive authority. This
chapter explores how the justices have interpreted
Article II of the Constitution. It is divided into five
sections. The first and second provide overviews of
the structure of the presidency and the tools of
presidential power, respectively. The third takes up
the Supreme Court’s general response to questions
concerning presidential power, the fourth considers
the domestic powers of the president, and the fifth
explores the role of the president in external
relations.
The Structure of the Presidency

When the framers met in Philadelphia in 1787, they
were uncertain about how to create an executive for
the new nation.1 They knew all too well the dangers
of a strong executive. Indeed, widespread
dissatisfaction with the British system led states,
during the period from 1776 to 1778, to adopt
constitutions that established weak governorships.
State executives were given short terms of office,
with few powers, and those few often shared with a
council. By 1787, however, some states had become
sufficiently dissatisfied with their weak
governorships that they strengthened them. During
the war with Britain, it had become apparent that
state executives were too inexperienced and
politically constrained to maintain an effective effort.
Therefore, by the time the framers met, a range of
executive systems existed in the states—from those
that remained weak to those that were quite strong.
1 We adopt some of this discussion from Farber and

Sherry, A History of the American Constitution, 107–
110. Farber and Sherry contains excerpts of the
debates over Article II.
Which position would the founders take? Answers

come in Article II of the Constitution, which outlines
the structure and powers of the presidency. We
begin here with the structure of the institution,
focusing on four topics: the president’s selection,
removal, tenure, and succession.
Selection of the President
The convention delegates considered several
mechanisms for choosing the president, including,
notably, selection by the national legislature. In the
end they devised a novel solution: the Electoral
College. Until then, the executives of most nations
were chosen by bloodline, military power, or
legislative selection (see Box 4-1). No other country
had experimented with a system like the Electoral
College apparatus created in Philadelphia. Perhaps
because it had never been tried, the system, as we
shall see, was plagued with defects that required
correction over time.
The framers designed the Electoral College system

to allow the general electorate to have some
influence on the selection of the chief executive
without resorting to direct popular election. Then, as
now, the plan called for each state to select
presidential electors equal in number to the state’s
delegates to the Senate and the House of
Representatives. The Constitution empowered the
state legislatures to decide the method of choosing
the electors. Popular election was always the most
common method, but in the past some state
legislatures voted for the electors. The Electoral
College system was based on the theory that the
states would select as electors their most qualified
citizens, who would exercise their best judgment in
the selection of the president. And perhaps for that
reason Article II specifies no qualifications for
electors (other than disqualifying those who hold
federal office).
Box 4-1 The American Presidency in Global

Perspective
THE METHOD for selecting the president

generated a good deal of discussion at the 1787
Constitutional Convention. The delegates
considered and rejected several mechanisms,
including selection by the national legislature. In
the end the framers devised a novel solution:
slates of electors equal to the congressional
delegation of each state would elect the president.
In many countries—especially in Western Europe

but also in Israel and Japan—chief executives are
not chosen in elections separate from those of the
legislative branch. In these parliamentary
systems, executives may be the leaders of parties
that win legislative elections or are chosen by an
elected legislature, as in Germany and the United
Kingdom. Sometimes leaders continue to hold
seats in the parliament. This practice is forbidden
by the U.S. Constitution, which states, “[N]o
Person holding any Office under the United States,
shall be a Member of either House during his
Continuance in Office.”
Under the parliamentary system, if the electorate

votes the ruling party in the legislature out of
office, the executive also changes. Moreover, the
executive is typically accountable to such a
legislature: the membership may remove a leader
after a vote of no confidence. Because of the
importance of no-confidence votes, many nations
have developed elaborate procedures for
considering motions of no confidence. For
example, the Italian parliament may not debate a
no-confidence motion for more than three days,
and the motion must be signed by at least one-
tenth of the members of one house. In Germany a
majority in the legislature may remove the
chancellor, but only by simultaneously electing a
successor.
Source: George Thomas Kurian, World

Encyclopedia of Parliaments and Legislatures
(Washington, DC: Congressional Quarterly, 1998).
As for the president, the Constitution mentions only

three qualifications. First, Article II requires that
only individuals who are natural-born citizens may
become president.2 Naturalized citizens—those who
attain citizenship after birth—are not eligible.
Second, to be president a person must have reached
the age of thirty-five. Third, the president must have
been a resident of the United States for fourteen
years. The Constitution made no mention of
qualifications for vice president, but this oversight
was corrected with the 1804 ratification of the
Twelfth Amendment, which says that no person can
serve as vice president who is not eligible to be
president.
2 The Constitution also allowed individuals who were
citizens at the time the Constitution was adopted to
be eligible to hold the presidency.
Under the original procedures detailed in Article II,

the electors were to assemble in their respective
state capitals on Election Day and cast votes for
their presidential preferences. Each elector had two
votes, only one of which could be cast for the
candidate from the elector’s home state. These
ballots were then sent to the federal capital, where
the president of the Senate opened them. The
candidate receiving the most votes would be
declared president if the number of votes received
was a majority of the number of electors.
Article II anticipated two possible problems with this

procedure: First, because the electors each cast two
votes, it was possible for the balloting to result in a
tie between two candidates. In this event, the
Constitution stipulated that the House of
Representatives should select one of the two.
Second, if multiple candidates sought the presidency,
it would be possible that no candidate would receive
the required majority. In this case the House was to
decide among the top five finishers in the Electoral
College voting. In settling such disputed elections,
each state delegation was to cast a single vote,
rather than allowing the individual members to vote
independently.
In the original scheme the vice president was
selected right after the president. The formula for
choosing the vice president was simple—the vice
president was the presidential candidate who
received the second-highest number of electoral
votes. If two or more candidates tied for second in
the Electoral College voting, the Senate would select
the vice president from among them.
The first two elections took place with no difficulty.

In 1789 George Washington received one ballot from
each of the 69 electors who participated and was
elected president. John Adams became vice
president because he received the next-highest
number of electoral votes (thirty-four). History
repeated itself in the election of 1792, with
Washington receiving one vote from each of the 132
electors. Adams again gathered the next-highest
number of votes (seventy-seven) and returned to the
vice presidency.
The defects in the electoral system first became

apparent with the election of 1796. By this time
political parties had begun to develop, and this
election was a contest between the (incumbent)
Federalists and the Democratic-Republicans. With
Washington declining to run for a third term, John
Adams became the Federalist candidate, and
Thomas Jefferson was the choice of those who
wanted political change. Adams won the presidency
with seventy-one electoral votes, and Jefferson, with
sixty-eight, became vice president. The nation
therefore had a divided executive branch, with a
president and a vice president from different
political parties.
Matters grew even worse with the 1800 election.

The Democratic-Republicans were now the more
popular of the two major parties, and they backed
Jefferson for president and Aaron Burr for vice
president. Electors committed to the Democratic-
Republican candidates each cast one ballot for
Jefferson and one for Burr. Although it was clear who
was running for which office, the method of selection
did not allow for such distinctions. The result was
that Jefferson and Burr each received seventy-three
votes, and the election moved to the outgoing
Federalist-dominated House of Representatives for
settlement. Each of the sixteen states had a single
vote, and a majority was required for election. On
February 11, 1801, the first vote in the House was
taken. Jefferson received eight votes and Burr six.
Maryland and Vermont were unable to register a
preference because their state delegations were
evenly divided. The voting continued until the thirty-
sixth ballot on February 17, when Jefferson received
the support of ten state delegations and was named
president, with Burr becoming vice president.
It was clear that the Constitution needed to be

changed to avoid such situations. Congress proposed
the Twelfth Amendment in 1803, and the states
ratified it the next year. The amendment altered the
selection system by separating the voting for
president and vice president. Rather than casting
two votes for president, electors would vote for a
presidential candidate and then vote separately for a
vice-presidential candidate. The House and Senate
continued to settle presidential and vice-presidential
elections in which no candidate received a majority,
although the procedures for such elections also were
modified by the amendment.
Although the evolution of political parties and the

reduction in the degree of independence exercised
by presidential electors have changed in the way the
system operates, presidential and vice-presidential
elections are still governed by the Twelfth
Amendment—and the Electoral College persists.
Despite calls by some to replace it with direct
popular election, proponents of this reform have
never achieved enough strength to prompt Congress
or the state legislatures to propose the necessary
constitutional amendment. Historically, opposition to
popular election has come from the smaller states,
which enjoy more influence within the Electoral
College system than they would under popular
election reforms.
Indeed, until the 2000 election, most Americans

were not all that concerned with reforming the
presidential selection system. Before 2000, only
three elections produced a result at odds with the
popular vote.3 But in that year, Vice President Al
Gore narrowly won the popular vote, though his
opponent Texas governor George W. Bush assumed
the presidency after capturing a majority of the
Electoral College votes. The election was so close
that the result was not known until weeks after the
balloting, when the Supreme Court’s decision in
Bush v. Gore (2000) settled the final issues that
determined the outcome. The publicity surrounding
this disputed election served as a national civics
lesson in how the U.S. president is selected and
sparked a widespread public debate on election
reform. Consider the issue of reform as you read the
excerpt below. Also consider another hotly debated
question surrounding the case: To what degree did
the justices allow their partisan preferences to enter
into the decision? This question has arisen, in part,
because five of the seven Republican justices cast
their “ballots” for the candidate of their party, while
both Democratic justices (Breyer and Ginsburg)
“voted” for Gore.
3 John Quincy Adams in 1824, Rutherford Hayes in

1876, and Benjamin Harrison in 1888. There is some
debate over whether John F. Kennedy (in 1960)
should be added to this list. See Brian J. Gaines,
“Popular Myths about Popular Vote–Electoral College
Splits,” PS: Political Science and Politics 34 (2001):
70–75.
Bush v. Gore 531 U.S. 98 (2000)
court/531/98.html
Vote: 5 (Kennedy, O’Connor, Rehnquist, Scalia,

Thomas)
4 (Breyer, Ginsburg, Souter, Stevens)
OPINION OF THE COURT: Per Curiam

CONCURRING OPINION: Rehnquist
DISSENTING OPINIONS: Breyer, Ginsburg,
Souter, Stevens
Facts:
The presidential election of November 7, 2000,
was one of the closest races in American history.
On election night it became clear that the battle
between Governor Bush and Vice President Gore
for the 270 electoral votes necessary for victory
would be decided by the outcome in the state of
Florida.
Initial vote counts in Florida gave Bush a lead of

1,780 votes out of 6 million cast. This narrow
margin triggered an automatic machine recount
held on November 10. The results gave Bush a
victory, but the margin had slipped to a scant 250
votes, with absentee overseas ballots still to be
counted. By this time charges and countercharges
of voting irregularities led to lawsuits and political
protests. As the various issues sorted themselves
out over the ensuing days, the outcome of the
election appeared to hinge on the large numbers
of undercounted ballots in a select number of
traditionally Democratic counties. Undercounted
ballots were those for which vote-counting
machines did not register a presidential
preference. In many cases such undercounting
was the result of a failure by the voter to pierce
completely the computer punch-card ballot. In
other cases, machine malfunction may have been
the cause. Gore supporters demanded a hand
recount of the undercounted ballots.
Three statutory deadlines imposed obstacles for

the labor-intensive and time-consuming manual
recounts. First, Florida law directed the secretary
of state to certify the election results by
November 18. Second, federal law (3 U.S.C. §5)
provided that if all controversies and contests over
a state’s electors were resolved by December 12,
the state’s slate would be considered conclusive
and beyond challenge (the so-called safe harbor
provision). And third, federal law set December 18
as the date the electors would cast their ballots.
As the manual recounts proceeded, it became

clear that the process would not be completed
prior to the November 18 deadline for
certification. Florida’s Republican secretary of
state, Katherine Harris, announced her intention
to certify the vote on November 18 regardless of
the ongoing recounts. Gore forces went to court to
block her from doing so. A unanimous Florida
Supreme Court, emphasizing that every vote cast
should be counted, ruled that the recounts should
continue and extended the certification date to
November 26. Believing the Florida court had
exceeded its authority, Bush’s lawyers appealed
this decision to the U.S. Supreme Court. On
December 4 the justices set aside the Florida
court’s certification extension and asked the court
to explain the reasoning behind its decision (Bush
v. Palm Beach County Canvassing Board, 2000). In
the meantime, Secretary Harris on November 26
certified Bush as winning the state by 537 votes.
Four days after the U.S. Supreme Court’s decision,

the Florida high court, in response to an appeal by
Gore, ordered a new statewide manual recount of
all undervotes to begin immediately. The recounts
were to be conducted by local officials guided only
by the instruction to determine voter intent on
each ballot. Bush appealed this decision to the
U.S. Supreme Court. On December 9 the justices
scheduled the case for oral argument and ordered
the recounts to stop pending a final decision. Both
sides were well represented. Bush’s attorney,
Theodore Olson, had served as an assistant
attorney general in the Reagan administration
and, in private practice, had argued many cases
before the Supreme Court. Gore’s attorney was
David Boies, a prominent litigator whose previous
clients included George Steinbrenner and CBS. He
had also helped the Justice Department win a
major antitrust case against Microsoft. (See Box 4-
2.)
Two major issues dominated the case. First, did

the Florida Supreme Court violate federal law by
altering the election procedures in place prior to
the election? Second, did the Florida Supreme
Court violate the equal protection clause of the
Fourteenth Amendment when it ordered a recount
to take place without setting a single uniform
standard for determining voter intent?
The sequence of headlines that appeared in the
Orlando Sentinel immediately after the election
reflects the uncertainty and confusion that
gripped Florida and the nation following the vote
for president in 2000.
AP Photo/Peter Cosgrove
A badly divided Supreme Court issued its ruling

on December 12. The per curiam opinion focuses
on the equal protection claim. The concurring and
dissenting opinions include a wide range of views
on the issues presented and debate what remedies
should be imposed for any constitutional or
statutory violations found.
Arguments:
For the petitioners, George W. Bush et
al.:
The Florida Supreme Court violated 3 U.S.C. §5,

which states that appointments of electors are
conclusive only if made pursuant to laws
enacted prior to election day. By demanding
that the recounts continue, the Florida
Supreme Court is changing state law instead of
interpreting it.
The new standards, procedures, and timetables
established by the Florida Supreme Court for
the selection of Florida’s presidential electors
are in conflict with the state legislature’s plan
for the resolution of election disputes. The
court’s new framework violates Article II, which
vests in state legislatures the exclusive
authority to regulate the appointment of
presidential electors.
The manual recount procedures newly
concocted by the Florida Supreme Court are
arbitrary, standardless, and subjective, and will
necessarily vary in application, both across
different counties and within individual
counties, in violation of the equal protection
clause of the Fourteenth Amendment. The
equal protection clause forbids the state from
treating similarly situated voters differently
based merely on where they live.
For the respondents, Albert

Gore Jr. et al.:
The federal law that petitioners accuse the
Florida Supreme Court of violating supplies an
option of safe harbor only if states choose to
use it.
In its ruling, the Florida court did not “make
law” or establish any new legal standards that
conflict with legislative enactments. Rather,
the court engaged in a routine exercise of
statutory interpretation that construed the
Florida election code according to the
legislature’s designated manner for choosing
electors in a statewide election.
The Florida Supreme Court’s judgment is fully
consistent with equal protection. Petitioners’
allegations about the way the manual recounts
have been conducted have no support in the
record and are based on unsubstantiated
rumors, untested “evidence,” and biased ex
parte submissions. In fact, the recounts have
been conducted in full public view by counting
teams made up of representatives from
different political parties, with the supervision
of a canvassing board that includes a sitting
county judge and review by the Florida
judiciary. Supreme Court precedents
emphasize the fundamental right of all
qualified voters to cast their votes and to have
their votes counted.
Per CURIAM.
The closeness of this election, and the multitude of

legal challenges which have followed in its wake,
have brought into sharp focus a common, if
heretofore unnoticed, phenomenon. Nationwide
statistics reveal that an estimated 2% of ballots
cast do not register a vote for President for
whatever reason, including deliberately choosing
no candidate at all or some voter error, such as
voting for two candidates or insufficiently marking
a ballot. In certifying election results, the votes
eligible for inclusion in the certification are the
votes meeting the properly established legal
requirements.
This case has shown that punch card balloting

machines can produce an unfortunate number of
ballots which are not punched in a clean, complete
way by the voter. After the current counting, it is
likely legislative bodies nationwide will examine
ways to improve the mechanisms and machinery
for voting.
The individual citizen has no federal constitutional

right to vote for electors for the President of the
United States unless and until the state legislature
chooses a statewide election as the means to
implement its power to appoint members of the
Electoral College. U.S. Const., Art. II, §1. . . . [T]he
State legislature’s power to select the manner for
appointing electors is plenary; it may, if it so
chooses, select the electors itself, which indeed
was the manner used by State legislatures in
several States for many years after the Framing of
our Constitution. History has now favored the
voter, and in each of the several States the citizens
themselves vote for Presidential electors. When
the state legislature vests the right to vote for
President in its people, the right to vote as the
legislature has prescribed is fundamental; and one
source of its fundamental nature lies in the equal
weight accorded to each vote and the equal
dignity owed to each voter. . . .
Equal protection applies as well to the manner of

its exercise. Having once granted the right to vote
on equal terms, the State may not, by later
arbitrary and disparate treatment, value one
person’s vote over that of another. . . .
There is no difference between the two sides of

the present controversy on these basic
propositions. Respondents say that the very
purpose of vindicating the right to vote justifies
the recount procedures now at issue. The question
before us, however, is whether the recount
procedures the Florida Supreme Court has
adopted are consistent with its obligation to avoid
arbitrary and disparate treatment of the members
of its electorate.
Much of the controversy seems to revolve around

ballot cards designed to be perforated by a stylus
but which, either through error or deliberate
omission, have not been perforated with sufficient
precision for a machine to count them. In some
cases a piece of the card—a chad—is hanging, say
by two corners. In other cases there is no
separation at all, just an indentation.
The Florida Supreme Court has ordered that the

intent of the voter be discerned from such ballots.
For purposes of resolving the equal protection
challenge, it is not necessary to decide whether
the Florida Supreme Court had the authority
under the legislative scheme for resolving election
disputes to define what a legal vote is and to
mandate a manual recount implementing that
definition. The recount mechanisms implemented
in response to the decisions of the Florida
Supreme Court do not satisfy the minimum
requirement for non-arbitrary treatment of voters
necessary to secure the fundamental right.
Florida’s basic command for the count of legally
cast votes is to consider the “intent of the voter.”
This is unobjectionable as an abstract proposition
and a starting principle. The problem inheres in
the absence of specific standards to ensure its
equal application. The formulation of uniform
rules to determine intent based on these recurring
circumstances is practicable and, we conclude,
necessary.
The law does not refrain from searching for the
intent of the actor in a multitude of circumstances;
and in some cases the general command to
ascertain intent is not susceptible to much further
refinement. In this instance, however, the question
is . . . how to interpret the marks or holes or
scratches on an inanimate object, a piece of
cardboard or paper which, it is said, might not
have registered as a vote during the machine
count. The factfinder confronts a thing, not a
person. The search for intent can be confined by
specific rules designed to ensure uniform
treatment.
The want of those rules here has led to unequal

evaluation of ballots in various respects. As seems
to have been acknowledged at oral argument, the
standards for accepting or rejecting contested
ballots might vary not only from county to county
but indeed within a single county from one
recount team to another.
The record provides some examples. A monitor in

Miami-Dade County testified at trial that he
observed that three members of the county
canvassing board applied different standards in
defining a legal vote. And testimony at trial also
revealed that at least one county changed its
evaluative standards during the counting process.
Palm Beach County, for example, began the
process with a 1990 guideline which precluded
counting completely attached chads, switched to a
rule that considered a vote to be legal if any light
could be seen through a chad, changed back to
the 1990 rule, and then abandoned any pretense
of a per se rule, only to have a court order that the
county consider dimpled chads legal. This is not a
process with sufficient guarantees of equal
treatment. . . .
The State Supreme Court ratified this uneven

treatment. It mandated that the recount totals
from two counties, Miami-Dade and Palm Beach,
be included in the certified total. The court also
appeared to hold sub silentio that the recount
totals from Broward County, which were not
completed until after the original November 14
certification by the Secretary of State, were to be
considered part of the new certified vote totals
even though the county certification was not
contested by Vice President Gore. Yet each of the
counties used varying standards to determine
what was a legal vote. Broward County used a
more forgiving standard than Palm Beach County,
and uncovered almost three times as many new
votes, a result markedly disproportionate to the
difference in population between the counties. . . .
The recount process, in its features here

described, is inconsistent with the minimum
procedures necessary to protect the fundamental
right of each voter in the special instance of a
statewide recount under the authority of a single
state judicial officer. Our consideration is limited
to the present circumstances, for the problem of
equal protection in election processes generally
presents many complexities.
The question before the Court is not whether local

entities, in the exercise of their expertise, may
develop different systems for implementing
elections. Instead, we are presented with a
situation where a state court with the power to
assure uniformity has ordered a statewide recount
with minimal procedural safeguards. When a court
orders a statewide remedy, there must be at least
some assurance that the rudimentary
requirements of equal treatment and fundamental
fairness are satisfied. . . .
Upon due consideration of the difficulties

identified to this point, it is obvious that the
recount cannot be conducted in compliance with
the requirements of equal protection and due
process without substantial additional work. It
would require not only the adoption (after
opportunity for argument) of adequate statewide
standards for determining what is a legal vote,
and practicable procedures to implement them,
but also orderly judicial review of any disputed
matters that might arise. In addition, the
Secretary of State has advised that the recount of
only a portion of the ballots requires that the vote
tabulation equipment be used to screen out
undervotes, a function for which the machines
were not designed. If a recount of overvotes were
also required, perhaps even a second screening
would be necessary. . . .
The Supreme Court of Florida has said that the

legislature intended the State’s electors to
“participat[e] fully in the federal electoral
process,” as provided in 3 U.S.C. §5. That statute,
in turn, requires that any controversy or contest
that is designed to lead to a conclusive selection of
electors be completed by December 12. That date
is upon us, and there is no recount procedure in
place under the State Supreme Court’s order that
comports with minimal constitutional standards.
Because it is evident that any recount seeking to
meet the December 12 date will be
unconstitutional for the reasons we have
discussed, we reverse the judgment of the
Supreme Court of Florida ordering a recount to
proceed.
Seven Justices of the Court agree that there are

constitutional problems with the recount ordered
by the Florida Supreme Court that demand a
remedy. The only disagreement is as to the
remedy. Because the Florida Supreme Court has
said that the Florida Legislature intended to
obtain the safe-harbor benefits of 3 U.S.C. §5,
JUSTICE BREYER’S proposed remedy—remanding
to the Florida Supreme Court for its ordering of a
constitutionally proper contest until December 18
—contemplates action in violation of the Florida
election code, and hence could not be part of an
“appropriate” order authorized by [Florida law].
None are more conscious of the vital limits on

judicial authority than are the members of this
Court, and none stand more in admiration of the
Constitution’s design to leave the selection of the
President to the people, through their legislatures,
and to the political sphere. When contending
parties invoke the process of the courts, however,
it becomes our unsought responsibility to resolve
the federal and constitutional issues the judicial
system has been forced to confront.
The judgment of the Supreme Court of Florida is

reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
CHIEF JUSTICE REHNQUIST,
with whom JUSTICE SCALIA and
JUSTICE THOMAS join,
concurring.
We join the per curiam opinion. We write
separately because we believe there are additional
grounds that require us to reverse the Florida
Supreme Court’s decision.
We deal here not with an ordinary election, but

with an election for the President of the United
States. . . .
In most cases, comity and respect for federalism

compel us to defer to the decisions of state courts
on issues of state law. . . . But there are a few
exceptional cases in which the Constitution
imposes a duty or confers a power on a particular
branch of a State’s government. This is one of
them. Article II, §1, cl. 2, provides that “[e]ach
State shall appoint, in such Manner as the
Legislature thereof may direct,” electors for
President and Vice President. Thus, the text of the
election law itself, and not just its interpretation
by the courts of the States, takes on independent
significance. . . .
Art. II, §1, cl. 2, “convey[s] the broadest power of

determination” and “leaves it to the legislature
exclusively to define the method” of appointment.
A significant departure from the legislative
scheme for appointing Presidential electors
presents a federal constitutional question. . . .
In Florida, the legislature has chosen to hold
statewide elections to appoint the State’s 25
electors. Importantly, the legislature has
delegated the authority to run the elections and to
oversee election disputes to the Secretary of State
(Secretary) and to state circuit courts. . . . In any
election but a Presidential election, the Florida
Supreme Court can give as little or as much
deference to Florida’s executives as it chooses. . . .
But, with respect to a Presidential election, the
court must be both mindful of the legislature’s
role under Article II in choosing the manner of
appointing electors and deferential to those bodies
expressly empowered by the legislature to carry
out its constitutional mandate.
In order to determine whether a state court has

infringed upon the legislature’s authority, we
necessarily must examine the law of the State as it
existed prior to the action of the court. Though we
generally defer to state courts on the
interpretation of state law there are of course
areas in which the Constitution requires this Court
to undertake an independent, if still deferential,
analysis of state law. . . .
This inquiry does not imply a disrespect for state

courts but rather a respect for the constitutionally
prescribed role of state legislatures. To attach
definitive weight to the pronouncement of a state
court, when the very question at issue is whether
the court has actually departed from the statutory
meaning, would be to abdicate our responsibility
to enforce the explicit requirements of Article II.
JUSTICE STEVENS, with whom
JUSTICE GINSBURG and
JUSTICE BREYER join,
dissenting.
The Constitution assigns to the States the primary
responsibility for determining the manner of
selecting the Presidential electors. When
questions arise about the meaning of state laws,
including election laws, it is our settled practice to
accept the opinions of the highest courts of the
States as providing the final answers. On rare
occasions, however, either federal statutes or the
Federal Constitution may require federal judicial
intervention in state elections. This is not such an
occasion.
The federal questions that ultimately emerged in

this case are not substantial. Article II provides
that “[e]ach State shall appoint, in such Manner as
the Legislature thereof may direct, a Number of
Electors.” It does not create state legislatures out
of whole cloth, but rather takes them as they come
—as creatures born of, and constrained by, their
state constitutions. . . . The legislative power in
Florida is subject to judicial review pursuant to
Article V of the Florida Constitution, and nothing
in Article II of the Federal Constitution frees the
state legislature from the constraints in the state
constitution that created it. Moreover, the Florida
Legislature’s own decision to employ a unitary
code for all elections indicates that it intended the
Florida Supreme Court to play the same role in
Presidential elections that it has historically
played in resolving electoral disputes. The Florida
Supreme Court’s exercise of appellate jurisdiction
therefore was wholly consistent with, and indeed
contemplated by, the grant of authority in Article
II. . . .
Admittedly, the use of differing substandards for

determining voter intent in different counties
employing similar voting systems may raise
serious concerns. Those concerns are alleviated—
if not eliminated—by the fact that a single
impartial magistrate will ultimately adjudicate all
objections arising from the recount process. . . .
What must underlie petitioners’ entire federal

assault on the Florida election procedures is an
unstated lack of confidence in the impartiality and
capacity of the state judges who would make the
critical decisions if the vote count were to
proceed. Otherwise, their position is wholly
without merit. The endorsement of that position
by the majority of this Court can only lend
credence to the most cynical appraisal of the work
of judges throughout the land. It is confidence in
the men and women who administer the judicial
system that is the true backbone of the rule of law.
Time will one day heal the wound to that
confidence that will be inflicted by today’s
decision. One thing, however, is certain. Although
we may never know with complete certainty the
identity of the winner of this year’s Presidential
election, the identity of the loser is perfectly clear.
It is the Nation’s confidence in the judge as an
impartial guardian of the rule of law.
JUSTICE SOUTER, with whom
JUSTICE BREYER joins . . .
dissenting.4
4 Editors’ note: Justice Souter’s dissent
considered three issues: “whether the State
Supreme Court’s interpretation of the statute
providing for a contest of the state election results
somehow violates 3 U.S.C. §5; whether that court’s
construction of the state statutory provisions
governing contests impermissibly changes a state
law from what the State’s legislature has
provided, in violation of Article II, §1, cl. 2, of the
national Constitution; and whether the manner of
interpreting markings on disputed ballots failing
to cause machines to register votes for President
(the undervote ballots) violates the equal
protection or due process guaranteed by the
Fourteenth Amendment.” Justices Stevens and
Ginsburg joined his dissent with regard to the first
two issues but not on the third, which is the one
we excerpt.
Petitioners have raised an equal protection claim,

in the charge that unjustifiably disparate
standards are applied in different electoral
jurisdictions to otherwise identical facts. It is true
that the Equal Protection Clause does not forbid
the use of a variety of voting mechanisms within a
jurisdiction, even though different mechanisms
will have different levels of effectiveness in
recording voters’ intentions; local variety can be
justified by concerns about cost, the potential
value of innovation, and so on. But evidence in the
record here suggests that a different order of
disparity obtains under rules for determining a
voter’s intent that have been applied (and could
continue to be applied) to identical types of ballots
used in identical brands of machines and
exhibiting identical physical characteristics (such
as “hanging” or “dimpled” chads). I can conceive
of no legitimate state interest served by these
differing treatments of the expressions of voters’
fundamental rights. The differences appear wholly
arbitrary.
In deciding what to do about this, we should take

account of the fact that electoral votes are due to
be cast in six days. I would therefore remand the
case to the courts of Florida with instructions to
establish uniform standards for evaluating the
several types of ballots that have prompted
differing treatments, to be applied within and
among counties when passing on such identical
ballots in any further recounting (or successive
recounting) that the courts might order.
Unlike the majority, I see no warrant for this Court

to assume that Florida could not possibly comply
with this requirement before the date set for the
meeting of electors, December 18. . . . To recount
these [disputed votes] manually would be a tall
order, but before this Court stayed the effort to do
that the courts of Florida were ready to do their
best to get that job done. There is no justification
for denying the State the opportunity to try to
count all disputed ballots now.
JUSTICE GINSBURG, with whom
JUSTICE STEVENS joins, and
with whom JUSTICE SOUTER
and JUSTICE BREYER join . . . ,
dissenting.5
5 Authors’ note: Justices Souter and Breyer joined
the part of the dissent we excerpt but not the part
on equal protection (in which Ginsburg agreed
with Justice Stevens that petitioners “have not
presented a substantial equal protection claim”).
The extraordinary setting of this case has

obscured the ordinary principle that dictates its
proper resolution: Federal courts defer to state
high courts’ interpretations of their state’s own
law. This principle reflects the core of federalism,
on which all agree. “The Framers split the atom of
sovereignty. It was the genius of their idea that
our citizens would have two political capacities,
one state and one federal, each protected from
incursion by the other.” The Chief Justice’s
solicitude for the Florida Legislature comes at the
expense of the more fundamental solicitude we
owe to the legislature’s sovereign. Were the other
members of this Court as mindful as they
generally are of our system of dual sovereignty,
they would affirm the judgment of the Florida
Supreme Court. . . .
JUSTICE BREYER, with whom

JUSTICE STEVENS and JUSTICE
GINSBURG join except as [to
paragraphs 3–4 below], and with
whom JUSTICE SOUTER joins
[except as to the final
paragraph of this excerpt],
dissenting.
The Court was wrong to take this case. It was
wrong to grant a stay. It should now vacate that
stay and permit the Florida Supreme Court to
decide whether the recount should resume.
The political implications of this case for the

country are momentous. But the federal legal
questions presented, with one exception, are
insubstantial.
The majority raises three Equal Protection

problems with the Florida Supreme Court’s
recount order: first, the failure to include
overvotes in the manual recount; second, the fact
that all ballots, rather than simply the undervotes,
were recounted in some, but not all, counties; and
third, the absence of a uniform, specific standard
to guide the recounts. As far as the first issue is
concerned, petitioners presented no evidence, to
this Court or to any Florida court, that a manual
recount of overvotes would identify additional
legal votes. The same is true of the second, and, in
addition, the majority’s reasoning would seem to
invalidate any state provision for a manual recount
of individual counties in a statewide election.
The majority’s third concern does implicate
principles of fundamental fairness. The majority
concludes that the Equal Protection Clause
requires that a manual recount be governed not
only by the uniform general standard of the “clear
intent of the voter,” but also by uniform subsidiary
standards (for example, a uniform determination
whether indented, but not perforated,
“undervotes” should count). The Florida Supreme
Court ordered the inclusion of [one county’s]
undercounted “legal votes” even though those
votes included ballots that were not perforated
but simply “dimpled,” while newly recounted
ballots from other counties will likely include only
votes determined to be “legal” on the basis of a
stricter standard. In light of our previous remand,
the Florida Supreme Court may have been
reluctant to adopt a more specific standard than
that provided for by the legislature for fear of
exceeding its authority under Article II. However,
since the use of different standards could favor
one or the other of the candidates, since time was,
and is, too short to permit the lower courts to iron
out significant differences through ordinary
judicial review, and since the relevant distinction
was embodied in the order of the State’s highest
court, I agree that, in these very special
circumstances, basic principles of fairness may
well have counseled the adoption of a uniform
standard to address the problem. In light of the
majority’s disposition, I need not decide whether,
or the extent to which, as a remedial matter, the
Constitution would place limits upon the content
of the uniform standard.
Nonetheless, there is no justification for the
majority’s remedy, which is simply to reverse the
lower court and halt the recount entirely. An
appropriate remedy would be, instead, to remand
this case with instructions that, even at this late
date, would permit the Florida Supreme Court to
require recounting all undercounted votes in
Florida, including those from Broward, Volusia,
Palm Beach, and Miami-Dade Counties, whether
or not previously recounted prior to the end of the
protest period, and to do so in accordance with a
single-uniform substandard.
The majority justifies stopping the recount entirely

on the ground that there is no more time. . . . But
the majority reaches this conclusion in the
absence of any record evidence that the recount
could not have been completed in the time allowed
by the Florida Supreme Court. . . . Of course, it is
too late for any such recount to take place by
December 12, the date by which election disputes
must be decided if a State is to take advantage of
the safe harbor provisions of 3 U.S.C. §5. Whether
there is time to conduct a recount prior to
December 18, when the electors are scheduled to
meet, is a matter for the state courts to determine.
And whether, under Florida law, Florida could or
could not take further action is obviously a matter
for Florida courts, not this Court, to decide. . . .
I fear that in order to bring this agonizingly long

election process to a definitive conclusion, we
have not adequately attended to that necessary
“check upon our own exercise of power,” “our own
sense of self-restraint.” United States v. Butler
(1936) (Stone, J., dissenting). Justice Brandeis
once said of the Court, “The most important thing
we do is not doing.” What it does today, the Court
should have left undone. I would repair the
damage done as best we now can, by permitting
the Florida recount to continue under uniform
standards.
The Court’s decision in Bush v. Gore became the

final chapter in the presidential election controversy
of 2000. By stopping the Florida recount, the Court
removed Vice President Gore’s last hope of
capturing the state’s twenty-five electoral votes and
guaranteed that Governor Bush would become the
next president (see Box 4-2).
Box 4-2 Aftermath . . . Bush v. Gore
THE ANNOUNCEMENT of the Supreme Court’s

decision in Bush v. Gore (2000) effectively ended
the 2000 presidential election controversy. On
December 13, 2000, the day after the justices
ruled, Vice President Al Gore announced that he
was ending his campaign: “I accept the finality of
this outcome. . . . And tonight, for the sake of our
unity as a people and the strength of our
democracy, I offer my concession.” Florida officials
quickly certified the state’s twenty-five electoral
votes for Texas governor George W. Bush.
Florida’s electoral votes gave Bush a total of 271

in the Electoral College, just one more than
required to become the forty-third president of the
United States. Bush became only the fourth
president in U.S. history to win office while losing
the popular vote to his chief opponent: Gore
captured 48.39 percent of the popular vote, as
opposed to Bush’s 47.88 percent. Before Bush
only John Quincy Adams in 1824, Rutherford B.
Hayes in 1876, and Benjamin Harrison in 1888
had been elected president without leading in the
popular vote count. (Some political scientists have
argued that Richard Nixon won the popular vote
in the election of 1960, but he lost the election to
John F. Kennedy. See footnote 3.)
Because of the voting controversies in Florida,

many states revised election laws and upgraded
vote-counting equipment to avoid similar problems
in future elections. The two Florida officials at the
center of the controversy, Governor Jeb Bush and
Secretary of State Katherine Harris, continued
their political careers. Jeb Bush was reelected
governor of Florida in 2002, and Harris won a
congressional seat that same year. After serving
two terms in the House, Harris lost her bid for a
Senate seat. Theodore Olson, the lawyer who
successfully argued Bush’s case before the
Supreme Court, was appointed solicitor general of
the United States by the new president and served
until 2004. In 2010 Olson and his former Bush v.
Gore opponent, David Boies (Gore’s lawyer),
teamed up to challenge a California constitutional
amendment banning same-sex marriage.
Gore seriously considered a rematch against

President Bush in the 2004 elections, but in late
2002 he announced that he would not be a
candidate for his party’s nomination. He instead
focused his efforts on environmental policy. An
Inconvenient Truth, a documentary film on global
warming that Gore wrote and narrated, won the
2006 Academy Award for Best Documentary
Feature. In 2007 he received the Nobel Peace
Prize for his efforts to combat global climate
change. President Bush was reelected to the
presidency in 2004.
Public opinion polls taken after the Court’s ruling

in Bush v. Gore showed that a large majority of
Americans accepted Bush as the legitimate
president, and, contrary to many predictions, the
polls failed to find any appreciable decline in
public support for the Court because of its
incursion into the presidential election. A Harris
Poll taken in 2000 prior to the election found that
34 percent of the American people had “great
confidence” in the Supreme Court. Harris
repeated the poll in January 2001 and discovered
virtually no change: 35 percent of the respondents
expressed “great confidence” in the Court. Two
years later the figure again was 34 percent.1
1. A summary of polling data on the public’s

confidence in the Supreme Court can be found in
Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth,
and Thomas G. Walker, The Supreme Court
Compendium: Data Decisions, and Developments,
6th ed. (Thousand Oaks, CA: CQ Press, 2016).
Although much of the nation was happy to see the

election finally resolved, the Court’s action caused
intense debate in political and academic circles. Not
only was there a question of whether the Supreme
Court should have heard the case in the first place,
but also many believed, for the reasons we noted
earlier, that the justices’ votes were excessively
influenced by their own partisan or ideological
preferences. Do you agree?
Finally, return to the issue we raised earlier about

reforming the system for electing the president.
Naturally enough, calls for reform came in the wake
of Bush v. Gore, with some observers questioning the
wisdom of allowing nine unelected justices to resolve
the nation’s most important election. With the
election of Donald Trump in 2016, proposals to
eradicate the Electoral College have reemerged.
Like Bush in 2000, Trump won the electoral vote but
lost the popular vote, this time by over 2.8 million
votes—a far larger margin than the 540,000 or so
votes that separated Bush and Gore.6
6 Data from the National Archives, at

https://www.archives.gov/federal-register/electoral-
college/index.html.
Removal of the President

Although the framers spent some time dealing with
presidential selection, they apparently agreed rather
quickly about removal. If an incumbent president (or
vice president) abuses the office, the Constitution
provides for impeachment as the method of removal.
Impeachment is a two-stage process. First, the
House of Representatives investigates the charges
against the incumbent. The Constitution stipulates
that the president (as well as the “Vice President
and all civil Officers of the United States”) “shall be
removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes
and Misdemeanors.” Once convinced that there is
sufficient evidence of such misconduct, the House
passes articles of impeachment specifying the crimes
charged and authorizing a trial. The second stage,
the trial, takes place in the Senate, with the chief
justice of the United States presiding. Conviction
requires the agreement of two-thirds of the voting
senators. The Constitution specifies that the chief
justice shall preside over the Senate if it tries the
president, but not when the vice president is being
impeached. Could this mean that a vice president,
acting as president of the Senate, may preside over
his or her own impeachment? That is unlikely, but
the procedures are not altogether clear because no
vice president has ever been impeached by the
House of Representatives. Finally, Congress may
impose no penalty on a convicted official other than
removal from office. The former officeholder may,
however, be subject to separate criminal prosecution
in the courts.
Congress has never removed a president from office,

but three have barely escaped such a fate. Andrew
Johnson was impeached by the House in 1868, and
he survived his trial in the Senate by one vote.
Richard Nixon was well on his way to being
impeached in 1974 when he resigned from office.
The House passed two articles of impeachment
against Bill Clinton in 1998, and the Senate vote in
February 1999 fell far short of the sixty-seven votes
of guilt needed to convict. Because the Nixon and
Clinton episodes led to several important
constitutional rulings on executive power, we have
more to say about the circumstances surrounding
these presidents’ troubles in the coming pages.
Worth noting here, though, is that none of these

episodes have resolved the grounds for
impeachment. The Constitution specifies
impeachment for “Treason, Bribery, or other high
Crimes and Misdemeanors,” as we just noted. But
what do those words mean? Must the president
violate a criminal law to be impeached or is, say,
slander—making false and damaging statements—
enough, even though slander is not a criminal
offence? Can Congress impeach the president for
actions he takes in his “private” life outside of his
official duties, or must the offenses trace directly to
his job?
Scholars and other commentators debate the

answers to these other questions, with each side
developing answers from various and rather murky
historical material.7 Perhaps, though, President
Gerald Ford supplied the most politically accurate
answer when he, as a member of the House of
Representatives, led the charge to impeach Justice
William O. Douglas. In response to claims that the
impeachment effort was driven by Douglas’s liberal
decisions and not judicial misconduct, Ford said:
7 For reviews and perspectives, see Raoul Berger,

Impeachment: The Constitutional Problems,
enlarged edition (Cambridge, MA: Harvard
University Press, 1999); Michael J. Gerhardt,
Impeachment: What Everyone Needs to Know (New
York: Oxford University Press, 2018); Cass R.
Sunstein, Impeachment: A Citizen’s Guide
What, then, is an impeachable offense? The only

honest answer is that an impeachable offense is
whatever a majority of the House of
Representatives considers it to be at a given
moment in history; conviction results from
whatever offense or offenses two-thirds of the
[Senate] considers to be sufficiently serious to
require removal of the accused from office . . .
there are few fixed principles from among the
handful of precedents.8
8 From a speech in the House of Representatives on

April 15, 1970.
Tenure and Succession

The Constitution sets the presidential term at four
years. Originally, it placed no restriction on the
number of terms a president could serve. George
Washington began the tradition of a two-term limit
when he announced at the end of his second term
that he would not run again. Every president
honored this tradition until the Roosevelts. After
serving two terms in office, Theodore Roosevelt
decided against running for a third term in the
election of 1908. But four years later he had a
change of heart and ran as a third-party candidate;
he lost to Woodrow Wilson. His cousin, Franklin
Roosevelt, had better luck. He sought and won
election to a third term in 1940 and to a fourth term
in 1944. In reaction, Congress proposed the Twenty-
second Amendment, which held that no person could
run for president after having served more than six
years in that office. The states ratified the
amendment in 1951.
In Article II the framers provided a mechanism for

the replacement of the president in the event of
death, resignation, or disability: the vice president
assumes the powers and responsibilities of the
office.9 The Constitution further authorizes Congress
to determine presidential succession if there is no
sitting vice president when a vacancy occurs.
9 Nine sitting presidents have failed to complete

their terms. Four (William Henry Harrison, Zachary
Taylor, Warren G. Harding, and Franklin D.
Roosevelt) died of natural causes, and four (Abraham
Lincoln, James A. Garfield, William McKinley, and
John F. Kennedy) were assassinated. One (Richard
Nixon) resigned from office.
In 1965 Congress recommended additional changes

in the Constitution to govern presidential succession.
The need became apparent after Lyndon Johnson
assumed the presidency following John F. Kennedy’s
assassination in 1963. Johnson’s ascension left the
vice presidency vacant. If anything had happened to
Johnson, the federal succession law dictated that
next in line was the Speaker of the House, followed
by the president pro tempore of the Senate (see Box
4-3). At the time of the 1964 election, the Speaker
was seventy-three-year-old John McCormack (D-
Mass.), and the president pro tempore was eighty-
seven-year-old Carl Hayden (D-Ariz.). Perhaps
believing that neither would have been capable of
handling the demands of the presidency, Congress
proposed that the Constitution be amended to
provide that when a vacancy occurs in the office of
vice president, the president nominates a new vice
president, who takes office upon confirmation by
majority vote in both houses of Congress. The
proposal also clarified procedures governing those
times when a president is temporarily unable to
carry out the duties of the office. The change was
ratified by the states as the Twenty-fifth Amendment
in 1967.
Although presidential approval is not required for

amendments to be proposed or ratified, President
Lyndon B. Johnson, surrounded by congressional
leaders, signed the Twenty-fifth Amendment on
February 23, 1967. The amendment authorized the
president to nominate a new vice president when a
vacancy in that office occurred. If Johnson had died
or become disabled before the 1964 election,
seventy-three-year-old Speaker John McCormack (far
right) would have assumed the presidency. Next in
the line of succession was the president pro tempore
of the Senate, eighty-seven-year-old Carl Hayden
(third from left, standing).
Courtesy of LBJ Library
It was not long before the country used the

procedures outlined in the Twenty-fifth Amendment.
In 1973 Vice President Spiro Agnew resigned when
he was charged with income tax evasion stemming
from alleged corruption during his years as governor
of Maryland. Nixon nominated, and Congress
confirmed, Representative Gerald R. Ford of
Michigan to become vice president. Just one year
later, Nixon resigned the presidency, and Ford
became the nation’s first unelected chief executive.
Ford selected Nelson Rockefeller, former governor of
New York, to fill the new vacancy in the vice
presidency.
Box 4-3 Line of Succession
ON MARCH 30, 1981, President Ronald Reagan

was shot by would-be assassin John Hinckley
outside a Washington hotel and rushed to an area
hospital for surgery. Vice President George H. W.
Bush was on a plane returning to Washington from
Texas. Presidential aides and cabinet members
gathered at the White House, where questions
arose among them and the press corps about who
was “in charge.”a In the press briefing room
Secretary of State Alexander M. Haig Jr. told the
audience of reporters and live television cameras,
“As of now, I am in control here in the White
House, pending the return of the vice president. . .
. Constitutionally, gentlemen, you have the
president, the vice president, and the secretary of
state.”
a. “Confusion over Who Was in Charge Arose

Following Reagan Shooting,” Wall Street Journal,
April 1, 1981.
Haig was, as many gleeful critics subsequently
pointed out, wrong. The Constitution says nothing
about who follows the vice president in the line of
succession. The Succession Act of 1947 (later
modified to reflect the creation of new
departments) establishes congressional leaders
and the heads of the departments, in the order the
departments were created, as filling the line of
succession that follows the vice president.
The line of succession is as follows:
Vice president
Speaker of the House of Representatives
President pro tempore of the Senate
Secretary of state
Secretary of the Treasury
Secretary of defense
Attorney general
Secretary of the interior
Secretary of agriculture
Secretary of commerce
Secretary of labor
Secretary of health and human services
Secretary of housing and urban development
Secretary of transportation
Secretary of energy
Secretary of education
Secretary of veterans affairs
Secretary of homeland security
A different “line”—not of succession to the

presidency but of National Command Authority in
situations of wartime emergency—was created
according to the National Security Act of 1947.
The command rules are detailed in secret
presidential orders that each new president signs
at the beginning of the term. Among other things,
the orders authorize the secretary of defense to
act as commander in chief in certain specific,
limited situations in which neither the president
nor the vice president is available. Presumably,
such situations would follow a nuclear attack on
Washington, D.C.
Source: Michael Nelson, ed., Guide to the

Presidency, 3rd ed. (Washington, DC: CQ Press,
2002), 409.
The President’s Constitutional

Authority and Tools for
Executing It
The first sentence of Article II—the vesting clause—
vests “executive power” in “a President of the United
States of America.” Sections 2 and 3 proceed to list
the president’s powers, and, unlike presidential
selection and succession, they are the same today as
when they were drafted by the Philadelphia
convention. What are these powers and how does
the President execute them?
Constitutional Authority
The Constitution expressly gives the president
powers in the domestic and foreign realms.
Enumerated domestic powers include the following:
To propose (“recommend”) laws to Congress
(Article II, Section 3)
To sign or veto bills passed by Congress (Article I,
Section 7)
To appoint judges and other government officers
(with the “advice and consent” of the Senate) and
to make recess appointments (Article II, Section
2)
To “grant Reprieves and Pardons for Offenses
against the United States” (Article II, Section 2)
To “take Care that the Laws be faithfully
executed” (Article II, Section 3)
In foreign affairs, the president’s express powers

include the following:
To be “Commander in Chief of the Army and Navy

of the United States” (Article II, Section 2)
To “make Treaties” with the concurrence of two-
thirds of the Senate (Article II, Section 2)
To “appoint Ambassadors [and] other public
Ministers and Consuls (“with the Advice and
Consent of the Senate”) (Article II, Section 2)
To “receive Ambassadors and other public
Ministers” (Article II, Section 3)
In this chapter and the next, you will have ample

opportunity to consider these powers because
virtually all have been the subject of litigation in the
Supreme Court. For now, we wish to make only a few
general points that you should keep in mind as you
read the cases to come.
First, we have divided the powers into domestic and
foreign, reflecting the perspective of political
scientists who suggest that there are actually two
“presidencies”: one for domestic affairs and one for
foreign policy. But this line is not always so clear.
Consider President Trump’s 2018 announcement
that he would impose tariffs on imported steel.
Imposing tariffs could be seen as an example of the
president taking “Care that the Laws be faithfully
executed” because various congressional acts give
the president authority to impose tariffs. But tariffs—
in essence, taxes imposed on imports from other
countries—also have implications for foreign
relations.
Second, all the president’s key powers are listed in

Article II with one notable exception: the authority to
sign or veto bills passed by Congress, which is in
Article I. The suggestion here is that Congress has
primary authority to make laws but the president
can check that authority by refusing to sign bills
(though Congress can stop the president from so
doing by overriding his veto). The power to appoint
judges and other government officials works in the
reverse. This appointment power falls under the
president’s Article II authority, but the Senate can
block the president’s choices by declining to confirm
them (it can also refuse to ratify treaties the
president makes).
Finally, notice the difference in wording in some of

the powers listed earlier. Some seem quite specific,
such as the president’s power to “grant Reprieves
and Pardons for Offenses against the United States,”
while others are more ambiguous. Consider the
president’s power to act as “Commander in Chief of
the Army and Navy of the United States.” Does that
language apply only to international conflicts, or
does it also have bearing on domestic concerns? For
example, could the executive branch take over the
nation’s steel mills because the president needs steel
for a war effort?10 Even the vesting clause of Article
II—“The executive Power shall be vested in a
President . . . ” raises questions: What did the
framers mean by the term executive power? Did they
use that term simply to summarize the powers in
Article II or as a general grant of power to the
president?
10 For different answers to this question, compare

the majority, concurring, and dissenting opinions in
Youngstown Sheet & Tube Co. v. Sawyer (1952),
excerpted in Chapter 5.
As you will see in the pages to come, the Supreme

Court has attempted to provide answers to these
questions and, along the way, clarify the president’s
authority. Attempts at clarification, we hasten to
note, have come in cases involving seemingly vague
powers as well as in those where the constitutional
language is quite specific. It may seem clear that the
president can grant pardons for “Offenses against
the United States,” but does his pardon power
extend to criminal contempt penalties imposed by a
federal judge? Would pardoning a person held in
contempt of court violate the separation of powers
system by impinging on the power of courts?11
11 For the Court’s answers, see Ex parte Grossman

excerpted later in the chapter.
The Tools of Presidential Power

This is but one example of the kinds of questions the
Court has addressed. Before turning to the Court’s
answers, let’s consider the tools available to the
president to exercise his authority. For some powers,
the tools are obvious. For example, after Congress
passes a bill, Section 7 of Article I commands the
president to sign the bill if he approves of it; if he
disapproves he can veto it, noting “his Objections to
that House in which it shall have originated.” In this
case the president’s tools are signing or vetoing
(with objections).
But how does the president exercise his primary

function to execute the law? The answer to this
question seems far less obvious than it is for the
other branches of government. Article I tells us that
Congress performs its primary function by passing
bills, and Article III suggests that the courts exercise
theirs by hearing and deciding disputes. Article II is
silent on how the president should execute the law
and so presidents have developed various tools to
perform their job. We consider four: executive
orders, military orders, signing statements, and
public communications.
Executive Orders.
On June 8, 1789, President George Washington sent
a “communique” to officers from the pre-
Constitution government asking each to prepare a
report “to impress me with a full, precise, and
distinct general idea of the affairs of the United
States.”12 According to many commentators,
Washington thought he had the authority to issue
this directive under Article II’s vesting clause, as
well as its command that the president “shall take
Care that the Laws be faithfully executed.”
12 Quoted in Harold C. Relyea, “Presidential

Directives: Background and Overview,”
Congressional Research Service, November 26,
2008.
Such presidential directives became the norm. And

though they come in different forms,13 “executive
orders” are the oldest—with Washington’s
considered the first. That’s because his meets the
usual definition of an executive order: an order
directed to people who work in the executive branch
aimed at ensuring they execute and enforce the laws
in line with the president’s priorities. In
Washington’s day, these people were few in number
—only four cabinet secretaries with minimal (if any)
staff. No longer. Today there are fifteen executive
departments—including the Departments of
Agriculture, Education, and State—each headed by a
cabinet secretary; there are also hundreds of
agencies and commissions, all located in the
executive branch. All told about 2 million people
work in the executive branch.14
13 We discuss military orders later in this chapter.

Other directives include proclamations,
announcements, and reorganization plans. See
Relyea, “Presidential Directives: Background and
Overview.”
14 See the U.S. Office of Personnel Management,

“Sizing Up the Executive Branch,” February 2018 at
https://www.opm.gov/policy-data-oversight/data-
analysis-documentation/federal-employment-
reports/reports-publications/sizing-up-the-executive-
branch-2016.pdf.
Since 1789, every president has issued executive

orders,15 from Washington’s 8 (about one a year) to
Obama’s 276 (about 35 a year).16 (Through early
2018, Trump issued 63 orders, or about 54 a year.)
Today, the procedure for issuing them is
straightforward: after the president signs the order,
he sends it to the Office of the Federal Register,
which numbers and publishes it in the Federal
Register. Usually the president will state the
constitutional or statutory authority that serves as
the basis for his order. When he issued his initial
order limiting entry of nationals from seven
countries into the United States (the “travel ban”),
President Trump pointed to the “authority vested in
me by the Constitution and the laws of the United
States of America,” including various immigration
acts. But there are no formal criteria the president
must meet before signing an executive order or even
repealing a former president’s order. He need not,
for example, send it to Congress for approval.
15 With one exception: William Henry Harrison, who

died of pneumonia a month after taking office.
16 Data on the number of executive orders are from

http://www.presidency.ucsb.edu/data/orders.php.
But there are still checks on executive orders. First,

the department or agency to which the order is
directed need not follow it. The problem for the
president is that when Congress created the various
agencies, it gave them, not the president, regulatory
authority.17 Providing an example is the
Environmental Protection Agency (EPA). Among its
responsibilities is to help implement the Clean Water
Act by devising pollution control programs and
standards. To this end, the Obama-era EPA issued a
rule that gives the government authority to limit
pollution in all bodies of water in the United States—
including streams and wetlands. When President
Trump took office, he wanted the EPA to roll back
this rule and issued an executive order directing the
EPA to “review and rescind or revise” it. By the
president’s own admission, his order in and of itself
had no effect because, once again, Congress tasked
the EPA—not the president—with regulating water
pollution. Nonetheless, on the same day that Trump
issued his order, the EPA announced its intent to
“review and rescind or revise” the rule.
17 For more on this point, see Lisa Manheim and

Kathryn Watts, The Limits of Presidential Power
(Amazon Digital Services, 2018).
That the EPA acceded to Trump’s request shores up

a problem with this “check” on executive orders. The
heads of many agencies are not only appointed by
the president—and so presumably share his policy
agenda—but they also can be removed by him.18
Had the EPA refused to follow the president’s
directive, he might have taken that very step.
18 This does not hold for independent regulatory

agencies. See Humphrey’s Executor v. United States
(1935), excerpted later in this chapter.
A second check on executive orders seems stronger:

like congressional laws, they can be challenged in
court on various grounds—including their
constitutionality. In such cases, as we will see, the
Supreme Court may well invalidate them if they
violate another section of the Constitution (such as
the First Amendment’s guarantee of free expression)
or if the president lacked constitutional or statutory
authority to issue them.
That the federal courts and ultimately the Supreme

Court can assess the constitutionality of the
president’s directives is quite important. In directing
executive officers to take some action, the president
can affect the lives of many ordinary people. Over
the years, presidents have issued executive orders
“to suspend habeas corpus, desegregate the military,
implement affirmative action requirements for
government contractors, institute centralized review
of proposed agency regulations, stall stem cell
research, create the nation’s first cybersecurity
initiative,”19 and restrict people from certain
countries from entering the United States.
19 Erica Newland, “Executive Orders in Court,” Yale

Law Journal 124: 1836–2201 (2015).
Military Orders.
Military orders are akin to executive orders, but they
generally cite the president’s commander-in-chief
authority, along with any relevant statutes, as the
basis for issuing the order, and, of course, they
usually deal with foreign affairs. For example, in the
wake of the attack on the United States on
September 11, 2001, George W. Bush issued a
military order on the detention and treatment of
people who had engaged in or aided in acts of
terrorism. One of its provisions authorized the
secretary of defense to issue regulations regarding
military commissions that would try suspected
terrorists.
Just as courts can determine the constitutionality of

executive orders, they can also review and invalidate
military orders. And, in fact, various provisions of
Bush’s military order came under attack in several
Supreme Court cases. In Chapter 6, you’ll have a
chance to consider the Court’s response in one:
Hamdi v. Rumsfeld (2004).
Signing Statements.
As you know, presidents can veto or sign bills passed
by Congress. When they sign them, presidents
occasionally express their views about particular
bills in documents known as presidential signing
statements. In these statements, the president
sometimes points to one or more provisions within
the laws over which he has some concerns. To that
end, he may
express his interpretation of the language of the

law,
announce constitutional limits on the
implementation of some of the law’s provisions,
or
instruct executive branch officials as to how to
administer the new law in an acceptable
manner.20
20 Philip J. Cooper, “George W. Bush, Edgar Allen
Poe, and the Use and Abuse of Presidential Signing
Statements,” Presidential Studies Quarterly 35: 515–
532, at 517. We adapt material in this section from
this article. See also Cooper’s book By Order of the
President: The Use and Abuse of Executive Direct
Action (Lawrence: University Press of Kansas, 2002).
To provide some examples: President George W.

Bush issued a signing statement registering his
objection to a 2002 law that directs the secretary of
state to record, upon request, “Israel” as the place of
birth on passports of U.S. citizens born in Jerusalem.
To Bush, the law, which was meant to override State
Department policy listing Jerusalem only and not
Israel on passports, might interfere with the
President’s “constitutional authority . . . to recognize
foreign states.” Likewise, in 2011, after agreeing to
a budget compromise law, President Barack Obama
declared his intention to ignore a section of the law
that prohibited the use of appropriations for four
executive branch “czars.” In his first year and a half
in office, Trump issued twelve signing statements,
including one on a 2017 law that imposed sanctions
on Iran, North Korea, and Russia. Trump signed the
bill but wrote: “While I favor tough measures to
punish and deter aggressive and destabilizing
behavior [in these countries] . . . Congress included
a number of clearly unconstitutional provisions”
including those that “purport to displace the
President’s exclusive constitutional authority to
recognize foreign governments.”
On what authority did Bush, Obama, Trump, and, in
fact, all other presidents since James Monroe issue
these statements? Although the Constitution
contains no specific authorization, some presidents
have pointed to their Article II power to “take Care
that the Laws be faithfully executed.” If so, then the
president seems to saying, “I will not execute or
enforce provisions of a law I believe to be
unconstitutional.” Signing statements also represent
a form of constitutional interpretation by the
president. Well before the Supreme Court can rule
on a law, assuming it ever does, the president’s
views on the constitutionality of particular portions
of it have been made public.
What have the justices had to say about this

practice? Not much, as it turns out. Although signing
statements have been the subject of lower court
litigation, they have not faced a constitutional
challenge in the Supreme Court. Moreover, the
justices have virtually ignored these statements in
their review of federal laws. In only a handful of
cases has the Court cited, much less relied on,
presidential signing statements to interpret
legislation.
But pressure may be building within the Court to pay

greater heed to the practice. In Hamdan v.
Rumsfeld (2006), Justice Antonin Scalia, in
condemning the Court’s use of legislative history to
interpret a law, chided the majority for “wholly
ignor[ing] the President’s signing statement, which
explicitly set forth his understanding” of the law at
issue. An “understanding,” we might add, with which
Scalia agreed but the majority did not. Perhaps
taking heed of Scalia’s objection, the majority
mentioned Bush’s signing statement when the
earlier-mentioned passport law was challenged in
Zivotofsky v. Kerry (2015) (excerpted in Chapter 5),
though Justice Scalia, in dissent, did not.
So far, we are left with more questions than answers.

Will the justices now become more attentive to
signing statements when they interpret or review
the constitutionality of federal laws? Should they?
And what about the practice itself, especially its
implications? Prior to a federal court decision, are
presidents obligated to execute statutory provisions
that they believe are unconstitutional? If so, should
they not issue signing statements? Finally, does the
use of signing statements undermine Marshall’s view
that it is the judiciary’s job to say what the law is?
We leave these questions for you to consider as you
read the material and cases to follow here and in
Chapter 5.
Public Communications.
Presidents have many other methods for
communicating how they will execute laws. They can
hold press conferences, give interviews to the press,
and take to social media. Trump is an active user of
Twitter, having tweeted thousands of times since
taking office. Many of his tweets are little more than
notes of congratulations or expressions of support
for political allies. But in some tweets he has
attempted to explain, expand, or offer commentary
on particular policies or executive orders, as some
commentators allege he did after issuing the
executive order instituting the travel ban. For
example, after Trump retweeted three anti-Muslim
videos, members of his administration connected
them to the travel ban.21
21 See IRAP v. Trump, 883 F. 3d 233 (CA4 2018).
Should tweets and other public statements have a

role in Court decisions? In Trump v. Hawaii (2018),
in which the Court considered the travel ban, the
justices seemed to answer in the affirmative: tweets
and the like (“extrinsic evidence”) sometimes can be
used to determine whether or not government action
is “inexplicable by anything but animus” (here “bare
. . . desire to harm a politically unpopular group”22),
as Justice Anthony Kennedy wrote in a concurring
opinion. In the case of the travel ban, the majority
found that legitimate purposes motivated the ban—
notably, national security—and so an inquiry into
animus was unnecessary. Justice Sonia Sotomayor
disagreed. Writing in dissent, she took Trump’s
tweets and other public statements as “strong
evidence that impermissible hostility and animus
motivated the Government’s policy.”
22 Department of Agriculture v. Moreno (1973).

The Faithful Execution of the
Laws: Defining the Contours of
Presidential Power
With that background in mind, let’s turn to how the
Supreme Court has interpreted the powers of the
president, beginning with Article II’s vesting clause
—“The executive Power shall be vested in a
President . . .”—and return to a question we raised
earlier: What did the framers mean by the term
executive power? There are two possibilities: (1) a
mere designation of office or (2) a general grant of
power.
The “mere designation” view holds that the first

sentence of Article II simply summarizes the powers
listed later on. That is, the president is limited to
those specific grants of power contained in Sections
2 and 3 of Article II. This was the position James
Madison implied in Federalist No. 51 and that
President William Howard Taft advocated:
The true view of the Executive function is, as I

conceive it, that the President can exercise no
power which cannot be fairly and reasonably
traced to some specific grant of power or justly
implied and included within such express grant
as proper and necessary to its exercise. Such
specific grant must be either in the Federal
Constitution or in an act of Congress passed in
pursuance thereof. There is no undefined
residuum of power which he can exercise
because it seems to him to be in the public
interest.23
23 William Howard Taft, Our Chief Magistrate and

His Powers (New York: Columbia University, 1916),
139–140. Taft may have been a proponent of the
“mere designation” view, but he did not advocate a
weak president. In fact, Taft’s opinion in Myers v.
United States (1926) suggests that he was a
proponent of the unitary executive theory, which we
discuss later in the chapter.
Is there any constitutional or historical basis for this

position? A common piece of support is based on
pure logic: Why would the framers bother to list
specific powers, as they did in Article II, if they
meant for the president to have more powers than
those they enumerated?
Alexander Hamilton in Federalist No. 70 and other

advocates of the “general grant of power” view,
which some scholars call the stewardship theory,
take a much different position. On their account, the
president has all the powers listed in Article II plus
those additional powers needed to run the nation—
regardless of whether the Constitution specifically
authorizes their exercise. In other words, as long as
neither the Constitution nor Congress has restricted
the president from doing something for the common
good, the president may do it. Seen in this way, the
term executive power in Article II is a general grant
of power to the president, who must exercise that
power in ways that best serve the nation. As
President Theodore Roosevelt, an advocate of this
view, put it,
The most important factor in getting the right

spirit in my Administration, next to the
insistence upon courage, honesty, and a genuine
democracy of desire to serve the plain people,
was my insistence upon the theory that the
executive power was limited only by specific
restrictions and prohibitions appearing in the
Constitution or imposed by the Congress under
its Constitutional powers. My view was that
every executive officer, and above all every
executive officer in high position, was a steward
of the people bound actively and affirmatively to
do all he could for the people, and not to content
himself with the negative merit of keeping his
talents undamaged in a napkin. I declined to
adopt the view that what was imperatively
necessary for the Nation could not be done by
the President unless he could find some specific
authorization to do it.24
24 Theodore Roosevelt, An Autobiography (New

York: Macmillan, 1913), 371–372.
How do proponents of this view justify it? One way is
through an appeal to common sense: as the only
national leader who is available twenty-four hours a
day, the president must be able to exercise personal
judgment in addressing any problems that may arise.
To do so, the president must have the latitude to deal
with situations that the framers never envisioned.
Another response relies on the take care clause of
Article II, Section 3, which states that the president
shall be given the responsibility to “take Care that
the Laws be faithfully executed.” To carry out this
command, adherents of the stewardship theory
argue, the president must have powers that go
beyond those explicitly enumerated in Article II.
If the debate between these two camps reminds you

of the controversy between Jefferson and Hamilton
over the creation of the Bank of the United States
and, more generally, over congressional powers, you
would not be wrong. Just as Jefferson argued that
the Constitution limits Congress to enumerated
powers, advocates of the mere designation approach
suggest that the president can exercise only the
powers listed in Article II. And just as Hamilton
asserted that the necessary and proper clause of
Article I provides Congress with some degree of
flexibility, adherents of the stewardship theory argue
that the take care clause of Article II enables the
president to exercise powers beyond those listed in
Article II.
Which view would the Court adopt? The justices
provided one answer in the important case of In re
Neagle (1890).25 The appeal presenting this case
was based on one of the more bizarre and twisted
stories in constitutional history. The dispute began
some three decades before the case reached the
Supreme Court. When the trial court reviewed the
essential facts, the telling took more than five
hundred pages. As you read this decision, consider
the extent to which you think the Court’s response
was influenced by the fact that one of its own
members had been threatened.
25 The docket title of this case is Thomas

Cunningham, Sheriff of the County of San Joaquin,
California, Appellant v. David Neagle.
Sarah Althea Hill Terry, wife of David Terry and

central figure in the dispute with Justice Stephen
Field that led to the killing of her husband.
Courtesy of The Bancroft Library, The University
of California
David S. Terry, former California state supreme court

judge.
of California
Stephen J. Field, associate justice of the U.S.

Supreme Court, 1863–1897.
Library of Congress
An illustration depicting U.S. Deputy Marshal David
Neagle, assigned to protect Justice Stephen J. Field,
shooting David Terry in a railroad station restaurant
in Lathrop, California, in 1889.

of California
In re Neagle 135 U.S. 1 (1890)
court/135/1.html
Vote: 6 (Blatchford, Bradley, Brewer, Gray, Harlan,

Miller)
2 (Fuller, Lamar)
OPINION OF THE COURT: Miller

DISSENTING OPINION: Lamar
NOT PARTICIPATING: Field
Facts:
Stephen J. Field and David S. Terry both went to
California during the 1849 gold rush—Field from
New England and Terry from the South. Both
became judges on the California Supreme Court,
with Terry its chief judge.26 In 1859 a bitter
dispute erupted between Chief Judge Terry and
David Broderick, a U.S. senator. Terry resigned his
position, challenged Broderick to a duel, and
killed him. Field had been a close friend of
Broderick, and he vowed never to forget the
killing. Field was then elevated to the chief
justiceship of the state court, and four years later
President Abraham Lincoln appointed him to the
U.S. Supreme Court.
26 For an account of the events surrounding this

case, see Robert Kroninger, “The Justice and the
Lady,” in Yearbook 1977 of the Supreme Court
Historical Society (Washington, DC: Supreme
Court Historical Society, 1977), 11–19.
Terry went into private practice and eventually

came to represent Sarah Althea Hill in a divorce
action. Hill claimed to be the wife of William
Sharon, a former U.S. senator from Nevada, who
was a millionaire mine operator and hotel owner.
Hill charged Sharon with adultery and sued for
divorce, but Sharon denied ever having married
her. Many believed that she was just another in a
long line of mistresses Sharon had after his wife
died. Sarah Hill claimed to have a document
proving the marriage was valid, but during the
divorce hearing the court ruled the document to
be a forgery and dismissed her action.
When William Sharon died, his son Frederick took

legal action to dismantle any claim Sarah Hill had
to his father’s estate. Attorney Terry by this time
had fallen in love with his beautiful client (and
perhaps with her potentially large inheritance)
and married her. As chance would have it, in
September 1888 Justice Field was assigned to a
three-judge circuit court to decide the suit
brought by Frederick Sharon against Sarah Terry.
When the judges announced their ruling in favor
of Sharon, violence erupted in the courtroom.
Sarah Terry shouted accusations that Field had
been bribed to reach his decision. Field ordered
the marshals to remove her, and David Terry,
defending his wife, struck a marshal and knocked
out a tooth. He also brandished a bowie knife, and
Sarah attempted to pull a revolver from her purse.
The marshals subdued both of them. Sarah Terry
was sentenced to one month in jail for contempt,
and David Terry to six months in jail.
During his imprisonment, Terry’s hatred of Field

festered. On several occasions and before
numerous witnesses, he pledged to horsewhip and
then kill Field if the justice ever returned to
California. Sarah Terry also threatened to kill
Field. In response, President Benjamin Harrison
and the U.S. attorney general decided to provide
protection for Justice Field on his next judicial
visit to California. The administration authorized a
federal marshal, David Neagle, to act as Field’s
bodyguard when the justice was on circuit court
duty in California.
Field returned to California in the summer of

1889, and Neagle was with him at all times.
Traveling from Los Angeles to San Francisco by
train, Field disembarked at Lathrop to eat
breakfast in the station dining room. The Terrys,
who had been on the same train, entered the
dining room and saw him. Sarah returned to the
train to get her revolver, while David walked up
behind Field, slapped him twice on the side of the
face, and raised his fist for a third blow. Neagle
immediately rose from his seat with his revolver
drawn and ordered Terry to stop. Terry reached
into his coat, and Neagle, fearing that he was
going for a weapon, fired two shots, one to the
chest and the other to the head, killing him. When
Terry’s body was searched, no weapons were
found.
Sarah Terry, who was to spend her last forty-five

years in a state mental institution, claimed that
Neagle, in conspiracy with Field, murdered her
husband. She was sufficiently convincing that the
bodyguard was arrested and charged with murder.
Charges also were filed against Field as an
accomplice, but they were later dropped.
A federal court granted a writ of habeas corpus

ordering state authorities to release Neagle, and
California appealed. The central question was
whether the president, without congressional
action, could issue an executive order through the
U.S. attorney general to authorize a bodyguard to
protect Justice Field. If he did, then Neagle likely
had authority to act as he did; if not, he could be
tried for murder in California.
Arguments:
For the appellant, Thomas Cunningham,
Sheriff of San Joaquin County,
California:
Under California law, Neagle’s rights to use
force to protect Justice Field were limited to
protecting him within the courthouse. Neither
the president nor the attorney general has the
power to authorize Neagle to guard Field
outside the courthouse.
If the president has any such power, what is its
source? If the president has power, within the
jurisdiction of the several states, to assign a
bodyguard to all federal officials, he has power
to place a marshal in the house of every
American citizen to shield him from harm at
the hands of his fellow citizens. And, if it has
come to this, what use do we have for state
governments?
For the appellee, David Neagle:

The president is constitutionally required to
“take care that the laws be faithfully
executed,” and that clause invests in the
president implied powers beyond expressly
listed executive powers in the Constitution,
independent of congressional statutes.
The doctrine of necessary and implied powers
is not limited to Congress. On the contrary,
because the Constitution invests the president
with executive power and confers on him the
power to “take care that the laws be faithfully
executed,” it gives him all power reasonably
incident to exercise the executive function and
necessary to enforce the laws. As long as the
power has not been withheld from him by the
Constitution and flows from the Constitution,
the power is his.
It was the duty of the executive branch to
guard and protect the life of Justice Field in the
discharge of his duty because protection of
courts and judges is essential to the very
existence of the government, as the framers
emphasized in The Federalist Papers.
Mr. Justice Miller Delivered the Opinion of the

Court.
The justices of the Supreme Court have been

members of the Circuit Courts of the United
States ever since the organization of the
government, and their attendance on the circuit
and appearance at the places where the courts are
held has always been thought to be a matter of
importance. In order to enable him to perform this
duty, Mr. Justice Field had to travel each year from
Washington City, near the Atlantic coast, to San
Francisco, on the Pacific coast. In doing this he
was as much in the discharge of a duty imposed
upon him by law as he was while sitting in court
and trying cases. . . .
Justice Field had not only left Washington and

travelled the three thousand miles or more which
were necessary to reach his circuit, but he had
entered upon the duties of that circuit, had held
the court at San Francisco for some time; and,
taking a short leave of that court, had gone down
to Los Angeles, another place where a court was
to be held, and sat as a judge there for several
days, hearing cases and rendering decisions. It
was in the necessary act of returning from Los
Angeles to San Francisco, by the usual mode of
travel between the two places, where his court
was still in session, and where he was required to
be, that he was assaulted by Terry. . . .
The occurrence which we are called upon to

consider was of so extraordinary a character that
it is not to be expected that many cases can be
found to cite as authority upon the subject. . . .
We have no doubt that Mr. Justice Field when

attacked by Terry was engaged in the discharge of
his duties as Circuit Justice of the Ninth Circuit,
and was entitled to all the protection under those
circumstances which the law could give him.
It is urged, however, that there exists no statute

authorizing any such protection as that which
Neagle was instructed to give Judge Field in the
present case, and indeed no protection whatever
against a vindictive or malicious assault growing
out of the faithful discharge of his official duties;
and that the language [of a federal law], that the
party seeking the benefit of the writ of habeas
corpus must in this connection show that he is “in
custody for an act done or omitted in pursuance of
a law of the United States,” makes it necessary
that upon this occasion it should be shown that
the act for which Neagle is imprisoned was done
by virtue of an act of Congress. It is not supposed
that any special act of Congress exists which
authorizes the marshals or deputy marshals of the
United States in express terms to accompany the
judges of the Supreme Court through their
circuits, and act as a bodyguard to them, to
defend them against malicious assaults against
their persons. But we are of opinion that this view
of the statute is an unwarranted restriction of the
meaning of a law designed to extend in a liberal
manner the benefit of the writ of habeas corpus to
persons imprisoned for the performance of their
duty. And we are satisfied that if it was the duty of
Neagle, under the circumstances, a duty which
could only arise under the laws of the United
States, to defend Mr. Justice Field from a
murderous attack upon him, he brings himself
within the meaning of the section we have recited.
...
In the view we take of the Constitution of the

United States, any obligation fairly and properly
inferable from that instrument, or any duty of the
marshal to be derived from the general scope of
his duties under the laws of the United States, is
“a law” within the meaning of this phrase. It
would be a great reproach to the system of
government of the United States, declared to be
within its sphere sovereign and supreme, if there
is to be found within the domain of its powers no
means of protecting the judges, in the
conscientious and faithful discharge of their
duties, from the malice and hatred of those upon
whom their judgments may operate unfavorably. . .
.
Where, then, are we to look for the protection

which we have shown Judge Field was entitled to
when engaged in the discharge of his official
duties? Not to the courts of the United States;
because, as has been more than once said in this
court, in the division of the powers of government
between the three great departments, executive,
legislative and judicial, the judicial is the weakest
for the purposes of self-protection and for the
enforcement of the powers which it exercises. The
ministerial officers through whom its commands
must be executed are marshals of the United
States, and belong emphatically to the executive
department of the government. They are
appointed by the President, with the advice and
consent of the Senate. They are removable from
office at his pleasure. They are subjected by act of
Congress to the supervision and control of the
Department of Justice, in the hands of one of the
cabinet officers of the President, and their
compensation is provided by acts of Congress. . . .
The legislative branch of the government can only

protect the judicial officers by the enactment of
laws for that purpose, and the argument we are
now combating assumes that no such law has
been passed by Congress.
If we turn to the executive department of the

government, we find a very different condition of
affairs. The Constitution, section 3, Article 2,
declares that the President “shall take care that
the laws be faithfully executed,” and he is
provided with the means of fulfilling this
obligation by his authority to commission all the
officers of the United States, and, by and with the
advice and consent of the Senate, to appoint the
most important of them and to fill vacancies. He is
declared to be commander in chief of the army
and navy of the United States. The duties which
are thus imposed upon him he is further enabled
to perform by the recognition in the Constitution,
and the creation by acts of Congress, of executive
departments, which have varied in number from
four or five to seven or eight, the heads of which
are familiarly called cabinet ministers. These aid
him in the performance of the great duties of his
office, and represent him in a thousand acts to
which it can hardly be supposed his personal
attention is called, and thus he is enabled to fulfill
the duty of his great department, expressed in the
phrase that “he shall take care that the laws be
faithfully executed.” Is this duty limited to the
enforcement of acts of Congress or of treaties of
the United States according to their express
terms, or does it include the rights, duties and
obligations growing out of the Constitution itself,
our international relations, and all the protection
implied by the nature of the government under the
Constitution? . . .
We cannot doubt the power of the President to

take measures for the protection of a judge of one
of the courts of the United States, who, while in
the discharge of the duties of his office, is
threatened with a personal attack which may
probably result in his death, and we think it clear
that where this protection is to be afforded
through the civil power, the Department of Justice
is the proper one to set in motion the necessary
means of protection. . . .
It would seem as if the argument might close here.

If the duty of the United States to protect its
officers from violence, even to death, in discharge
of the duties which its laws impose upon them, be
established, and Congress has made the writ of
habeas corpus one of the means by which this
protection is made efficient, and if the facts of this
case show that the prisoner was acting both under
the authority of law, and the directions of his
superior officers of the Department of Justice, we
can see no reason why this writ should not be
made to serve its purpose in the present case. . . .
The result at which we have arrived upon this

examination is, that in the protection of the person
and the life of Mr. Justice Field while in the
discharge of his official duties, Neagle was
authorized to resist the attack of Terry upon him;
that Neagle was correct in the belief that without
prompt action on his part the assault of Terry
upon the judge would have ended in the death of
the latter; that such being his well-founded belief,
he was justified in taking the life of Terry, as the
only means of preventing the death of the man
who was intended to be his victim; that in taking
the life of Terry, under the circumstances, he was
acting under the authority of the law of the United
States, and was justified in so doing; and that he is
not liable to answer in the courts of California on
account of his part in that transaction.
We therefore affirm the judgment of the Circuit
Court authorizing his discharge from the custody
of the sheriff of San Joaquin County.
MR. JUSTICE LAMAR (with

whom concurred MR. CHIEF
JUSTICE FULLER) dissenting.
[W]e deny that upon the facts of this record,
[Neagle], as deputy marshal Neagle, or as private
citizen Neagle, had any duty imposed on him by
the laws of the United States growing out of the
official character of Judge Field as a Circuit
Justice. We deny that anywhere in this transaction,
accepting throughout the appellee’s version of the
facts, he occupied in law any position other than
what would have been occupied by any other
person who should have interfered in the same
manner, in any other assault of the same
character, between any two other persons in that
room. In short, we think that there was nothing
whatever in fact of an official character in the
transaction, whatever may have been the
appellee’s view of his alleged official duties and
powers; and, therefore, we think that the courts of
the United States have in the present state of our
legislation no jurisdiction whatever in the
premises, and that the appellee should have been
remanded to the custody of the sheriff. . . .
The gravamen of this case is in the assertion that

Neagle slew Terry in pursuance of a law of the
United States. He who claims to have committed a
homicide by authority must show the authority. If
he claims the authority of law, then what law? And
if a law, how came it to be a law? Somehow and
somewhere it must have had an origin. Is it a law
because of the existence of a special and private
authority issued from one of the executive
departments? So in almost these words is claimed
in this case. Is it a law because of some
constitutional investiture of sovereignty in the
persons of judges who carry that sovereignty with
them wherever they may go? Because of some
power inherent in the judiciary to create for
others a rule or law of conduct outside of
legislation, which shall extend to the death
penalty? So, also, in this case, . . . it is claimed. We
dissent from both these claims. There can be no
such law from either of those sources. The right
claimed must be traced to legislation of Congress;
else it cannot exist.
In Neagle the Court adopted the “general grant”

perspective of executive power. The justices held
that the president has the constitutional power to
take those actions necessary to enforce the laws of
the nation, even if the Constitution does not provide
an explicit authorization for doing so.
Strong support from the Court for this view came

again in an 1895 case, In re Debs. In May 1894
President Grover Cleveland sent troops into Chicago
to stop striking train workers from obstructing the
movement of the U.S. mails, and he had his attorney
general secure a court injunction against the striking
workers. When the workers defied the injunction and
violence erupted, their leader, Eugene Debs, was
cited for contempt. Debs, in turn, challenged the
injunction, claiming that the president could not
obtain it in the absence of explicit congressional
authorization. The justices disagreed: “Every
government, entrusted, by the very terms of its
being, with powers and duties to be exercised . . . for
the general welfare, has the right to apply to its own
courts for any proper assistance.” Moreover,
because the strike adversely affected the public, the
president could forbid it.
Congressional Limitations on
Executive Power
Debs and Neagle are examples of rulings that allow
the president to take action without explicit approval
from Congress or the Constitution—and, therefore,
support the stewardship approach to the presidency.
But the Court also has placed at least two types of
limits on presidential prerogative.
The first—what we call the congressional limit—is

well illustrated by Youngstown Sheet & Tube
Company v. Sawyer (1952), also known as the Steel
Seizure Case (excerpted in Chapter 5). In December
1951 the United Steelworkers Union announced that
it would call a strike at the end of the month.
Because the nation was engaged in a war in Korea
and steel was needed in the production of arms and
other military equipment, President Harry S. Truman
was not about to let a strike shut down the mills.
Only hours before the strike was to begin, Truman
issued an executive order commanding Secretary of
Commerce Charles Sawyer to seize the nation’s steel
mills and keep them in operation. Sawyer in turn
ordered the mill owners to continue to run their
facilities as operators for the United States.
Truman’s seizure order cited no statutory authority

for his action because there was none. Federal
statutes permitted government seizure of industrial
plants for certain specified reasons, but the
settlement of a labor dispute was not one of them. In
fact, the Taft-Hartley Act of 1947 rejected the idea
that labor disputes could be resolved by such means.
Instead, the act authorized the president to impose
an eighty-day cooling-off period as a way to postpone
any strike that seriously threatened the public
interest. Truman, however, had little regard for the
Taft-Hartley Act, which Congress had passed over
his veto. The president ignored the cooling-off period
alternative and took the direct action of seizing the
mills. The inherent powers of the chief executive, he
maintained, were enough to authorize the action.
A divided Supreme Court disagreed. Two members

of the Court (Douglas and Black) adopted the mere
designation or enumerated approach; they wrote,
“The President’s power, if any, to issue the order
must stem either from an act of Congress or from
the Constitution itself.” Three justices (Vinson, Reed,
and Minton) took the opposite position. In their
opinion, the take care clause provided the president
with a sufficient constitutional basis for his actions:
he was taking steps that were in the best interest of
the country until Congress could act. Finally, a
plurality of four (Burton, Clark, Frankfurter, and
Jackson) settled somewhere between the two
extremes. Unlike Black and Douglas, they asserted
that the president has powers beyond those
enumerated in Article II. But, in contrast to Vinson,
Reed, and Minton, they argued that President
Truman could not seize the mills because he had
acted against the “implied” desires of Congress. As
Jackson put it in a landmark concurring opinion,
“When the President takes measures incompatible
with the expressed or implied will of Congress, his
power is at the lowest ebb, for then he can rely only
upon his own constitutional powers minus any
constitutional powers of Congress over the matter.”
Despite these divisions, the lesson from Youngstown

—especially Jackson’s concurrence—is clear:
presidential powers may not be fixed, but the
president can act against the will of Congress only if
the president can show that the power he is
asserting conclusively and exclusively belongs to
him.27 The situation confronting the Court becomes
murkier, however, when Congress has not explicitly
approved or disapproved of presidential action. We
have more to say about that situation in Chapter 5,
in which we discuss the relative powers of the
president and Congress over foreign affairs and in
times of national emergencies, such as the 2001
terrorist attacks on New York City and Washington,
D.C.
27 This happened in Zivotofsky v. Kerry (2015), in

which the president claimed “exclusive” and
“conclusive” power to “receive Ambassadors and
other public Ministers.” We consider this case in
Chapter 5.
The Obligation to Enforce the

Law
Another limit on presidential power centers on the
lack of enforcement of the laws. Simply put, the
Constitution obliges the president to enforce all the
laws, not just those the administration supports.
Although a number of presidents have been
criticized for failing to carry out certain laws with
sufficient enthusiasm, it would be difficult to show
that the chief executive had not satisfied the
constitutional mandate of faithful execution. On rare
occasions, however, a president has openly refused
to execute a law validly passed by Congress. In such
cases court challenges are to be expected.
Train v. City of New York (1975) provides an

example. At issue was the Federal Water Pollution
Control Act Amendments of 1972, which Congress
passed over President Nixon’s veto. The act made
billions of dollars in federal money available to local
governments for sewers and clean water projects.
After losing the legislative battle, the president
instructed the administrator of the Environmental
Protection Agency (EPA) not to allot to local
governments the full funds authorized by Congress.
For example, for fiscal year 1973 Nixon directed
officials to spend no more than $2 billion when
Congress authorized as much as $5 billion for that
year.
New York City, which expected to be a recipient of

some of these funds, filed suit against Train, head of
the EPA, to force the administration to release the
impounded money. In interpreting the legislation,
the Supreme Court in Train found no congressional
grant of discretion to the president that would allow
him to decide how much of the appropriated money
to allocate. In the absence of such a grant, the
president’s obligation was to carry out the terms of
the statute: the funds, the Court held, must be
distributed according to the intent of Congress.
Train has come to stand for the proposition that the

president cannot “frustrate the will” of Congress by
destroying a program through impoundment; he
must enforce and administer the policies enacted by
the legislature (even if he opposes them) to fulfill his
constitutional requirement to execute the laws. But
some commentators wonder about the reach of Train
because of the facts surrounding it: Nixon had
vetoed the bill, substantial amounts of money were
at stake, and the law did not seem to give the
president discretion to reduce the amount allocated.
Whether a different set of facts would lead the Court
to give the president more leeway remains an open
question.
Failure to enforce the law is one thing. It is quite

another when administrations have chosen not to
defend the constitutionality of particular federal
laws. For example, in Myers v. United States (1926),
which we will consider soon, the administration’s
solicitor general not only refused to defend the law
at issue (curtailing presidential authority to fire a
postmaster) but also argued against its
constitutionality. Myers is not all that unusual.
Between 2004 and 2010 alone the Justice
Department declined to defend statutes in nearly
fifteen cases,28 and the Trump administration has
followed suit, refusing to defend the constitutionality
of provisions of the Affordable Care Act
(“Obamacare”).
28 Tony Mauro, “Government’s ‘Duty to Defend’ Not

a Given,” National Law Journal, October 27, 2010.
When the administration takes this position,

criticism usually follows, as it did when Barack
Obama’s attorney general announced that the
president would not defend the constitutionality of
the Defense of Marriage Act (DOMA), which defined
marriage for federal purposes as the legal union
between one man and one woman.29 Critics contend
that the government has a duty to “take Care that
the Laws be faithfully executed,” even if the
president disagrees with those laws as a matter of
policy. On the other side, presidents have argued
that they take an oath to “preserve, protect, and
defend” the Constitution and so have an obligation
to make their own independent assessments of the
constitutionality of federal laws, especially if those
laws encroach on executive authority. In such a
circumstance, the administration notifies Congress
that it is not defending the law in question; Congress
can then seek its own defense. In the case of DOMA,
for example, the House of Representatives hired a
former solicitor general, Paul Clement, to defend it.
29 United States v. Windsor (2013).
Domestic Powers of the

President
Executing the law is a general command to the
president. But Article II also lists specific powers
that belong to the president. In this section we
examine the president’s domestic powers, and in the
next we consider powers over external relations.
Discussing the powers separately, as we noted
earlier, reflects commentary suggesting two
“presidencies”: one for domestic affairs and one for
foreign policy. Although it is often hard to separate
the two at times when one affects the other—with
tariffs providing an example—differences remain.
For example, some scholars argue that the president
is generally more constrained—by the public,
Congress, and even the Supreme Court—in domestic
affairs than in the realm of foreign policy. As you
read the material to come, as well as the cases and
narrative in Chapter 5, consider whether this
division makes sense today. Has the Supreme Court
approved greater presidential power over foreign
policy? More generally, what approaches have the
justices taken to the specific powers of the
president?
Veto Power
Section 7 of Article I of the Constitution contains
what has become known as the presentment clause.
By its terms, after Congress passes a piece of
legislation, it is sent to the president, who then has
three options: sign it, veto it, or do nothing. If the
president signs it, the bill becomes law. If he vetoes
it, Congress can attempt to override him by the
required two-thirds vote. If he does nothing, the bill
becomes law after ten days, provided that Congress
is in session; if Congress adjourns during the ten-day
period, the bill is “pocket vetoed.” Congress cannot
override a pocket veto, but it can reintroduce the bill
in its next session. Although presidents do not often
use the pocket veto (since 1789, only 1,066 times, or
about five times a year) or, for that matter, their
regular veto power (since 1789, 1,508 times, or
about seven times a year), they typically regard their
option to do so as important.30 At the very least, a
president can hold out the veto as a threat against a
recalcitrant Congress, and Congress has generally
been unwilling or unable to override a presidential
veto. Of the 1,508 regular vetoes since 1789, only
111 have been overridden.
30 Data in this paragraph are from “Summary of

Bills Vetoed, 1789–Present,” U.S. Senate Web site,
http://www.senate.gov/reference/Legislation/Vetoes/v
etoCounts.htm.
For much of American history, the veto power

generated few constitutional disputes, but that is no
longer true. Two issues relating to the veto have
been the cause of major controversies. One, which
we discuss in some detail in Chapter 5, is the
legislative veto (when one or both houses of
Congress attempt to veto decisions of the executive
branch). The other is the line-item veto, which
allowed the president to cancel particular taxing and
spending provisions after they were signed into law.
To understand why the line-item veto is
controversial, think first about the way bills become
laws: since the days of George Washington, Congress
has passed laws and the president has had to decide
whether to accept or reject them in their entirety.
Most presidents have not been happy with this
arrangement. Beginning with Ulysses S. Grant,
virtually all have sought the ability to veto parts of a
bill and accept others.
Among the rationales presidents have offered for the

line-item veto, a common one is this: members of
Congress must face periodic electoral checks, and
they often include in the federal budget “pork-barrel
projects”—projects designed solely to appease
constituents—even though such projects waste
money. Because members of Congress are unwilling
to take fiscal responsibility and omit unnecessary
spending from the budget, the argument goes, the
president should take on this responsibility by being
able to veto or “cancel” particular expenditures.
In 1996 Congress finally agreed and enacted the

Line Item Veto Act, which allowed the president to
cancel certain tax and spending benefits after they
had been signed into law. In 1997 the Court heard a
challenge to the act, Raines v. Byrd, but dismissed
the case because, according to the Court, the
members of Congress who brought the suit lacked
standing (see Chapter 2 and the excerpt here). In his
concurring opinion, Justice David Souter expressed
his belief that the day would eventually come when a
party would suffer a sufficient loss of federal funds
to maintain a suit.
That day came the very next term. In Clinton v. City

of New York (1998), the justices found that the
litigants had standing to challenge the Line Item
Veto Act, and the Court decided the case on its
merits. What did the majority decide? Do the justices
make a compelling case for their position?
President Bill Clinton uses new power under the

Line Item Veto Act to cancel two spending provisions
and a special tax break on August 11, 1997. Groups
challenging the law won a Supreme Court ruling
declaring the act unconstitutional.
REUTERS/Rick Wilking
Clinton v. City of New York 524 U.S. 417 (1998)
court/524/417.html

Vote: 6 (Ginsburg, Kennedy, Rehnquist, Souter,

Stevens, Thomas)
3 (Breyer, O’Connor, Scalia)

OPINION CONCURRING IN PART AND
DISSENTING IN PART: Scalia
DISSENTING OPINION: Breyer
Facts:
The Line Item Veto Act stated in part,
[T]he President may, with respect to any bill or

joint resolution that has been signed into law
pursuant to Article I, section 7, of the Constitution
of the United States, cancel in whole—(1) any
dollar amount of discretionary budget authority;
(2) any item of new direct spending; or (3) any
limited tax benefit; if the President—
1. determines that such cancellation will—(i)

reduce the Federal budget deficit; (ii) not
impair any essential Government functions;
and (iii) not harm the national interest; and
2. notifies the Congress of such cancellation by
transmitting a special message . . . within five
calendar days (excluding Sundays) after the
enactment of the law [to which the
cancellation applies].
The act contained two other important provisions.

First, although it gave the president the power to
rescind various expenditures, it established a
check on his ability to do so. Congress could
consider “disapproval bills,” which would render
the president’s cancellation “null and void.” In
other words, Congress could restore presidential
cuts, but new congressional legislation would be
subject to a presidential veto. Second, the act
stated, “Any Member of Congress or any individual
adversely affected by [this act] may bring an
action, in the United States District Court for the
District of Columbia, for declaratory judgment and
injunctive relief on the ground that any provision
of this part violates the Constitution.”
On January 2, 1997, just one day after the act

went into effect, six members of Congress who
had voted against it brought suit in federal court
against Secretary of the Treasury Robert E. Rubin
and Franklin D. Raines, director of the Office of
Management and Budget. The suit claimed that
the act violated Article I of the Constitution
because it “unconstitutionally expands the
President’s power” and “violates the requirements
of bicameral passage and presentment by granting
to the President, acting alone, the authority to
‘cancel’ and thus repeal provisions of federal law.”
The appellees further asserted that the act injured
them “directly and concretely . . . in their official
capacities” by (1) altering the legal and practical
effect of all votes they may cast on bills containing
such separately vetoable items, (2) divesting them
of their constitutional role in the repeal of
legislation, and (3) altering the constitutional
balance of powers between the legislative and
executive branches.
Attorneys for the executive branch officials argued

that the legislators lacked standing to sue and that
their claim was not ripe, meaning that the
president had not yet used the new veto authority.
The lower court agreed with the members of
Congress, and the executive branch officials
appealed to the U.S. Supreme Court. Because the
act directed the Court to hear as soon as possible
any suit challenging its constitutionality, the
justices established an expedited briefing
schedule. They heard oral argument in Raines v.
Byrd on May 27, 1997, a little more than a month
after the lower court’s decision.
But, as you know from the discussion in Chapter 2,

the Court dismissed the case. Writing for the
majority, Chief Justice William H. Rehnquist held
that the suit was not a real case or controversy
because members of Congress were “not the
right” litigants. After the Court’s decision,
President Clinton invoked the line-item veto to
cancel more than eighty items, including a
provision of the Balanced Budget Act of 1997 that
provided money for New York City hospitals and a
section of the Taxpayer Relief Act of 1997 that
gave a tax break to potato growers in Idaho. The
affected parties immediately challenged these
steps. Those in the first case were the City of New
York, two hospital associations, one hospital, and
two unions representing health care employees.
The parties in the second were a farmers’
cooperative and one of its members.
A federal district court consolidated the cases,

determined that at least one of the plaintiffs in
each case had standing under Article III, and ruled
that the Line Item Veto Act violated the
presentment clause (Article I, Section 7, Clause 2).
It also held that the law was an unconstitutional
delegation of legislative powers to the president—
an argument lawyers opposed to the line-item veto
made before the Supreme Court. A majority on the
Court thought it “unnecessary” to address this
claim, but at least one of the justices, Kennedy in
concurrence, seemed sympathetic. For this
reason, we examine this aspect of Clinton, along
with Kennedy’s concurrence, in Chapter 5 when
we discuss the nondelegation doctrine.
Arguments:
For the appellants, William J. Clinton et
al.:
The Line Item Veto Act does not violate the

presentment clause because the veto occurs
after all the procedures in the presentment
clause have been satisfied. Its title
notwithstanding, the act does not authorize the
president to sign into law some provisions of a
tax or spending bill while “returning” other
provisions to Congress. The president remains
subject to the constitutional obligation to sign
or return, in its entirety, a bill presented to him
by Congress. His cancellation authority under
the act comes into existence only after a tax or
spending bill has been passed by both houses
of Congress and approved, in toto, by the
president.
The scope of authority vested in the president
by the act is consistent both with historical
practice and with this Court’s decisions. Since
1789 Congress frequently has given the
president discretion over the expenditure of
appropriated funds. The Line Item Veto Act
provides constitutionally sufficient limits on the
president’s exercise of discretion over federal
spending. The act requires the president to
cancel items “in whole” rather than in part and
to devote any canceled amounts to deficit
reduction, and it provides meaningful guidance
to the president in his decision whether
particular items should be canceled.
Congress can specify that certain bills not be
subject to cancellation, and the fact that it
failed to do so in this case must be construed
to be congressional intent to offer cancellation
as an option to the executive.
For the appellees, City of New

York et al.:31
31 As we noted earlier, they also argued that the
act violated the nondelegation doctrine: The
“fundamental precept . . . is that the lawmaking
function belongs to Congress . . . and may not be
conveyed to another branch.” The act violates that
precept. The act allows the president the power to
shape the law itself, which is a legislative power.
The act also fails to provide an “intelligible
principle” that would make delegation acceptable
under the Court’s delegation doctrine.
The procedure set forth in Article I requires that

every bill adding, amending, or repealing any
provision of federal law be passed in the same
form by both houses of Congress and
presented to the president, who must sign,
veto, or take no action with respect to each bill
“in toto.” These requirements were carefully
designed to assure that federal laws have the
consent of the people as expressed through
their elected representatives.
The presentment clause requires the president
to act on the bill as a whole to protect the
principle of bicameralism and to limit the
president’s power in the lawmaking process.
Historically, this requirement has been clear
since the first presidency, as found in
Washington’s writings.
Although cancellation occurs after the
procedures prescribed in the presentment
clause, the act is merely an attempt to
accomplish indirectly what the Constitution
prohibits accomplishing directly.

Court.
Less than two months after our decision in

[Raines], the President exercised his authority to
cancel one provision in the Balanced Budget Act of
1997 and two provisions in the Taxpayer Relief Act
of 1997. Appellees, claiming that they had been
injured by two of those cancellations, filed these
cases in the District Court. That Court again held
the statute invalid and we again expedited our
review. We now hold that these appellees have
standing to challenge the constitutionality of the
Act, and, reaching the merits, we agree that the
cancellation procedures set forth in the Act violate
the Presentment Clause, Art. I, Sec. 7, cl. 2, of the
Constitution. . . .
In both legal and practical effect, the President
has amended two Acts of Congress by repealing a
portion of each. “[R]epeal of statutes, no less than
enactment, must conform with Art. I.” INS v.
Chadha (1983). There is no provision in the
Constitution that authorizes the President to
enact, to amend, or to repeal statutes. Both Article
I and Article II assign responsibilities to the
President that directly relate to the lawmaking
process, but neither addresses the issue presented
by these cases. The President “shall from time to
time give to the Congress Information on the State
of the Union, and recommend to their
Consideration such Measures as he shall judge
necessary and expedient. . . .” Art. II, Sec. 3. Thus,
he may initiate and influence legislative proposals.
Moreover, after a bill has passed both Houses of
Congress, but “before it become[s] a Law,” it must
be presented to the President. If he approves it,
“he shall sign it, but if not he shall return it, with
his Objections to that House in which it shall have
originated, who shall enter the Objections at large
on their Journal, and proceed to reconsider it.”
Art. I, Sec. 7, cl. 2. His “return” of a bill, which is
usually described as a “veto,” is subject to being
overridden by a two-thirds vote in each House.
There are important differences between the

President’s “return” of a bill pursuant to Article I,
Sec. 7, and the exercise of the President’s
cancellation authority pursuant to the Line Item
Veto Act. The constitutional return takes place
before the bill becomes law; the statutory
cancellation occurs after the bill becomes law. The
constitutional return is of the entire bill; the
statutory cancellation is of only a part. Although
the Constitution expressly authorizes the
President to play a role in the process of enacting
statutes, it is silent on the subject of unilateral
Presidential action that either repeals or amends
parts of duly enacted statutes.
There are powerful reasons for construing

constitutional silence on this profoundly important
issue as equivalent to an express prohibition. The
procedures governing the enactment of statutes
set forth in the text of Article I were the product of
the great debates and compromises that produced
the Constitution itself. Familiar historical
materials provide abundant support for the
conclusion that the power to enact statutes may
only “be exercised in accord with a single, finely
wrought and exhaustively considered, procedure.”
Our first President understood the text of the
Presentment Clause as requiring that he either
“approve all the parts of a Bill, or reject it in toto.”
What has emerged in these cases from the
President’s exercise of his statutory cancellation
powers, however, are truncated versions of two
bills that passed both Houses of Congress. They
are not the product of the “finely wrought”
procedure that the Framers designed. . . .
. . . [O]ur decision rests on the narrow ground that

the procedures authorized by the Line Item Veto
Act are not authorized by the Constitution. The
Balanced Budget Act of 1997 is a 500-page
document that became “Public Law 105–33” after
three procedural steps were taken: (1) a bill
containing its exact text was approved by a
majority of the Members of the House of
Representatives; (2) the Senate approved
precisely the same text; and (3) that text was
signed into law by the President. The Constitution
explicitly requires that each of those three steps
be taken before a bill may “become a law.” Art. I,
Sec. 7. If one paragraph of that text had been
omitted at any one of those three stages, Public
Law 105–33 would not have been validly enacted.
If the Line Item Veto Act were valid, it would
authorize the President to create a different law—
one whose text was not voted on by either House
of Congress or presented to the President for
signature. Something that might be known as
“Public Law 105–33 as modified by the President”
may or may not be desirable, but it is surely not a
document that may “become a law” pursuant to
the procedures designed by the Framers of Article
I, Sec. 7, of the Constitution.
If there is to be a new procedure in which the

President will play a different role in determining
the final text of what may “become a law,” such
change must come not by legislation, but through
the amendment procedures set forth in Article V
of the Constitution. Cf. U.S. Term Limits, Inc. v.
Thornton (1995).
The judgment of the District Court is
Affirmed.
JUSTICE SCALIA, with whom
JUSTICE O’CONNOR joins, and
with whom JUSTICE BREYER
joins [in part], concurring in
part and dissenting in part.
Insofar as the degree of political, “lawmaking”
power conferred upon the Executive is concerned,
there is not a dime’s worth of difference between
Congress’ authorizing the President to cancel a
spending item, and Congress’ authorizing money
to be spent on a particular item at the President’s
discretion. And the latter has been done since the
Founding of the Nation. From 1789–1791, the
First Congress made lump-sum appropriations for
the entire Government—“sum[s] not exceeding”
specified amounts for broad purposes. From a
very early date, Congress also made permissive
individual appropriations, leaving the decision
whether to spend the money to the President’s
unfettered discretion. . . .
The short of the matter is this: had the Line Item

Veto Act authorized the President to “decline to
spend” any item of spending contained in the
Balanced Budget Act of 1997, there is not the
slightest doubt that authorization would have been
constitutional. What the Line Item Veto Act does
instead—authorizing the President to “cancel” an
item of spending—is technically different. But the
technical difference does not relate to the
technicalities of the Presentment Clause, which
have been fully complied with; and the doctrine of
unconstitutional delegation, which is at issue here,
is preeminently not a doctrine of technicalities.
The title of the Line Item Veto Act, which was
perhaps designed to simplify for public
comprehension, or perhaps merely to comply with
the terms of a campaign pledge, has succeeded in
faking out the Supreme Court. The President’s
action it authorizes in fact is not a line-item veto,
and thus does not offend Art. I, Sec. 7; and, insofar
as the substance of that action is concerned, it is
no different from what Congress has permitted the
President to do since the formation of the Union.

JUSTICE O’CONNOR and
JUSTICE SCALIA join [in part],
dissenting.
The Court believes that the Act violates the literal
text of the Constitution. A simple syllogism
captures its basic reasoning:
Major Premise: The Constitution sets forth an

exclusive method for enacting, repealing, or
amending laws.
Minor Premise: The Act authorizes the
President to “repea[l] or amen[d]” laws in a
different way, namely by announcing a
cancellation of a portion of a previously
enacted law.
Conclusion: The Act is inconsistent with the
Constitution.
I find this syllogism unconvincing, however,

because its Minor Premise is faulty. When the
President “canceled” the two appropriation
measures now before us, he did not repeal any law
nor did he amend any law. He simply followed the
law, leaving the statutes, as they are literally
written, intact . . . .
I recognize that the Act before us is novel. In a

sense, it skirts a constitutional edge. But that edge
has to do with means, not ends. The means chosen
do not amount literally to the enactment, repeal,
or amendment of a law. Nor, for that matter, do
they amount literally to the “line item veto” that
the Act’s title announces. Those means do not
violate any basic Separation of Powers principle.
They do not improperly shift the constitutionally
foreseen balance of power from Congress to the
President. Nor, since they comply with Separation
of Powers principles, do they threaten the liberties
of individual citizens. They represent an
experiment that may, or may not, help
representative government work better. The
Constitution, in my view, authorizes Congress and
the President to try novel methods in this way.
Consequently, with respect, I dissent.
When the opinion was announced, President Clinton

said, “I am deeply disappointed with today’s
Supreme Court decision striking down the line-item
veto. The decision is a defeat for all Americans—it
deprives the President of a valuable tool for
eliminating waste in the Federal budget and for
enlivening the public debate over how to make the
best use of public funds.” Given the views of the six-
person majority, however, it is unlikely that the Court
will reverse itself any time in the near future.
The Power of Appointment

For presidents to carry out the executive duties of
the government effectively, they must be able to staff
the various federal departments and offices with
administrators who share their views and in whom
they have confidence. This duty implies the power to
appoint and the power to remove. The Constitution
offers guidelines on the president’s appointment
power, but it is silent on the removal power.
Principal versus Inferior Officers.

Article II, Section 2, contains what is known as the
appointments clause. It specifies the president’s
authority to appoint major administrative and
judicial officials, but it also allows Congress to
allocate that authority to other bodies for minor
administrative positions:
[The president] shall nominate, and by and with

the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose
Appointments are not herein otherwise provided
for, and which shall be established by Law: but
the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper, in
the President alone, in the Courts of Law, or in
the Heads of Departments.
Article II, Section 2 concludes with what is known as

the recess appointments clause:
The President shall have Power to fill up all

Vacancies that may happen during the Recess of
the Senate, by granting Commissions which shall
expire at the End of their next Session.
Although these clauses seem detailed and specific

enough, they have raised important constitutional
questions. Let us consider two, one from each
clause.
The first stems from a line that the appointments

clause draws between major (or principal) officers
and inferior offices. Principal positions, according to
the appointments clause, must be filled by
presidential nomination and Senate confirmation,
but selections of personnel to fill inferior positions
may be made by some other means as determined by
Congress.32 The question becomes how to
distinguish between the two.
32 We focus on the distinction between principal and

inferior officers. A separate line of cases has
considered the difference between officers (whether
principal or inferior) and “mere employees”—that is,
employees who are not subject to the Appointments
Clause. In several cases, the Court established that
to qualify as an officer, rather than an employee, an
individual (1) “must occupy a ‘continuing’ position
established by law, and (2) must “exercis[e]
significant authority pursuant to the laws of the
United States.” See, for example, Freytag v.
Commissioner (1991) and, more recently, Lucia v.
Securities and Exchange Commission (2018).
This is an important question because from time to

time Congress establishes government positions
that, for various reasons, are to be filled by an
appointing authority other than the president. And
on occasion, someone objects to the procedure on
the ground that the position is too important for
anyone other than the president to fill. Courts then
must determine whether the official holds a principal
position as an officer of the United States or is an
inferior official.33 If it is the former, then the
president must make the appointment with the
advice and consent of the Senate; if the latter, the
power may be vested in the “President alone, in the
Courts of Law, or in the Heads of Departments.”
33 See also Buckley v. Valeo (1976) for other

questions relating to the appointment power. In this
case, the justices heard a challenge to the
constitutionality of the 1974 amendments to the
Federal Election Campaign Act, which created the
Federal Election Commission (FEC). The FEC was to
enforce the law, conduct civil litigation, issue
advisory opinions, and maintain records, among
other responsibilities. Because of the Watergate
scandal, Congress did not want the president alone
to appoint the commission’s eight members. Instead,
the secretary of the Senate and the clerk of the
House were ex officio members without the right to
vote, and the president pro tempore of the Senate,
the Speaker of the House, and the president each
appointed two members, one Democrat and one
Republican. Both houses of Congress had to confirm
the six voting members.
This arrangement was challenged as a violation of

the appointments clause: these officials had to be
appointed either by the president with the advice
and consent of the Senate or by “the President
alone,” the “Courts of Law,” or the “Heads of
Departments.” Because four of the six
commissioners were to be appointed by Congress—
without any voice in their selection by the president,
the courts, or any department head—challengers
contended that the procedures violated the
appointments clause. The Supreme Court partially
agreed. With regard to the FEC’s investigative
powers, the Court had no problem with the
arrangement because investigative powers fall “in
the same general category as those powers Congress
might delegate to one of its own committees.” But, in
terms of the FEC’s enforcement and other
discretionary powers, the Court agreed with the
challengers and invalidated the appointment
procedures on the ground that those other powers
do not operate “merely in the aid of congressional
authority to legislate.”
In Morrison v. Olson (1988), involving the creation of

the Office of Independent Counsel, the Court
attempted to delineate the difference between
“inferior” and “principal” officers. Given the kinds of
cases independent counsels are appointed to
investigate, are you convinced by the Court’s
analysis that this official is an “inferior officer” under
the meaning of the appointments clause? Or is the
Court taking a pragmatic approach, recognizing that
it could cause problems for the president to appoint
an official prosecuting crime and corruption in his
branch?
Note too that the question of whether the

independent counsel is a principal officer or an
inferior officer is not the only one that Morrison
addressed. The Court also considered the rather
unique system of appointing the independent
counsel—one that involved federal judges. The
appointments clause allows others to appoint
inferior officers, including to “the Courts of Law.”
But, even assuming the independent counsel is an
inferior officer, does the clause allow judges to
appoint members of another branch, such as the
executive branch? In more general terms, does the
appointments clause permit interbranch
appointments?
Writing for the majority, Chief Justice Rehnquist held
not only that the independent counsel is an inferior
officer but also that the interbranch appointment
procedure is constitutional. These conclusions put
him at odds with his fellow conservative, Justice
Scalia. In dissent, Scalia accused the majority of
violating both the letter and the spirit of the
separation of powers doctrine by depriving the
president of all the executive powers vested in the
office by the Constitution. This argument follows
from a theory called the unitary executive, which
claims to find support in the vesting clause of Article
II: “The executive power shall be vested in a
President of the United States of America.” This
language, according to proponents, implies that only
the president is vested with the authority to carry
out the laws in the executive branch, so only the
president can appoint and remove officers exercising
executive powers, including the special prosecutor.
In Morrison v. Olson (1988), the Supreme Court

rejected Assistant Attorney General Theodore
Olson’s constitutional challenge to the special
prosecutor provisions of the Ethics in Government
Act. In 2000 Olson served as George W. Bush’s
attorney in Bush v. Gore, and he subsequently
became U.S. solicitor general in the Bush
administration.
AP Photo/Charles Dharapak
Morrison v. Olson 487 U.S. 654 (1988)
court/487/654.html

Vote: 7 (Blackmun, Brennan, Marshall, O’Connor,

Rehnquist, Stevens, White)
1 (Scalia)

DISSENTING OPINION: Scalia
NOT PARTICIPATING: Kennedy
Facts:
During the Watergate scandal of the 1970s,
existing laws allowed the attorney general to
appoint a special prosecutor (today called a
special counsel) to investigate alleged wrongdoing
in the executive branch. Because of the problems
encountered by the special prosecutor (detailed
later in this chapter, in Nixon v. United States),
Congress included a provision in the Ethics in
Government Act of 1978 establishing the Office of
Independent Counsel to investigate and, when
necessary, to prosecute high-ranking officials of
the government for violations of federal criminal
laws. In other words, the independent counsel had
much the same function as the special prosecutor
of the 1970s but the method of selection was to be
much different. Rather than leave the appointment
in the executive branch (with the attorney
general), the independent counsel was to be
chosen by a group of three federal judges, who
would be appointed by the chief justice for two
years and be known as the special division. The
selection of independent counsels and the
description of each counsel’s jurisdiction would be
the special division’s only functions. It would carry
out these responsibilities only after a preliminary
investigation by the attorney general indicated
that an independent counsel was necessary.
Once appointed, the independent counsel could

exercise all the powers of the Justice Department.
A counsel appointed under the act could be
removed by the attorney general, but only for
cause or disabilities that would substantially
impair the counsel from completing the required
duties. The federal district court could review
such dismissals. The independent counsel’s tenure
otherwise would end when he or she declared the
work to be completed or the special division
concluded that the independent counsel’s
assigned tasks were accomplished.
In 1982 two House subcommittees investigated

the activities of the Environmental Protection
Agency and the Land and Natural Resources
Division of the Justice Department. During that
investigation the subcommittees asked the
agencies to produce certain documents. A
controversy flared up over whether the legislature
could demand these documents from the executive
branch, a dispute that was settled after contempt
of Congress citations were made and lawsuits
were filed. The following year the House Judiciary
Committee began an investigation into the role of
Justice Department officials in these events. Two
years later, in 1985, the committee issued its
report, which indicated that Assistant Attorney
General Theodore B. Olson had provided false and
misleading statements when he testified before
the committee. Two other Justice Department
officials were implicated in obstructing the
committee’s investigation. The committee
requested that the attorney general initiate action
for the appointment of an independent counsel to
pursue these cases.
The special division appointed James McKay as
independent counsel, but he resigned a month
later. The judges then selected Alexia Morrison.
Olson and the other targets of the investigation
refused to cooperate with orders to produce
evidence on the ground that the independent
counsel provision of the Ethics in Government Act
violated, among other clauses, the Constitution’s
appointments clause. As the arguments below
indicate, they claimed that the independent
counsel was not an “inferior officer” and therefore
had to be appointed by the president, not by a
group of three judges. The federal district court
upheld the act, but the court of appeals reversed.
Arguments:
For the appellant, Alexia Morrison,
independent counsel:
Special prosecutors should be categorized as

inferior officers because they are ranked lower
than judges and department heads, are paid
less than the attorney general, and are given
duties for a single task and for a limited time.
The term inferior officer in the appointments
clause should be understood not in a
hierarchical sense, but in a functional sense. It
is irrelevant that the special prosecutor is not
subordinate to another officer.
The appointments clause does not prohibit
cross-branch appointments; in fact, the clause
specifically leaves Congress with discretion
regarding appointments, and the Supreme
Court has previously upheld cross-branch
appointments.
For the appellees, Theodore B.

Olson et al.:
The act that created the Office of Independent
Counsel violates the appointments clause of
Article II because independent counsel are not
inferior officers, who are “subordinates of
heads of the departments.” Because not even
the president can control special prosecutors,
they are principal officers who must be
appointed by the president.
The framers vested executive power in the
president because they envisioned a unitary
executive as the best safeguard against
tyranny. The act violates Article II’s guarantee
that the executive power is vested in one
president required to take care that the laws
are faithfully executed.

of the Court.
This case presents us with a challenge to the

independent counsel provisions of the Ethics in
Government Act of 1978, We hold today that these
provisions of the Act do not violate the
Appointments Clause of the Constitution, or the
limitations of Article III, nor do they impermissibly
interfere with the President’s authority under
Article II in violation of the constitutional principle
of separation of powers. . . .
The initial question is, accordingly, whether

appellant is an “inferior” or a “principal” officer. If
she is the latter, as the Court of Appeals
concluded, then the Act is in violation of the
Appointments Clause.
The line between “inferior” and “principal”

officers is one that is far from clear, and the
Framers provided little guidance into where it
should be drawn. . . . We need not attempt here to
decide exactly where the line falls between the
two types of officers, because in our view
appellant clearly falls on the “inferior officer” side
of that line. Several factors lead to this conclusion.
First, appellant is subject to removal by a higher

Executive Branch official. Although appellant may
not be “subordinate” to the Attorney General (and
the President) insofar as she possesses a degree of
independent discretion to exercise the powers
delegated to her under the Act, the fact that she
can be removed by the Attorney General indicates
that she is to some degree “inferior” in rank and
authority. Second, appellant is empowered by the
Act to perform only certain, limited duties. An
independent counsel’s role is restricted primarily
to investigation and, if appropriate, prosecution
for certain federal crimes. Admittedly, the Act
delegates to appellant “full power and
independent authority to exercise all investigative
and prosecutorial functions and powers of the
Department of Justice,” but this grant of authority
does not include any authority to formulate policy
for the Government or the Executive Branch, nor
does it give appellant any administrative duties
outside of those necessary to operate her office.
The Act specifically provides that in policy matters
appellant is to comply to the extent possible with
the policies of the Department.
Third, appellant’s office is limited in jurisdiction.

Not only is the Act itself restricted in applicability
to certain federal officials suspected of certain
serious federal crimes, but an independent
counsel can only act within the scope of the
jurisdiction that has been granted by the Special
Division pursuant to a request by the Attorney
General. Finally, appellant’s office is limited in
tenure. There is concededly no time limit on the
appointment of a particular counsel. Nonetheless,
the office of independent counsel is “temporary”
in the sense that an independent counsel is
appointed essentially to accomplish a single task,
and when that task is over the office is terminated,
either by the counsel herself or by action of the
Special Division. Unlike other prosecutors,
appellant has no ongoing responsibilities that
extend beyond the accomplishment of the mission
that she was appointed for and authorized by the
Special Division to undertake. In our view, these
factors relating to the “ideas of tenure, duration . .
. and duties” of the independent counsel are
sufficient to establish that appellant is an
“inferior” officer in the constitutional sense. . . .
This does not, however, end our inquiry under the

Appointments Clause. Appellees argue that even if
appellant is an “inferior” officer, the Clause does
not empower Congress to place the power to
appoint such an officer outside the Executive
Branch. They contend that the Clause does not
contemplate congressional authorization of
“interbranch appointments,” in which an officer of
one branch is appointed by officers of another
branch. The relevant language of the
Appointments Clause is worth repeating. It reads:
“ . . . but the Congress may by Law vest the
Appointment of such inferior Officers, as they
think proper, in the President alone, in the courts
of Law, or in the Heads of Departments.” On its
face, the language of this “excepting clause”
admits of no limitation on interbranch
appointments. Indeed, the inclusion of “as they
think proper” seems clearly to give Congress
significant discretion to determine whether it is
“proper” to vest the appointment of, for example,
executive officials in the “courts of Law.” . . .
We also note that the history of the clause

provides no support for appellees’ position.
Throughout most of the process of drafting the
[appointments clause], the Convention
concentrated on the problem of who should have
the authority to appoint judges . . . [T]here was
little or no debate on the question of whether the
Clause empowers Congress to provide for
interbranch appointments, and there is nothing to
suggest that the Framers intended to prevent
Congress from having that power.
We do not mean to say that Congress’ power to

provide for interbranch appointments of “inferior
officers” is unlimited. In addition to separation of
powers concerns, which would arise if such
provisions for appointment had the potential to
impair the constitutional functions assigned to one
of the branches, . . . congress’ decision to vest the
appointment power in the courts would be
improper if there was some “incongruity” between
the functions normally performed by the courts
and the performance of their duty to appoint. In
this case, however, we do not think it
impermissible for Congress to vest the power to
appoint independent counsels in a specially
created federal court. We thus disagree with the
Court of Appeals’ conclusion that there is an
inherent incongruity about a court having the
power to appoint prosecutorial officers. . . .
Congress of course was concerned when it created
the office of independent counsel with the
conflicts of interest that could arise in situations
when the Executive Branch is called upon to
investigate its own high-ranking officers. If it were
to remove the appointing authority from the
Executive Branch, the most logical place to put it
was in the Judicial Branch. In the light of the Act’s
provision making the judges of the Special
Division ineligible to participate in any matters
relating to an independent counsel they have
appointed, . . . we do not think that appointment of
the independent counsels by the court runs afoul
of the constitutional limitation on “incongruous”
interbranch appointments.
Appellees next contend that the powers vested in

the Special Division by the Act conflict with Article
III of the Constitution. We have long recognized
that by the express provision of Article III, the
judicial power of the United States is limited to
“Cases” and “Controversies.” As a general rule,
we have broadly stated that “executive or
administrative duties of a nonjudicial nature may
not be imposed on judges holding office under Art.
III of the Constitution.” The purpose of this
limitation is to help ensure the independence of
the Judicial Branch and to prevent the judiciary
from encroaching into areas reserved for the other
branches. . . .
[But] once it is accepted that the Appointments

Clause gives Congress the power to vest the
appointment of officials such as the independent
counsel in the “courts of Law,” there can be no
Article III objection to the Special Division’s
exercise of that power, as the power itself derives
from the Appointments Clause, a source of
authority for judicial action that is independent of
Article III. . . .
We now turn to consider whether the Act is invalid

under the constitutional principle of separation of
powers. Two related issues must be addressed:
the first is whether the provision of the Act
restricting the Attorney General’s power to
remove the independent counsel to only those
instances in which he can show “good cause,”
taken by itself, impermissibly interferes with the
President’s exercise of his constitutionally
appointed functions. The second is whether, taken
as a whole, the Act violates the separation of
powers by reducing the President’s ability to
control the prosecutorial powers wielded by the
independent counsel. . . .
We cannot say that the imposition of a “good

cause” standard for removal by itself unduly
trammels on executive authority. There is no real
dispute that the functions performed by the
independent counsel are “executive” in the sense
that they are law enforcement functions that
typically have been undertaken by officials within
the Executive Branch. As we noted above,
however, the independent counsel is an inferior
officer under the Appointments Clause, with
limited jurisdiction and tenure and lacking
policymaking or significant administrative
authority . . . [W]e simply do not see how the
President’s need to control the exercise of that
discretion is so central to the functioning of the
Executive Branch as to require as a matter of
constitutional law that the counsel be terminable
at will by the President.
[Moreover,] this is not a case in which the power

to remove an executive official has been
completely stripped from the President, thus
providing no means for the President to ensure
the “faithful execution” of the laws. Rather,
because the independent counsel may be
terminated for “good cause,” the Executive,
through the Attorney General, retains ample
authority to assure that the counsel is competently
performing his or her statutory responsibilities in
a manner that comports with the provisions of the
Act . . .
The final question to be addressed is whether the

Act, taken as a whole, violates the principle of
separation of powers by unduly interfering with
the role of the Executive Branch. . . .
We observe that this case does not involve an

attempt by Congress to increase its own powers at
the expense of the Executive Branch. Indeed, with
the exception of the power of impeachment—
which applies to all officers of the United States—
Congress retained for itself no powers of control
or supervision over an independent counsel. . . .
We [also] do not think that the Act “impermissibly

undermine[s]” the powers of the Executive
Branch, or disrupts the proper balance between
the coordinate branches [by] prevent[ing] the
Executive Branch from accomplishing its
constitutionally assigned functions. It is
undeniable that the Act reduces the amount of
control or supervision that the Attorney General
and, through him, the President exercises over the
investigation and prosecution of a certain class of
alleged criminal activity . . . Nonetheless, the Act
does give the Attorney General several means of
supervising or controlling the prosecutorial
powers that may be wielded by an independent
counsel. Most importantly, the Attorney General
retains the power to remove the counsel for “good
cause,” a power that we have already concluded
provides the Executive with substantial ability to
ensure that the laws are “faithfully executed” by
an independent counsel.
In sum, we conclude today that it does not violate

the Appointments Clause for Congress to vest the
appointment of independent counsel in the Special
Division; that the powers exercised by the Special
Division under the Act do not violate Article III;
and that the Act does not violate the separation of
powers principle by impermissibly interfering with
the functions of the Executive Branch. The
decision of the Court of Appeals is therefore
Reversed.
JUSTICE SCALIA, dissenting.

Article II, §1, cl. 1, of the Constitution provides:
“The executive Power shall be vested in a

President of the United States.” . . . [T]his does
not mean some of the executive power, but all of
the executive power. It seems to me, therefore,
that the decision of the Court of Appeals
invalidating the present statute must be upheld on
fundamental separation-of-powers principles if the
following two questions are answered
affirmatively: (1) Is the conduct of a criminal
prosecution (and of an investigation to decide
whether to prosecute) the exercise of purely
executive power? (2) Does the statute deprive the
President of the United States of exclusive control
over the exercise of that power? Surprising to say,
the Court appears to concede an affirmative
answer to both questions, but seeks to avoid the
inevitable conclusion that since the statute vests
some purely executive power in a person who is
not the President of the United States it is void.
The Court concedes that “[t]here is no real dispute

that the functions performed by the independent
counsel are ‘executive,’.”. . . . She is vested with
the “full power and independent authority to
exercise all investigative and prosecutorial
functions and powers of the Department of Justice
[and] the Attorney General.” Governmental
investigation and prosecution of crimes is a
quintessentially executive function. See United
States v. Nixon (1974).
As for the second question, whether the statute

before us deprives the President of exclusive
control over that quintessentially executive
activity: the Court does not, and could not
possibly, assert that it does not. That is indeed the
whole object of the statute. Instead, the Court
points out that the President, through his Attorney
General, has at least some control. That
concession is alone enough to invalidate the
statute, but I cannot refrain from pointing out that
the Court greatly exaggerates the extent of that
“some” Presidential control. “Most importan[t]”
among these controls, the Court asserts, is the
Attorney General’s “power to remove the counsel
for ‘good cause.’” This is somewhat like referring
to shackles as an effective means of locomotion. . .
.
. . . It effects a revolution in our constitutional

jurisprudence for the Court, once it has
determined that (1) purely executive functions are
at issue here, and (2) those functions have been
given to a person whose actions are not fully
within the supervision and control of the
President, nonetheless to proceed further to sit in
judgment of whether “the President’s need to
control the exercise of [the independent counsel’s]
discretion is so central to the functioning of the
Executive Branch” as to require complete control .
. . and whether “the Act give[s] the Executive
Branch sufficient control over the independent
counsel to ensure that the President is able to
perform his constitutionally assigned duties.” It is
not for us to determine, and we have never
presumed to determine, how much of the purely
executive powers of government must be within
the full control of the President. The Constitution
prescribes that they all are. . . .
Is it unthinkable that the President should have

such exclusive power, even when alleged crimes
by him or his close associates are at issue? No
more so than that Congress should have the
exclusive power of legislation, even when what is
at issue is its own exemption from the burdens of
certain laws. See Civil Rights Act of 1964, Title VII
. . . (prohibiting “employers,” not defined to
include the United States, from discriminating on
the basis of race, color, religion, sex, or national
origin). No more so than that this Court should
have the exclusive power to pronounce the final
decision on justiciable cases and controversies,
even those pertaining to the constitutionality of a
statute reducing the salaries of the Justices. See
United States v. Will (1980). A system of separate
and coordinate powers necessarily involves an
acceptance of exclusive power that can
theoretically be abused. . . . While the separation
of powers may prevent us from righting every
wrong, it does so in order to ensure that we do not
lose liberty. The checks against any branch’s
abuse of its exclusive powers are twofold: First,
retaliation by one of the other branch’s use of its
exclusive powers: Congress, for example, can
impeach the executive who willfully fails to
enforce the laws; the executive can decline to
prosecute under unconstitutional statutes; and the
courts can dismiss malicious prosecutions.
Second, and ultimately, there is the political check
that the people will replace those in the political
branches who are guilty of abuse. Political
pressures produced special prosecutors—for
Teapot Dome and for Watergate, for example—
long before this statute created the independent
counsel.
. . . What are the standards to determine how the

balance is to be struck, that is, how much removal
of Presidential power is too much? . . . Once we
depart from the text of the Constitution, just
where short of that do we stop? The most amazing
feature of the Court’s opinion is that it does not
even purport to give an answer. It simply
announces, with no analysis, that the ability to
control the decision whether to investigate and
prosecute the President’s closest advisers, and
indeed the President himself, is not “so central to
the functioning of the Executive Branch” as to be
constitutionally required to be within the
President’s control. Apparently that is so because
we say it is so. Having abandoned as the basis for
our decisionmaking the text of Article II that “the
executive Power” must be vested in the President,
the Court does not even attempt to craft a
substitute criterion— . . . however remote from
the Constitution—that today governs, and in the
future will govern, the decision of such questions.
Evidently, the governing standard is to be what
might be called the unfettered wisdom of a
majority of this Court, revealed to an obedient
people on a case-by-case basis. This is not only not
the government of laws that the Constitution
established; it is not a government of laws at all. .
..
The independent counsel statute upheld in Morrison
v. Olson expired at the end of 1992. It was not
reenacted because of partisan differences over an
investigation into the Iran–Contra affair, a
controversy involving members of the Reagan
administration who allegedly offered to trade arms
for the return of Americans held hostage in Lebanon.
The independent counsel, Lawrence E. Walsh,
aggressively pursued the case, but he was regarded
by Republicans as excessively partisan. In addition,
investigations such as that headed by Walsh had no
effective spending limitations and had become
unreasonably expensive. President George H. W.
Bush, a Republican, threatened to veto
reauthorization legislation.
In June 1994, however, a new independent counsel

statute became law. The act received bipartisan
support in Congress and was endorsed by President
Clinton, the first chief executive to back independent
counsel legislation. The new law imposed procedures
modeled on the earlier statute: following the Justice
Department’s preliminary investigation into alleged
wrongdoing by top administration officials, the
attorney general was to petition a special three-
judge federal court to appoint an independent
counsel to pursue the matter. The law was invoked
almost immediately to appoint Kenneth Starr to
continue the investigation of Clinton’s involvement
in the Whitewater real estate business, which
eventually led to his impeachment by the House in
1998.
The revised law received even more criticism than
the earlier version. The independent counsel’s open-
ended term of office, barely constrained use of
prosecutorial power, and expensive operation
doomed the prospects for renewing the statute yet
again without significant reform. And the legislation
expired without reauthorization in 1999.
But neither Olson, the appellee in the case, nor

independent counsel disappeared from the scene.
Olson went on to serve as solicitor general of the
United States from June 2001 to July 2004 (see Box
4-2). As for independent counsel, they continue in
the form of “special counsel” (the pre-1978 version
of special prosecutors). Although they are now
appointed by the attorney general (or by the acting
attorney general if the attorney general is recused)—
and not by a special division of judges—their
function is the same: to take charge of criminal
investigations in which the Department of Justice
may have a “conflict of interest” or in other
“extraordinary circumstances” where it “would be in
the public interest to appoint an outside Special
Counsel.”34 As for the removal of the special
counsel, federal law provides a role only for the
attorney general: “The Attorney General may remove
a Special Counsel for misconduct, dereliction of duty,
incapacity, conflict of interest, or for other good
cause, including violation of Departmental policies.”
Using Scalia’s logic in Morrison, though, would it be
possible for the president to claim that he too could
remove the special counsel? When Nixon’s attorney
general and deputy attorney general refused to
follow the president’s instruction to fire the
Watergate special prosecutor, he discharged both
and turned to the third in command, who carried out
the president’s order.
34 See 28 CFR 600.1 - Grounds for appointing a

Special Counsel.
You will soon have an opportunity to evaluate the

legal issues surrounding the Watergate scandal. For
now keep in mind that Morrison remains an
important standard for determining whether an
officer is an inferior officer. But it is not the only one.
Less than a decade after Morrison, Justice Scalia
attempted to devise a new approach in his majority
opinion in Edmond v. United States (1997). After
contending that “Morrison did not purport to set
forth a definitive test for whether an office is
‘inferior’ under the Appointments Clause,” he wrote,
Generally speaking, the term “inferior officer”

connotes a relationship with some higher
ranking officer or officers below the President:
whether one is an “inferior” officer depends on
whether he has a superior. It is not enough that
other officers may be identified who formally
maintain a higher rank, or possess
responsibilities of a greater magnitude. If that
were the intention, the Constitution might have
used the phrase “lesser officer.” Rather, in the
context of a clause designed to preserve political
accountability relative to important government
assignments, we think it evident that “inferior
officers” are officers whose work is directed and
supervised at some level by others who were
appointed by presidential nomination with the
advice and consent of the Senate.
Even though Scalia’s approach is more general than

Rehnquist’s, Edmond did not overrule Morrison and
so today both approaches coexist. Had he applied his
Edmond definition of “inferior” to the special
prosecutor, do you think Scalia would have reached
a different conclusion in Morrison? Why or why not?
Recess Appointments.
In addition to outlining appointment procedures,
Article II, Section 2, allows the president “to fill up
all Vacancies that may happen during the Recess of
the Senate,” with the proviso that these
appointments expire at the end of the next session.
Why would the framers allow presidents to make
these temporary “recess appointments”? Alexander
Hamilton suggested a reason in Federalist No. 67:
[A]s it would have been improper to oblige [the

Senate] to be continually in session for the
appointment of officers, and as vacancies might
happen in their recess, which it might be
necessary for the public service to fill without
delay, the . . . clause is evidently intended to
authorize the President, singly, to make
temporary appointments.
Keeping the government running at full capacity was

of particular concern during the nineteenth century.
Back then, the Senate’s sessions were short and its
recesses long. In some years, it was in session for
less than half the year.35
35 See Henry B. Hogue, “Recess Appointments:

Frequently Asked Questions,” Congressional
Research Service, March 11, 2015, and Henry B.
Hogue, “Recess Appointments Made by President
Barack Obama,” Congressional Research Service,
September 7, 2017. See also Appendix A to Justice
Breyer’s opinion in Noel Canning. It has the dates of
all the intrasession and intersession recesses that
Congress has taken since 1798.
In contemporary times sessions are longer and

recesses shorter but presidents nonetheless continue
to use their recess power. President Clinton made
139 recess appointments; Bush, 171; and Obama,
32.36 Some were intersession appointments,
meaning they came during the recess between the
two formal one-year sessions that each House of
Congress holds. Others came during intrasessions.
(Intrasession breaks occur in the midst of a session
when the Senate or the House announces an
“intrasession recess” by adopting a resolution
stating that it will “adjourn” to a fixed date. That
date could be a few days, weeks, or months away.)
Moreover, it is worth noting, recess appointees have
not just been executive officials but also judges—
including fifteen justices of the Supreme Court (the
last was Potter Stewart in 1958) and nearly thirty
appellate court judges (the last was George W.
Bush’s recess of William Pryor in 2004).37
36 Ibid; to date, Trump has not made a recess

appointment.
37 Scott E. Graves and Robert M. Howard, Justice

Takes a Recess (Plymouth, UK: Lexington Books,
2009).
Why do modern-day presidents make inter- or

intrasession recess appointments? Many would say
that they, like Hamilton, are concerned about
maintaining the administration of government. But
another reason is more political: sidestepping the
Senate. If the president thinks that the Senate might
not confirm his nominee, he can use his recess
power to install the nominee in a position, if only
temporarily. Though he did not say so, perhaps
Hamilton would have approved of this consideration.
After all, he was concerned with the smooth
operation of government, which would be difficult if
the Senate failed to confirm candidates for important
positions. Then again, Hamilton referred to the
recess power as a “supplement” to the “ordinary”
method of appointment, which, he wrote, is
“confined to the President and Senate jointly.”
Until the case of National Labor Relations Board v.

Noel Canning (2014), there was no occasion for the
Court to consider this or other issues related to the
recess appointments clause. But, as Justice Breyer’s
opinion for the Court in Noel Canning makes clear,
presidents and their advisers, along with members of
Congress, did give thought to various interpretations
that the wording of the clause could admit.
As you read Noel Canning, note how Justice Breyer

makes use of this history, data drawn from historical
sources, and practice, among other sources, to
answer three questions about the recess power.
Justice Scalia also makes use of history in his
concurring opinion but comes to some very different
conclusions. What are the differences between the
two? Who makes the better case?
National Labor Relations Board v. Noel Canning

573 U.S.__ (2014)
1281.html

Vote: 9 (Alito, Breyer, Ginsburg, Kagan, Kennedy,

Roberts, Scalia, Sotomayor, Thomas)
0
OPINION OF THE COURT: Breyer

CONCURRING OPINION: Scalia
Facts:
This case arises out of a labor dispute. The
National Labor Relations Board (NLRB) found that
Noel Canning, a Pepsi-Cola distribution company,
had unlawfully refused to execute a collective-
bargaining agreement with a labor union. Noel
Canning, in turn, asked the Court of Appeals for
the District of Columbia Circuit to set the board’s
order aside. It claimed that the board lacked a
quorum because three of the five board members
had been invalidly appointed.
The three members in question were Sharon

Block, Richard Griffin, and Terence Flynn. In 2011
President Obama had nominated each to the
board. As of January 2012, Flynn’s nomination had
been pending in the Senate awaiting confirmation
for approximately a year. The nominations of the
other two had been pending for a few weeks. On
January 4, 2012, Obama, invoking the recess
appointments clause (Article II, Section 2, Clause
3), appointed all three to the board. The recess
appointments clause gives the president the
power “to fill up all Vacancies that may happen
during the Recess of the Senate.”
Noel Canning argued that the appointments

violated the recess appointments clause. It noted
that on December 17, 2011, the Senate had
adopted a resolution providing that it would take a
series of brief recesses beginning the following
day. The Senate then proceeded to hold pro forma
sessions (“with no business . . . transacted”) every
Tuesday and Friday until it returned for ordinary
business on January 23, 2012. Noel Canning
argued that because each pro forma session
terminated the immediately preceding recess, the
January 4 appointments were made during a
three-day adjournment, which is not long enough
to trigger the recess appointments clause.
The U.S. Court of Appeals agreed that the

appointments fell outside the scope of the recess
clause, but for different reasons. It held that the
phrase “the recess,” as used in the clause, does
not include intrasession recesses, and that the
phrase “vacancies that may happen during the
recess” applies only to vacancies that first come
into existence during a recess.
As a result, the Supreme Court addressed three

questions: (1) whether “the recess” excludes
intrasessions, as the lower court held, (2) whether
“may happen” refers only to vacancies that arise
during the recess, again as the lower court held,
and (3) whether the Senate was in session or in
recess during the pro forma sessions.
Arguments:
For the petitioner, NLRB:
Intrasession recess appointments are

necessary to serve the purposes of the recess
appointment clause, and practice confirms this.
Presidents have made thousands of
intrasession appointments.
Since the 1820s, the vast majority of
presidents have made recess appointments to
fill vacancies that arose before a particular
recess but continued to exist during that
recess.
The Senate is in “recess” when, for 20 days, a
Senate order provides for only “pro forma”
sessions at which “no business” is to be
conducted. The mere possibility that the
Senate might suspend its “no business” order
during the 20-day period did not prevent that
period from constituting a recess.
For the respondent, Noel

Canning:
Based on the text of the Constitution, the
recess appointment power is limited to “the
recess” between sessions.
There can be no serious question that the text
of the recess clause was originally understood
to apply to vacancies that arise during the
recess. Every known analysis prior to 1822
reaches that conclusion.
The president cannot make recess
appointments when the Senate is convening
pro forma sessions every three days because
pro forma sessions are actual sessions.
Chief Justice Breyer Delivered the Opinion of
the Court.
Ordinarily the President must obtain “the Advice

and Consent of the Senate” before appointing an
“Office[r] of the United States.” . . . U. S. Const.,
Art. II, §2, cl. 2. But the Recess Appointments
Clause creates an exception. It gives the President
alone the power “to fill up all Vacancies that may
happen during the Recess of the Senate, by
granting Commissions which shall expire at the
End of their next Session.” . . . Art. II, §2, cl. 3. We
here consider three questions about the
application of this Clause.
The first concerns the scope of the words “recess

of the Senate.” Does that phrase refer only to an
inter-session recess (i.e., a break between formal
sessions of Congress), or does it also include an
intra-session recess, such as a summer recess in
the midst of a session? We conclude that the
Clause applies to both kinds of recess.
The second question concerns the scope of the

words “vacancies that may happen.” Does that
phrase refer only to vacancies that first come into
existence during a recess, or does it also include
vacancies that arise prior to a recess but continue
to exist during the recess? We conclude that the
Clause applies to both kinds of vacancy.
The third question concerns calculation of the

length of a “recess.” The President made the
appointments here at issue on January 4, 2012. At
that time the Senate was in recess pursuant to a
December 17, 2011, resolution providing for a
series of brief recesses punctuated by “pro forma
session[s],” with “no business . . . transacted,”
every Tuesday and Friday through January 20,
2012. . . . S. J., 112th Cong., 1st Sess., 923 (2011)
(hereinafter 2011 S. J.). In calculating the length
of a recess are we to ignore the pro forma
sessions, thereby treating the series of brief
recesses as a single, month-long recess? We
conclude that we cannot ignore these pro forma
sessions.
Our answer to the third question means that,

when the appointments before us took place, the
Senate was in the midst of a 3-day recess. Three
days is too short a time to bring a recess within
the scope of the Clause. Thus we conclude that the
President lacked the power to make the recess
appointments here at issue. . . .
Before turning to the specific questions presented,

we shall [note that] . . . [t]here is a great deal of
history to consider here. Presidents have made
recess appointments since the beginning of the
Republic. Their frequency suggests that the
Senate and President have recognized that recess
appointments can be both necessary and
appropriate in certain circumstances. We have not
previously interpreted the Clause, and, when
doing so for the first time in more than 200 years,
we must hesitate to upset the compromises and
working arrangements that the elected branches
of Government themselves have reached.
The first question concerns the scope of the
phrase “the recess of the Senate.” . . . All agree
that the phrase “the recess of the Senate” covers
inter-session recesses. The question is whether it
includes intra-session recesses as well.
In our view, the phrase “the recess” includes an

intra-session recess of substantial length. Its
words taken literally can refer to both types of
recess. Founding-era dictionaries define the word
“recess,” much as we do today, simply as “a period
of cessation from usual work.” . . . The Oxford
English Dictionary citing 18th- and 19th-century
sources for that definition of “recess.” . . . The
Founders themselves used the word to refer to
intra-session, as well as to inter-session, breaks. . .
.
We recognize that the word “the” in “the recess”

might suggest that the phrase refers to the single
break separating formal sessions of Congress.
[But] in fact, the phrase “the recess” was used to
refer to intra-session recesses at the time of the
founding. . . .
And we believe the Clause’s purpose demands the

broader interpretation. The Clause gives the
President authority to make appointments during
“the recess of the Senate” so that the President
can ensure the continued functioning of the
Federal Government when the Senate is away. The
Senate is equally away during both an inter-
session and an intra-session recess, and its
capacity to participate in the appointments
process has nothing to do with the words it uses to
signal its departure.
History also offers strong support for the broad
interpretation. . . .
In all, between the founding and the Great

Depression, Congress took substantial intra-
session breaks (other than holiday breaks) in four
years: 1867, 1868, 1921, and 1929. And in each of
those years the President made intra-session
recess appointments.
Since 1929, and particularly since the end of

World War II, Congress has shortened its inter-
session breaks as it has taken longer and more
frequent intra-session breaks; Presidents have
correspondingly made more intra-session recess
appointments. Indeed, if we include military
appointments, Presidents have made thousands of
intra-session recess appointments. . . .
The upshot is that restricting the Clause to inter-

session recesses would frustrate its purpose. It
would make the President’s recess-appointment
power dependent on a formalistic distinction of
Senate procedure . . .
The greater interpretive problem is determining

how long a recess must be in order to fall within
the Clause. Is a break of a week, or a day, or an
hour too short to count as a “recess”? . . .
[The Solicitor General] argues that the lower limit

should be three days by analogy to the
Adjournments Clause of the Constitution. That
Clause says: “Neither House, during the Session
of Congress, shall, without the Consent of the
other, adjourn for more than three days.”
We agree with the Solicitor General that a 3-day
recess would be too short. . . . A Senate recess
that is so short that it does not require the consent
of the House is not long enough to trigger the
President’s recess-appointment power.
That is not to say that the President may make

recess appointments during any recess that is
“more than three days.” The Recess Appointments
Clause seeks to permit the Executive Branch to
function smoothly when Congress is unavailable.
And though Congress has taken short breaks for
almost 200 years, and there have been many
thousands of recess appointments in that time, we
have not found a single example of a recess
appointment made during an intra-session recess
that was shorter than 10 days. . . .
We therefore conclude, in light of historical

practice, that a recess of more than 3 days but
less than 10 days is presumptively too short to fall
within the Clause. We add the word
“presumptively” to leave open the possibility that
some very unusual circumstance—a national
catastrophe, for instance, that renders the Senate
unavailable but calls for an urgent response—
could demand the exercise of the recess-
appointment power during a shorter break. . . . (It
should go without saying—except that Justice
Scalia compels us to say it—that political
opposition in the Senate would not qualify as an
unusual circumstance.) . . .
The second question concerns the scope of the

phrase “vacancies that may happen during the
recess of the Senate.” Art. II, §2, cl. 3. All agree
that the phrase applies to vacancies that initially
occur during a recess. But does it also apply to
vacancies that initially occur before a recess and
continue to exist during the recess? In our view
the phrase applies to both kinds of vacancy.
We believe that the Clause’s language, read

literally, permits, though it does not naturally
favor, our broader interpretation. We concede that
the most natural meaning of “happens” as applied
to a “vacancy” (at least to a modern ear) is that
the vacancy “happens” when it initially occurs . . .
[But] the Clause’s purpose strongly supports the

broader interpretation. That purpose is to permit
the President to obtain the assistance of
subordinate officers when the Senate, due to its
recess, cannot confirm them. [T]he narrower
interpretation would undermine this purpose. . . .
Examples are not difficult to imagine: An

ambassadorial post falls vacant too soon before
the recess begins for the President to appoint a
replacement; the Senate rejects a President’s
nominee just before a recess, too late to select
another. . . .
Historical practice over the past 200 years [also]

strongly favors the broader interpretation. The
tradition of applying the Clause to pre-recess
vacancies dates at least to President James
Madison. . . .
Further, we have examined a random sample of

the recess appointments made by our two most
recent Presidents, and have found that almost all
of those appointments filled pre-recess vacancies:
Of a sample of 21 recess appointments, 18 filled
pre-recess vacancies and only 1 filled a vacancy
that arose during the recess in which he was
appointed. The precise date on which 2 of the
vacancies arose could not be determined. Taken
together, we think it is a fair inference that a large
proportion of the recess appointments in the
history of the Nation have filled pre-existing
vacancies. . . .
And we are reluctant to upset this traditional

practice where doing so would seriously shrink
the authority that Presidents have believed existed
and have exercised for so long . . .
The third question concerns the calculation of the

length of the Senate’s “recess.”. . .
The President made the recess appointments

before us on January 4, 2012, in between the
January 3 and the January 6 pro forma sessions.
We must determine the significance of these
sessions—that is, whether, for purposes of the
Clause, we should treat them as periods when the
Senate was in session or as periods when it was in
recess. If the former, the period between January
3 and January 6 was a 3-day recess, which is too
short to trigger the President’s recess-
appointment power. If the latter, however, then the
3-day period was part of a much longer recess
during which the President did have the power to
make recess appointments. . . .
In our view, however, the pro forma sessions count

as sessions, not as periods of recess. We hold that,
for purposes of the Recess Appointments Clause,
the Senate is in session when it says it is, provided
that, under its own rules, it retains the capacity to
transact Senate business. The Senate met that
standard here.
The standard we apply is consistent with the

Constitution’s broad delegation of authority to the
Senate to determine how and when to conduct its
business. The Constitution explicitly empowers the
Senate to “determine the Rules of its
Proceedings.” Art. I, §5, cl. 2. . . .
In addition, the Constitution provides the Senate

with extensive control over its schedule. . . . This
suggests that the Senate’s determination about
what constitutes a session should merit great
respect. . . .
But our deference to the Senate cannot be

absolute. [I]f the Senate had left the Capitol and
“effectively given up . . . the business of
legislating” then it might be in recess, even if it
said it was not. In that circumstance, the Senate is
not simply unlikely or unwilling to act upon
nominations of the President. It is unable to do so.
The purpose of the Clause is to ensure the
continued functioning of the Federal Government
while the Senate is unavailable. This purpose
would count for little were we to treat the Senate
as though it were in session even when it lacks the
ability to provide its “advice and consent.”
Accordingly, we conclude that when the Senate
declares that it is in session and possesses the
capacity, under its own rules, to conduct business,
it is in session for purposes of the Clause.
Applying this standard, we find that the pro forma
sessions were sessions for purposes of the Clause.
First, the Senate said it was in session. . . .
Second, the Senate’s rules make clear that during

its pro forma sessions, despite its resolution that it
would conduct no business, the Senate retained
the power to conduct business. . . .
By way of contrast, we do not see how the Senate

could conduct business during a recess. It could
terminate the recess and then, when in session,
pass a bill. But in that case, of course, the Senate
would no longer be in recess. It would be in
session. And that is the crucial point. Senate rules
make clear that, once in session, the Senate can
act even if it has earlier said that it would not. . . .
Given our answer to the last question before us,

we conclude that the Recess Appointments Clause
does not give the President the constitutional
authority to make the appointments here at issue.
Because the Court of Appeals reached the same
ultimate conclusion (though for reasons we
reject), its judgment is affirmed.
It is so ordered.
JUSTICE SCALIA, concurring.

The first question presented is whether “the
Recess of the Senate,” during which the
President’s recess-appointment power is active, is
(a) the period between two of the Senate’s formal
sessions, or (b) any break in the Senate’s
proceedings. I would hold that “the Recess” is the
gap between sessions and that the appointments
at issue here are invalid because they
undisputedly were made during the Senate’s
session . . .
A sensible interpretation of the Recess

Appointments Clause should start by recognizing
that the Clause uses the term “Recess” in
contradistinction to the term “Session.” . . .
In the founding era, the terms “recess” and

“session” had well-understood meanings in the
marking-out of legislative time. The life of each
elected Congress typically consisted (as it still
does) of two or more formal sessions separated by
adjournments “sine die,” that is, without a
specified return date. The period between two
sessions was known as “the recess.” . . .
It is linguistically implausible to suppose—as the

majority does—that the Clause uses one of those
terms (“Recess”) informally and the other
(“Session”) formally in a single sentence, with the
result that an event can occur during both the
“Recess” and the “Session.” . . .
To avoid the absurd results that follow from its

colloquial reading of “the Recess,” the majority is
forced to declare that some intra-session breaks—
though undisputedly within the phrase’s colloquial
meaning—are simply “too short to trigger the
Recess Appointments Clause.” But it identifies no
textual basis whatsoever for limiting the length of
“the Recess,” nor does it point to any clear
standard for determining how short is too short. It
is inconceivable that the Framers would have left
the circumstances in which the President could
exercise such a significant and potentially
dangerous power so utterly indeterminate. . . .
The second question presented is whether

vacancies that “happen during the Recess of the
Senate,” which the President is empowered to fill
with recess appointments, are (a) vacancies that
arise during the recess, or (b) all vacancies that
exist during the recess, regardless of when they
arose. I would hold that the recess-appointment
power is limited to vacancies that arise during the
recess in which they are filled . . . As the majority
concedes, “the most natural meaning of ‘happens’
as applied to a ‘vacancy’ . . . is that the vacancy
‘happens’ when it initially occurs.” The majority
adds that this meaning is most natural “to a
modern ear,” but it fails to show that founding-era
ears heard it differently. “Happen” meant then, as
it does now, “[t]o fall out; to chance; to come to
pass.” 1 Johnson, Dictionary of the English
Language 913. Thus, a vacancy that happened
during the Recess was most reasonably
understood as one that arose during the recess.
Even if the Constitution were wrongly thought to

be ambiguous on this point, a fair recounting of
the relevant history does not support the
majority’s interpretation. . . .
. . . Washington’s and Adams’ Attorneys General

read the Constitution to restrict recess
appointments to vacancies arising during the
recess, and there is no evidence that any of the
first four Presidents consciously departed from
that reading. The contrary reading was first
defended by an executive official in 1823, was
vehemently rejected by the Senate in 1863, was
vigorously resisted by legislation in place from
1863 until 1940. . . . I can conceive of no sane
constitutional theory under which this evidence of
“historical practice”—which is actually evidence of
a long-simmering inter-branch conflict—would
require us to defer to the views of the Executive
Branch. . . .
What the majority needs to sustain its judgment is

an ambiguous text and a clear historical practice.
What it has is a clear text and an at-best-
ambiguous historical practice. Even if the
Executive could accumulate power through
adverse possession by engaging in a consistent
and unchallenged practice over a long period of
time, the oft-disputed practices at issue here
would not meet that standard. Nor have those
practices created any justifiable expectations that
could be disappointed by enforcing the
Constitution’s original meaning. There is thus no
ground for the majority’s deference to the
unconstitutional recess-appointment practices of
the Executive Branch. . . .
I concur in the judgment only.
After the Court issued its decision in Noel Canning,

one journalist claimed that it was a “unanimous
rebuke to President Obama.”38 Many commentators
have gone further, claiming that Noel Canning was
actually a major loss for presidential power, and not
just for the Obama administration. One lawyer put it
this way:
38 Adam Liptak, “Supreme Court Rebukes Obama on
Right of Appointment,” New York Times, June 26,
2014, A1.
In the past, if a president was unable to get a

nominee confirmed, he would sometimes
sidestep an uncooperative Senate by making a
recess appointment, rather than finding another
nominee who had better chances of being
confirmed. Going forward, that will rarely (if
ever) be an option.39
39 Kali Borkoski, “Political Consequences of NLRB v.

Noel Canning,” Scotusblog, July 15, 2014,
http://www.scotusblog.com/2014/07/political-
consequences-of-nlrb-v-noel-canning/.
Scalia disagreed. In fact, he was so outraged by the

majority’s opinion that he took the very rare step of
summarizing his concurrence from the bench.
According to Scalia, “The majority practically bends
over backwards to ensure that recess appointments
will remain a powerful weapon in the president’s
arsenal.” Who has the better case: the commentators
or Scalia? In thinking about this question, you may
want to consider that through the middle of 2018,
Trump had not made a recess appointment in part
because the Senate has used a series of brief pro
forma sessions to block him from so doing—a
perfectly permissible strategy under Noel Canning.
The Power of Removal
The president’s need to have executive branch
officials who support the administration’s policy
goals is only partially satisfied by the power to
appoint. What presidents also say they require is the
corollary—the discretionary right to remove
administrative officials from office. This need may
arise when a president’s appointees do not carry out
their duties the way the president wishes, or when
an official appointed by a previous administration
will not voluntarily step aside to make way for a
nominee of the new president’s choosing.
Article II, Section 4, of the Constitution specifies that

“[t]he President, Vice President and all civil Officers
of the United States, shall be removed from office on
Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.”
Short of impeachment, however, the Constitution
does not delineate procedures for removals. In the
absence of constitutional guidelines, a lingering
controversy has centered on whether administrative
officials can be removed at the discretion of the
president alone or whether Congress also must play
a role.
The argument supporting presidential discretion

holds that the chief executive must be free to remove
those subordinates who fail to meet the president’s
expectations or who are not loyal to the
administration’s policy objectives. It would be
unreasonable to require the approval of Congress
before such officials could be dismissed. Such a
requirement might well paralyze the executive
branch, particularly when the legislature and the
presidency are under the control of different political
parties. Moreover, recall that in the view of
proponents of the unitary executive doctrine, only
the president is vested with the authority to execute
the laws in the executive branch and only he can
remove officers in “his” branch.
The argument for legislative participation in the

process holds that the Constitution anticipates
Senate action. If the president can appoint major
executive department officials only with senatorial
approval, it is reasonable to infer that the chief
executive can remove administrators only by going
through the same process and obtaining the advice
and consent of the Senate. In The Federalist Papers’
only reference to the removal powers, in Federalist
No. 77, Alexander Hamilton supported this view,
stating flatly, “The consent of that body [the Senate]
would be necessary to displace as well as to
appoint.” Hamilton argued that if the president and
the Senate agreed that an official should be
removed, the decision would be much better
accepted than if the president acted alone. Hamilton
also asserted that a new president should be
restrained from removing an experienced official
who had conducted his duties satisfactorily just
because the president preferred to have a different
person in the position.
Historical practice generally has rejected Hamilton’s
position. From the very beginning, Congress allowed
the chief executive to remove administrative officials
without Senate consent. In the First Congress, James
Madison proposed that three executive departments
be created: the Foreign Affairs, Treasury, and War
Departments. The creation of the Foreign Affairs
(later State) Department received the most
legislative attention. According to Madison’s
recommendation, the department was to have a
secretary to be appointed by the president with the
approval of the Senate who could be removed by the
president alone. The House and the Senate held
long, comprehensive debates on the removal power
at that time and passed legislation allowing the
secretary of state to be removed at the president’s
discretion without Senate approval.
At times, however, the legislature has asserted a

right to participate in the removal process. The most
notable example occurred with the passage of the
Tenure of Office Act in 1867. This statute was
enacted to restrict the powers of President Andrew
Johnson, who took office after Lincoln’s
assassination in 1865. Following the Civil War, the
Radical Republicans dominated Congress and had
little use for Johnson, a Democrat from Tennessee.
Congress did not want Johnson to be able to remove
Lincoln’s appointees. The Tenure of Office Act
stipulated that the president could not remove high-
ranking executive department heads without first
obtaining the approval of the Senate. Johnson
blatantly defied the statute by dismissing Secretary
of War Edwin M. Stanton in August 1867 and
appointing Ulysses S. Grant as interim secretary. The
Senate ordered Stanton reinstated. Grant left office,
and Stanton returned in January 1868. The next
month Johnson fired Stanton again. The president’s
failure to comply with the law constituted one of the
grounds for his impeachment by the House of
Representatives.
In Myers v. United States (1926), Chief Justice

William Howard Taft, the only justice to have served
previously as president, wrote an opinion strongly
supporting the authority of the chief executive to
remove executive branch officials without first
obtaining Senate approval.
Library of Congress
The Tenure of Office Act never had a judicial test.
Once Johnson’s term expired, the statute was
weakened by amendment and then repealed in 1887.
The Supreme Court finally faced this issue in 1926
when presented with an appeal from a fired
postmaster. The Court’s opinion came from Chief
Justice William Howard Taft, who compiled one of
the nation’s most spectacular résumés. Among his
positions were solicitor general, governor of the
Philippines, secretary of war, president of the United
States, and, finally, chief justice of the United States.
Given Taft’s rich experience in the executive branch
and none as a legislator, we would expect, correctly,
that he would support a broad interpretation of the
president’s removal powers and reject the notion
that the Senate had the right to limit that discretion.
His long, detailed opinion in Myers v. United States,
combined with the dissenting opinions it provoked,
filled 243 pages.
Myers v. United States 272 U.S. 52 (1926)
court/272/52.html
Vote: 6 (Butler, Sanford, Stone, Sutherland, Taft,

Van Devanter)
3 (Brandeis, Holmes, McReynolds)
OPINION OF THE COURT: Taft

DISSENTING OPINIONS: Brandeis, Holmes,
McReynolds
Facts:
Prior to its replacement by the United States
Postal Service in 1970, the U.S. Post Office
Department was a cabinet-level department but
considered something of a patronage agency.
Postal officials, beginning with the postmaster
general (the head of the department) and
continuing down to the local postmasters, were
political appointees rewarded for loyal party
service. In July 1917 President Woodrow Wilson,
with the advice and consent of the Senate,
appointed Frank S. Myers to be a first-class
postmaster in Portland, Oregon, for a four-year
term.
Toward the end of Wilson’s administration,

Postmaster General Albert Burleson obtained
information that led him to believe that Myers had
committed fraud in the course of his official
duties. After considering the case, Wilson reached
the same conclusion and decided Myers should be
removed from office. In January 1920 Burleson, on
the president’s orders, asked Myers to submit his
resignation. When Myers ignored tradition and
refused Wilson’s request, the president ordered
the postmaster general to fire him, which he did in
February. Myers complained that his removal was
illegal. The basis for his argument was an 1876
federal law that said, “Postmasters of the first,
second and third classes shall be appointed and
may be removed by the President by and with the
advice and consent of the Senate and shall hold
their offices for four years unless sooner removed
or suspended according to law.” Wilson strongly
believed that his right to remove individuals from
appointed office was not to be shared with
Congress, and he had engaged in some bitter
fights with Congress over this point.
Because Wilson had not received the Senate’s

approval for the dismissal, Myers claimed he had
been unlawfully fired. He sued for his unpaid
salary from the date of his removal to the
expiration of his four-year term, a claim of
$8,838.71. During the period at issue, Myers
accepted no other employment, and the Senate
confirmed no other nominee for the position. After
Myers died, his widow continued the legal action.
The court of claims rejected Myers’s suit, and an
appeal came to the Supreme Court. After a
detailed discussion of the events surrounding
Madison’s proposals during the First Congress
(the decision of 1789) and the controversy over
the Tenure of Office Act, Chief Justice Taft
explained the Court’s decision in favor of
presidential discretion in exercising the removal
power.
Arguments:
For the appellant, Lois P. Myers for the
estate of Frank S. Myers:
Article II, Section 2, gives Congress discretion
to vest the appointment of inferior officers in
the president, courts, or heads of departments,
and should be inferred to allow congressional
participation in the removal of those same
officers.
The 1876 law is neither isolated nor eccentric;
many congressional acts operate under the
similar assumption that Congress has the
power to prescribe the terms of removal from
office of presidential appointees.
The argument that the president cannot
effectively execute the laws without the
unrestricted power of removal begs the
question. Congress makes the laws that the
president must execute. The Constitution
makes no vague grant of an executive
prerogative to disregard legislative
enactments.
For the appellee, United States:

The president has full and complete power of
removal under Article II, which vests the
executive power in the president. Because the
power to remove an officer of the executive
branch is an executive duty, the president has
full power of removal.
If Congress has the power to prohibit the
president from removing any executive official
without its consent, the presidential office
becomes dependent on Congress, thereby
impairing the system of checks and balances. If
Congress can prohibit the president from
removing a postmaster without its consent,
then what is to stop Congress from prohibiting
the president from removing a member of his
cabinet without its consent?
Suppose one political party dominated
Congress and Congress made all incumbent
cabinet members irremovable except with the
consent of the Senate. If a president of a
different party were elected, his power to do
his job would be greatly impaired if not
altogether destroyed. This would be the
destruction of the presidential office as an
independent branch of government.
MR. Chief Justice Taft Delivered the Opinion

of the Court.
This case presents the question whether under the

Constitution the President has the exclusive power
of removing executive officers of the United States
whom he has appointed by and with the advice
and consent of the Senate. . . .
The vesting of the executive power in the

President was essentially a grant of the power to
execute the laws. But the President alone and
unaided could not execute the laws. He must
execute them by the assistance of subordinates.
This view has since been repeatedly affirmed by
this court. As he is charged specifically to take
care that they be faithfully executed, the
reasonable implication, even in the absence of
express words, was that as part of his executive
power he should select those who were to act for
him under his direction in the execution of the
laws. The further implication must be, in the
absence of any express limitation respecting
removals, that as his selection of administrative
officers is essential to the execution of the laws by
him, so must be his power of removing those for
whom he cannot continue to be responsible. It was
urged that the natural meaning of the term
“executive power” granted the President included
the appointment and removal of executive
subordinates. If such appointments and removals
were not an exercise of the executive power, what
were they? They certainly were not the exercise of
legislative or judicial power in government as
usually understood. . . .
. . . A veto by the Senate—a part of the legislative

branch of the Government—upon removals is a
much greater limitation upon the executive branch
and a much more serious blending of the
legislative with the executive than a rejection of a
proposed appointment. It is not to be implied. The
rejection of a nominee of the President for a
particular office does not greatly embarrass him in
the conscientious discharge of his high duties in
the selection of those who are to aid him, because
the President usually has an ample field from
which to select for office, according to his
preference, competent and capable men. The
Senate has full power to reject newly proposed
appointees whenever the President shall remove
the incumbents. Such a check enables the Senate
to prevent the filling of offices with bad or
incompetent men or with those against whom
there is tenable objection.
The power to prevent the removal of an officer

who has served under the President is different
from the authority to consent to or reject his
appointment. When a nomination is made, it may
be presumed that the Senate is, or may become,
as well advised as to the fitness of the nominee as
the President, but in the nature of things the
defects in ability or intelligence or loyalty in the
administration of the laws of one who has served
as an officer under the President, are facts as to
which the President, or his trusted subordinates,
must be better informed than the Senate, and the
power to remove him may, therefore, be regarded
as confined, for very sound and practical reasons,
to the governmental authority which has
administrative control. The power of removal is
incident to the power of appointment, not to the
power of advising and consenting to appointment,
and when the grant of the executive power is
enforced by the express mandate to take care that
the laws be faithfully executed, it emphasizes the
necessity for including within the executive power
as conferred the exclusive power of removal. . . .
Made responsible under the Constitution for the

effective enforcement of the law, the President
needs as an indispensable aid to meet it the
disciplinary influence upon those who act under
him of a reserve power of removal. But it is
contended that executive officers appointed by the
President with the consent of the Senate are . . .
not his servants to do his will, and that his
obligation to care for the faithful execution of the
laws does not authorize him to treat them as such.
The degree of guidance in the discharge of their
duties that the President may exercise over
executive officers varies with the character of
their service as prescribed in the law under which
they act. The highest and most important duties
which his subordinates perform are those in which
they act for him. In such cases they are exercising
not their own but his discretion. This field is a very
large one. It is sometimes described as political.
Each head of a department is and must be the
President’s alter ego in the matters of that
department where the President is required by
law to exercise authority. . . .
In all such cases, the discretion to be exercised is

that of the President in determining the national
public interest and in directing the action to be
taken by his executive subordinates to protect it.
In this field his cabinet officers must do his will.
He must place in each member of his official
family, and his chief executive subordinates,
implicit faith. The moment that he loses
confidence in the intelligence, ability, judgment or
loyalty of any one of them, he must have the
power to remove him without delay. To require
him to file charges and submit them to the
consideration of the Senate might make
impossible that unity and coordination in
executive administration essential to effective
action.
The duties of the heads of departments and

bureaus in which the discretion of the President is
exercised . . . are the most important in the whole
field of executive action of the Government. There
is nothing in the Constitution which permits a
distinction between the removal of the head of a
department or a bureau, when he discharges a
political duty of the President or exercises his
discretion, and the removal of executive officers
engaged in the discharge of their other normal
duties. The imperative reasons requiring an
unrestricted power to remove the most important
of his subordinates in their most important duties
must, therefore, control the interpretation of the
Constitution as to all appointed by him.
But this is not to say that there are not strong

reasons why the President should have a like
power to remove his appointees charged with
other duties than those above described. The
ordinary duties of officers prescribed by statute
come under the general administrative control of
the President by virtue of the general grant to him
of the executive power, and he may properly
supervise and guide their construction of the
statutes under which they act in order to secure
that unitary and uniform execution of the laws
which Article II of the Constitution evidently
contemplated in vesting general executive power
in the President alone. Laws are often passed with
specific provision for the adoption of regulations
by a department or bureau head to make the law
workable and effective. The ability and judgment
manifested by the official thus empowered, as well
as his energy and stimulation of his subordinates,
are subjects which the President must consider
and supervise in his administrative control.
Finding such officers to be negligent and
inefficient, the President should have the power to
remove them. Of course there may be duties so
peculiarly and specifically committed to the
discretion of a particular officer as to raise a
question whether the President may overrule or
revise the officer’s interpretation of his statutory
duty in a particular instance. Then there may be
duties of a quasi-judicial character imposed on
executive officers and members of executive
tribunals whose decisions after hearing affect
interests of individuals, the discharge of which the
President can not in a particular case properly
influence or control. But even in such a case he
may consider the decision after its rendition as a
reason for removing the officer, on the ground that
the discretion regularly entrusted to that officer
by statute has not been on the whole intelligently
or wisely exercised. Otherwise he does not
discharge his own constitutional duty of seeing
that the laws be faithfully executed. . . .
We come now to consider an argument advanced

and strongly pressed on behalf of the complainant,
that this case concerns only the removal of a
postmaster; that a postmaster is an inferior
officer; that such an office was not included within
the legislative decision of 1789, which related only
to superior officers to be appointed by the
President by and with the advice and consent of
the Senate. . . .
The power to remove inferior executive officers,

like that to remove superior executive officers, is
an incident of the power to appoint them, and is in
its nature an executive power. The authority of
Congress given by the excepting clause to vest the
appointment of such inferior officers in the heads
of departments carries with it authority
incidentally to invest the heads of departments
with power to remove. It has been the practice of
Congress to do so and this Court has recognized
that power. . . . But the Court never has held, nor
reasonably could hold, although it is argued to the
contrary on behalf of the appellant, that the
excepting clause enables Congress to draw to
itself, or to either branch of it, the power to
remove or the right to participate in the exercise
of that power. To do this would be to go beyond
the words and implications of that clause and to
infringe the constitutional principle of the
separation of governmental powers.
Assuming then the power of Congress to regulate

removals as incidental to the exercise of its
constitutional power to vest appointments of
inferior officers in the heads of departments,
certainly so long as Congress does not exercise
that power, the power of removal must remain
where the Constitution places it, with the
President, as part of the executive power, in
accordance with the legislative decision of 1789
which we have been considering. . . .
Our conclusion on the merits, sustained by the

arguments before stated, is that Article II grants
to the President the executive power of
Government, i.e., the general administrative
control of those executing the laws, including the
power of appointment and removal of executive
officers—a conclusion confirmed by his obligation
to take care that the laws be faithfully executed;
that Article II excludes the exercise of legislative
power by Congress to provide for appointments
and removals, except only as granted therein to
Congress in the matter of inferior offices; that
Congress is only given power to provide for
appointments and removals of inferior officers
after it has vested, and on condition that it does
vest, their appointment in other authority than the
President with the Senate’s consent; that the
provisions of the second section of Article II,
which blend action by the legislative branch, or by
part of it, in the work of the executive, are
limitations to be strictly construed and not to be
extended by implication; that the President’s
power of removal is further established as an
incident to his specifically enumerated function of
appointment by and with the advice of the Senate,
but that such incident does not by implication
extend to removals the Senate’s power of
checking appointments; and finally that to hold
otherwise would make it impossible for the
President, in case of political or other differences
with the Senate or Congress, to take care that the
laws be faithfully executed. . . .
When, on the merits, we find our conclusion

strongly favoring the view which prevailed in the
First Congress, we have no hesitation in holding
that conclusion to be correct; and it therefore
follows that the Tenure of Office Act of 1867, in so
far as it attempted to prevent the President from
removing executive officers who had been
appointed by him by and with the advice and
consent of the Senate, was invalid, and that
subsequent legislation of the same effect was
equally so.
For the reasons given, we must therefore hold that

the provision of the law of 1876, by which the
unrestricted power of removal of first class
postmasters is denied to the President, is in
violation of the Constitution, and invalid. This
leads to an affirmance of the judgment of the
Court of Claims.
The separate opinion of MR.

JUSTICE MCREYNOLDS.
Congress has long and vigorously asserted its
right to restrict removals and there has been no
common executive practice based upon a contrary
view. The President has often removed, and it is
admitted that he may remove, with either the
express or implied assent of Congress; but the
present theory is that he may override the
declared will of the body. This goes far beyond any
practice heretofore approved or followed; it
conflicts with the history of the Constitution, with
the ordinary rules of interpretation, and with the
construction approved by Congress since the
beginning and emphatically sanctioned by this
court. To adopt it would be revolutionary. . . .
The federal Constitution is an instrument of exact

expression. Those who maintain that Art. 2, Sec.
1, was intended as a grant of every power of
executive nature not specifically qualified or
denied, must show that the term “executive
power” had some definite and commonly accepted
meaning in 1787 . . .
In any rational search for answer to the questions

arising upon this record, it is important not to
forget—
That this is a government of limited powers

definitely enumerated and granted by a written
Constitution. . . .
That the Constitution must be interpreted by

attributing to its words the meaning which they
bore at the time of its adoption and in view of
commonly-accepted canons of construction, its
history, early and long-continued practices under
it, and relevant opinions of this court.
That the Constitution endows Congress with

plenary powers “to establish post offices and post
roads.”
That exercising this power during the years from

1789 to 1836, Congress provided for postmasters
and vested the power to appoint and remove all of
them at pleasure in the Postmaster General.
That the Constitution contains no words which

specifically grant to the President power to
remove duly appointed officers. And it is definitely
settled that he cannot remove those whom he has
not appointed—certainly they can be removed only
as Congress may permit.
That postmasters are inferior officers within the

meaning of Art. II, Sec. 2, of the Constitution.
That from its first session to the last one Congress

has often asserted its right to restrict the
President’s power to remove inferior officers,
although appointed by him with consent of the
Senate.
That many Presidents have approved statutes

limiting the power of the executive to remove, and
that from the beginning such limitations have
been respected in practice. . . .
That to declare the President vested with

indefinite and illimitable executive powers would
extend the field of his possible action far beyond
the limits observed by his predecessors and would
enlarge the powers of Congress to a degree
incapable of fair appraisement.
Considering all these things, it is impossible for

me to accept the view that the President may
dismiss, as caprice may suggest, any inferior
officer whom he has appointed with consent of the
Senate, notwithstanding a positive inhibition by
Congress. In the last analysis that view has no
substantial support . . .
Judgment should go for the appellant.
MR. JUSTICE BRANDEIS,

dissenting.
The contention that Congress is powerless to
make consent of the Senate a condition of removal
by the President from an executive office rests
mainly upon the clause in § 1 of Article II which
declares that “The executive Power hall be vested
in a President.” The argument is that appointment
and removal of officials are executive
prerogatives; that the grant to the President of
“the executive Power” confers upon him, as
inherent in the office, the power to exercise these
two functions without restriction by Congress,
except insofar as the power to restrict his exercise
of them is expressly conferred upon Congress by
the Constitution; that, in respect to appointment,
certain restrictions of the executive power are so
provided for; but that, in respect to removal, there
is no express grant to Congress of any power to
limit the President’s prerogative. The simple
answer to the argument is this: the ability to
remove a subordinate executive officer, being an
essential of effective government, will, in the
absence of express constitutional provision to the
contrary, be deemed to have been vested in some
person or body. But it is not a power inherent in a
chief executive. The President’s power of removal
from statutory civil inferior offices, like the power
of appointment to them, comes immediately from
Congress. It is true that the exercise of the power
of removal is said to be an executive act, and that,
when the Senate grants or withholds consent to a
removal by the President, it participates in an
executive act. But the Constitution has
confessedly granted to Congress the legislative
power to create offices, and to prescribe the
tenure thereof, and it has not in terms denied to
Congress the power to control removals . . .
It is also argued that the clauses in Article II, § 3,

of the Constitution, which declare that the
President “shall take Care that the Laws be
faithfully executed, and shall Commission all the
Officers of the United States” imply a grant to the
President of the alleged uncontrollable power of
removal. I do not find in [this] clause anything
which supports this claim. . . . There is no express
grant to the President of incidental powers
resembling those conferred upon Congress by [the
necessary and power clause] of Article I, § 8. A
power implied on the ground that it is inherent in
the executive, must, according to established
principles of constitutional construction, be
limited to “the least possible power adequate to
the end proposed.” . . . Power to remove, as well
as to suspend, a high political officer might
conceivably be deemed indispensable to
democratic government and, hence, inherent in
the President. But power to remove an inferior
administrative officer appointed for a fixed term
cannot conceivably be deemed an essential of
government.
To imply a grant to the President of the

uncontrollable power of removal from statutory
inferior executive offices involves an unnecessary
and indefensible limitation upon the constitutional
power of Congress to fix the tenure of inferior
statutory offices. That such a limitation cannot be
justified on the ground of necessity is
demonstrated by the practice of our governments,
state and national. In none of the original thirteen
States did the chief executive possess such power
at the time of the adoption of the Federal
Constitution. . . .
The practice of Congress to control the exercise of

the executive power of removal from inferior
offices is evidenced by many statutes which
restrict it in many ways besides the removal
clause here in question. Each of these restrictive
statutes became law with the approval of the
President . . . Some of these statutes, prescribing
a fixed term, provide that removal shall be made
only or one of several specified causes. Some
provide a fixed term, subject generally to removal
for cause. Some provide for removal only after
hearing. Some provide a fixed term, subject to
removal for reasons to be communicated by the
President to the Senate . . .
The doctrine of the separation of powers was

adopted by the convention of 1787 not to promote
efficiency, but to preclude the exercise of arbitrary
power. The purpose was not to avoid friction but,
by means of the inevitable friction incident to the
distribution of the governmental powers among
three departments, to save the people from
autocracy. In order to prevent arbitrary executive
action, the Constitution provided in terms that
presidential appointments be made with the
consent of the Senate, unless Congress should
otherwise provide, and this clause was construed
by Alexander Hamilton in The Federalist, No. 77,
as requiring like consent to removals.
Nine years later the president’s discretionary power

to remove administrators was challenged again. This
time the situation was somewhat different because
the office involved had greater policy-making power
than the local postmaster position at issue in Myers.
Here, the fired officer was not a member of the
regular executive branch departments but a member
of the Federal Trade Commission (FTC), an
independent regulatory board. Did these differences
prompt the justices to rule differently on the
president’s removal power, or did the Myers
precedent apply here as well?
Humphrey’s Executor v. United States 295 U.S.

602 (1935)
court/295/602.html
Vote: 9 (Brandeis, Butler, Cardozo, Hughes,
McReynolds, Roberts, Stone, Sutherland, Van
Devanter)
OPINION OF THE COURT: Sutherland
Facts:
In 1914 Congress created the Federal Trade
Commission (FTC) as an independent regulatory
agency to enforce antitrust laws and prevent
unfair methods of commercial competition. The
statute called for the FTC to be staffed by five
commissioners appointed by the president and
confirmed by the Senate. Not more than three
members could be of the same political party, and
members were to serve staggered seven-year
terms. These provisions were intended to increase
the independence of the board and prevent its
domination by the incumbent chief executive. The
president could remove commissioners, but only
for inefficiency, neglect of duty, or malfeasance in
office. The commission had the powers of rule
making, investigation, and enforcement.
In 1931 President Herbert Hoover named FTC

commissioner William E. Humphrey to a second
seven-year term, which would expire in 1938.
When Franklin Roosevelt was elected in 1932, he
made every effort to staff the executive branch
with people who were committed to his New Deal
programs for combating the Great Depression.
The president wrote to Humphrey on July 25,
1933, asking him to resign from his post on the
ground that “the aims and purposes of the
Administration with respect to the work of the
Commission can be carried out most effectively
with personnel of my own selection.” When
Humphrey did not reply, the president wrote to
him again on August 31: “You will, I know, realize
that I do not feel that your mind and my mind go
along together on either the policies or the
administering of the Federal Trade Commission,
and, frankly, I think it best for the people of this
country that I should have a full confidence.”
Humphrey then told the president that he would
not resign. In his third letter to Humphrey, dated
October 7, Roosevelt wrote, “Effective as of this
date you are hereby removed from the office of
Commissioner of the Federal Trade Commission.”
The president did not rest his action on any of the
statutory grounds for removing a commissioner;
rather, he fired Humphrey because he did not
approve of his positions on policy matters related
to the jurisdiction of the FTC. Humphrey claimed
he had been illegally removed.
Humphrey died in February 1934. His executor

filed suit in the court of claims in behalf of
Humphrey’s estate to recover the salary lost
between the date of his dismissal and his death.
The administration argued on the basis of Myers
that the president was free to remove executive
officials at will. Humphrey’s executor claimed that
the law establishing the FTC placed
constitutionally valid restraints on the president’s
discretion to remove officeholders. The court of
claims asked the Supreme Court to answer two
questions: Did the Federal Trade Commission Act
restrict the president’s removal power to those
grounds cited in the statute? And, if so, is such a
restriction constitutional?
Arguments:
For the plaintiff, Samuel F. Rathbun, as
executor of the estate of William E.
Humphrey, deceased:
The duties and functions of the Federal Trade
Commission are inconsistent with an
unrestricted power of removal by the
president. The FTC was intended to be an
independent body. The power to remove an
officer is the power to dominate him. The
separation of powers theory is inconsistent
with the domination of such an agency by the
president through the exercise of an
unrestricted removal power.
In Myers the Court ruled that the Constitution
gives the president the exclusive power to
remove an executive officer appointed by him
with the advice and consent of the Senate. This
ruling has no application to an FTC
commissioner who performs functions as an
agent not only of the executive but also of the
legislature and the courts.
For the defendant, United

States:
Limiting the removal power is an
unconstitutional interference with the
executive power of the president, as Myers
held. The Supreme Court should adhere to
precedent.
No sound distinction can be drawn between
this case and Myers. A limitation on the
grounds of removal is at least as substantial an
interference with the executive power as is a
requirement that the Senate participate in the
removal.
There is nothing in the nature and functions of
the FTC to justify a departure from Myers. The
functions the FTC performs are in no essential
respects different from those performed by the
heads of the departments.
Mr. Justice Sutherland Delivered the Opinion

of the Court.
First. The question first to be considered is

whether, by the provisions of §1 of the Federal
Trade Commission Act, . . . the President’s power
is limited to removal for the specific causes
enumerated therein. . . .
The commission is to be non-partisan; and it must,

from the very nature of its duties, act with entire
impartiality. It is charged with the enforcement of
no policy except the policy of the law. Its duties
are neither political nor executive, but
predominantly quasi-judicial and quasi-legislative.
Like the Interstate Commerce Commission, its
members are called upon to exercise the trained
judgment of a body of experts “appointed by law
and informed by experience.”
The legislative reports in both houses of Congress
clearly reflect the view that a fixed term was
necessary to the effective and fair administration
of the law. In the report to the Senate the Senate
Committee on Interstate Commerce, in support of
the bill which afterwards became the act in
question, after referring to the provision fixing the
term of office at seven years, so arranged that the
membership would not be subject to complete
change at any one time. . . .
The debates in both houses demonstrate that the

prevailing view was that the commission was not
to be “subject to anybody in the government but . .
. only to the people of the United States”; free
from “political domination or control” or the
“probability or possibility of such a thing”; to be
“separate and apart from any existing department
of the government—not subject to the orders of
the President.”
More to the same effect appears in the debates,

which were long and thorough and contain
nothing to the contrary. While the general rule
precludes the use of these debates to explain the
meaning of the words of the statute, they may be
considered as reflecting light upon its general
purposes and the evils which it sought to remedy.
Thus, the language of the act, the legislative

reports, and the general purposes of the
legislation as reflected by the debates, all combine
to demonstrate the Congressional intent to create
a body of experts who shall gain experience by
length of service—a body which shall be
independent of executive authority, except in its
selection, and free to exercise its judgment
without the leave or hindrance of any other official
or department of the government. To the
accomplishment of these purposes, it is clear that
Congress was of opinion that length and certainty
of tenure would vitally contribute. And to hold
that, nevertheless, the members of the
commission continue in office at the mere will of
the President, might be to thwart, in large
measure, the very ends which Congress sought to
realize by definitely fixing the term of office.
We conclude that the intent of the act is to limit

the executive power of removal to the causes
enumerated, the existence of none of which is
claimed here; and we pass to the second question.
Second. To support its contention that the

removal provision of §1, as we have just construed
it, is an unconstitutional interference with the
executive power of the President, the
government’s chief reliance is Myers v. United
States. That case has been so recently decided,
and the prevailing and dissenting opinions so fully
review the general subject of the power of
executive removal, that further discussion would
add little to the value of the wealth of material
there collected . . . Nevertheless, the narrow point
actually decided was only that the President had
power to remove a postmaster of the first class,
without the advice and consent of the Senate as
required by act of Congress. In the course of the
opinion of the court, expressions occur which tend
to sustain the government’s contention, but these
are beyond the point involved and, therefore, do
not come within the rule of stare decisis. In so far
as they are out of harmony with the views here set
forth, these expressions are disapproved. . . .
The office of a postmaster is so essentially unlike

the office now involved that the decision in the
Myers case cannot be accepted as controlling our
decision here. A postmaster is an executive officer
restricted to the performance of executive
functions. He is charged with no duty at all related
to either the legislative or judicial power. The
actual decision in the Myers case finds support in
the theory that such an officer is merely one of the
units in the executive department and, hence,
inherently subject to the exclusive and illimitable
power of removal by the Chief Executive, whose
subordinate and aid he is. Putting aside dicta,
which may be followed if sufficiently persuasive
but which are not controlling, the necessary reach
of the decision goes far enough to include all
purely executive officers. It goes no farther;—
much less does it include an officer who occupies
no place in the executive department and who
exercises no part of the executive power vested by
the Constitution in the President.
The Federal Trade Commission is an

administrative body created by Congress to carry
into effect legislative policies embodied in the
statute in accordance with the legislative standard
therein prescribed, and to perform other specified
duties as a legislative or as a judicial aid. Such a
body cannot in any proper sense be characterized
as an arm or an eye of the executive. Its duties are
performed without executive leave and, in the
contemplation of the statute, must be free from
executive control. In administering the provisions
of the statute in respect of “unfair methods of
competition”—that is to say in filling in and
administering the details embodied by that
general standard—the commission acts in part
quasi-legislatively and in part quasi-judicially. In
making investigations and reports thereon for the
information of Congress . . . in aid of the
legislative power, it acts as a legislative agency.
Under [another provision of the law], which
authorizes the commission to act as a master in
chancery under rules prescribed by the court, it
acts as an agency of the judiciary. To the extent
that it exercises any executive function—as
distinguished from executive power in the
constitutional sense—it does so in the discharge
and effectuation of its quasi-legislative or quasi-
judicial powers, or as an agency of the legislative
or judicial departments of the government.
We think it plain under the Constitution that

illimitable power of removal is not possessed by
the President in respect of officers of the
character of those just named. The authority of
Congress, in creating quasi-legislative or quasi-
judicial agencies, to require them to act in
discharge of their duties independently of
executive control cannot well be doubted; and that
authority includes, as an appropriate incident,
power to fix the period during which they shall
continue in office, and to forbid their removal
except for cause in the meantime. For it is quite
evident that one who holds his office only during
the pleasure of another, cannot be depended upon
to maintain an attitude of independence against
the latter’s will.
The fundamental necessity of maintaining each of
the three general departments of government
entirely free from the control or coercive
influence, direct or indirect, of either of the
others, has often been stressed and is hardly open
to serious question. So much is implied in the very
fact of the separation of the powers of these
departments by the Constitution; and in the rule
which recognizes their essential co-equality. The
sound application of a principle that makes one
master in his own house precludes him from
imposing his control in the house of another who
is master there. . . .
The power of removal here claimed for the

President falls within this principle, since its
coercive influence threatens the independence of
a commission, which is not only wholly
disconnected from the executive department, but
which, as already fully appears, was created by
Congress as a means of carrying into operation
legislative and judicial powers, and as an agency
of the legislative and judicial departments. . . .
The result of what we now have said is this:

Whether the power of the President to remove an
officer shall prevail over the authority of Congress
to condition the power by fixing a definite term
and precluding a removal except for cause, will
depend upon the character of the office; the Myers
decision, affirming the power of the President
alone to make the removal, is confined to purely
executive officers; and as to officers of the kind
here under consideration, we hold that no removal
can be made during the prescribed term for which
the officer is appointed, except for one or more of
the causes named in the applicable statute.
To the extent that, between the decision in the

Myers case, which sustains the unrestrictable
power of the President to remove purely executive
officers, and our present decision that such power
does not extend to an office such as that here
involved, there shall remain a field of doubt, we
leave such cases as may fall within it for future
consideration and determination as they may
arise.
In Humphrey’s Executor the Court distinguished

between officials who exercise purely executive
powers and those who carry out quasi-legislative and
quasi-judicial functions. The former serve at the
pleasure of the president and may be removed at his
discretion. The latter may be removed only with
procedures consistent with statutory conditions
enacted by Congress. Would Chief Justice Taft have
agreed with this distinction? Or did his opinion in
Myers suggest that he would have opposed any
constraints on the presidential power to remove
officials?
No matter what Taft might have thought, the

Humphrey’s Executor scheme was reaffirmed in
Wiener v. United States (1958). The case involved a
member of the War Claims Commission, a body that
Congress established in 1948 to receive and
adjudicate claims for compensating certain parties
who suffered damages at the hands of the enemy in
World War II. The statute created a three-member
commission appointed by the president and
confirmed by the Senate. The commission was
scheduled to go out of existence two years after the
deadline for filing claims, but, after some legislative
extensions, the expiration date was changed to 1954.
The statute contained no provisions for terms of
office or procedures for removal.
President Truman appointed Myron Wiener to the

commission in 1950. President Dwight D.
Eisenhower, elected in 1952, wanted to replace the
commission members with Republicans, and he
requested the resignations of the incumbents.
Eisenhower wrote to Wiener, “I regard it as in the
national interest to complete the administration of
the War Claims Act of 1948, as amended, with
personnel of my own selection.” When the
incumbents refused to resign, Eisenhower ordered
them dismissed and appointed their replacements.
The Eisenhower appointees served in office as recess
appointments. The Senate had not yet confirmed
them when the commission ceased to exist. Wiener
sued for the salary denied him from the date of his
removal to the expiration of the commission. The
court of claims ruled in favor of the government, and
Wiener appealed to the Supreme Court.
Justice Felix Frankfurter, writing for a unanimous

bench, reversed. The justices concluded that Wiener
had been fired illegally. The war claims
commissioners exercised quasi-judicial functions,
and therefore the position was governed by the
decision in Humphrey’s Executor rather than Myers.
Because Wiener did not exercise purely executive
powers, Eisenhower had no power under the
Constitution or the statute creating the commission
to remove him. The Wiener decision is important
because, by reaffirming Humphrey’s Executor, it
brought an authoritative close to questions
regarding the extent of the president’s power to
remove officeholders at his discretion alone.
Executive Privilege: Protecting

Presidential Confidentiality
Article II is silent on two potentially important and
related questions pertaining to the president’s roles
as chief executive and commander in chief. The first,
executive privilege, asks whether the president can
refuse to supply the other branches of government
with information about his activities. The second
(covered in the next section) is immunity—whether
and to what extent the president is protected from
lawsuits while in office.
The executive privilege argument asserts that

certain conversations, documents, and records are
so closely tied to the sensitive duties of the president
that they should remain confidential. Neither the
legislature nor the judiciary should be allowed
access to these materials without presidential
consent, nor should the other branches be
empowered to compel the president to hand over
such items, especially those related to matters
concerning national security or foreign policy.
Executive privilege, it is argued, is inherent in the
office of the president.
Although invoked infrequently, the privilege has

been part of American history since the beginning of
the nation. In some early disputes between the
president and Congress, chief executives refused to
provide certain information to the legislature.
George Washington balked at giving the House of
Representatives documents and correspondence
pertaining to the Jay Treaty—a controversial treaty
between the United States and Great Britain. In a
message to the House, Washington wrote,
The nature of foreign negotiations requires

caution, and their success must often depend on
secrecy; and even when brought to a conclusion
a full disclosure of all the measures, demands, or
eventual concessions which may have been
proposed or contemplated would be extremely
impolitic; for this might have a pernicious
influence on future negotiations, or produce
immediate inconveniences, perhaps danger and
mischief, in relation to other powers. The
necessity of such caution and secrecy was one
cogent reason for vesting the power of making
treaties in the President, with the advice and
consent of the Senate, the principle on which
that body was formed confining it to a small
number of members. To admit, then, a right in
the House of Representatives to demand and to
have as a matter of course all the papers
respecting a negotiation with a foreign power
would be to establish a dangerous precedent.40
40 George Washington, message to the House

regarding documents relative to the Jay Treaty,
March 30, 1796, Yale Law School, Lillian Goldman
Law Library, The Avalon Project,
http://avalon.law.yale.edu/18th_century/gw003.asp.
Washington was hardly alone. During the

investigation and trial of Aaron Burr, Thomas
Jefferson cooperated with congressional information
requests, but only up to a point. He refused to
produce some items and later declined to testify at
the trial even though he was subpoenaed. Other
presidents, too, through the years have refused to
comply with congressional requests for testimony. It
is generally accepted that Congress does not have
the power to compel the president to come before it
to answer questions. Whether other executive
department officials are covered by claims of
privilege is a more open question.
The George W. Bush administration claimed the

privilege a handful of times against congressional
investigations—mostly after Democrats took control
of both houses of Congress in 2006 and launched a
series of investigations.41 Bush’s successor,
President Barack Obama, asserted executive
privilege in response to demands from House
Republicans on the Committee on Oversight and
Government Reform for information on a sting
operation against Mexican drug cartel activities that
had gone awry. Interestingly, when Obama came into
office, he had to decide how to deal with a claim of
executive privilege by Bush, over the firing of U.S.
attorneys in the face of a congressional subpoena.
The Obama administration chose to negotiate an
agreement whereby some of the requested
documents and testimony would be provided, but
only those documents from a specific period, and the
testimony would not be in front of the public.
Furthermore, the witnesses would not have to testify
about communications to or from the president.
41 Morton Rosenberg, “Presidential Claims of

Executive Privilege: History, Law, Practice and
Recent Developments,” Order Code RL30319,
Congressional Research Service, 2008,
http://www.fas.org/sgp/crs/secrecy/RL30319.pdf.
This is typical. In most instances, disputes over

executive privilege are handled through negotiation
between the executive branch and the institution
requesting information. Only rarely have such
disputes blown up into major court cases. When
pushed to the limit, executive privilege claims may
or may not prevail, but a president probably
increases his chances of success when sensitive
military or diplomatic matters requiring secrecy are
involved.
No case involving executive privilege has been more

important than United States v. Nixon (1974). It
occurred at a time of great constitutional stress,
when all three branches were locked in a fight about
fundamental separation of powers issues.
The conflict ultimately was resolved when President

Nixon resigned. Much of the impetus for breaking
the constitutional deadlock came from the justices’
unanimous decision in the Nixon case. Chief Justice
Warren Burger’s opinion for the Court reviewed the
issues surrounding the executive privilege
controversy and then rejected Nixon’s invocation of
the doctrine.
United States v. Nixon 418 U.S. 683 (1974)
court/418/683.html

Vote: 8 (Blackmun, Brennan, Burger, Douglas,

Marshall, Powell, Stewart, White)
OPINION OF THE COURT: Burger

NOT PARTICIPATING: Rehnquist
Facts:
This case was one of many court actions spawned
by the Watergate scandal, which began on June
17, 1972, when seven men broke into the
Democratic National Committee headquarters
located in the Watergate complex in Washington,
D.C. The men were apprehended and charged with
criminal offenses. All had ties either to the White
House or to the Committee to Re-elect the
President. Five of the seven pleaded guilty, and
two were convicted. At the end of the trial, one of
the defendants, James McCord Jr., claimed that he
had been pressured to plead guilty and that other
people involved in the break-in had not been
prosecuted. Many suspected that the break-in was
only the tip of a very large iceberg of shady
dealings and cover-ups perpetrated by influential
persons with close ties to the Nixon
administration.
On May 17, 1973, the Senate began its

investigation of the Watergate incident and the
activities related to it. The star witness was John
Dean III, special counsel to the president, who
testified under a grant of immunity. Dean
implicated high officials in the president’s office,
and he claimed that Nixon had known about the
events and the subsequent cover-ups. As
surprising as Dean’s allegations were, the most
shocking revelation came from Nixon adviser
Alexander Butterfield, who testified that the
president had installed a secret taping system that
automatically recorded all conversations in the
Oval Office. Obviously, the tape recordings held
information that would settle the dispute between
the witnesses claiming White House involvement
in the Watergate affair and the administration
officials who denied it.
In addition to the Senate investigation, a special

prosecutor (today called a special counsel) was
appointed to look into the Watergate affair. The
first person to hold this position, Archibald Cox,
asked the president to turn over the tapes. When
Nixon declined, Cox went to court to get an order
compelling him to deliver the materials. The
district and appeals courts ruled in favor of Cox.
Nixon then offered to release summaries of the
recordings, but that did not satisfy Cox, who
continued to pursue the tapes. In response, Nixon
ordered that Cox be fired. When the two highest
officials in the Justice Department resigned rather
than comply with Nixon’s order, Solicitor General
Robert Bork became the acting attorney general
and dismissed Cox. The firing and resignations,
popularly known as the “Saturday night
massacre,” enraged the American people, and
many began calling for the president’s
impeachment.
Leon Jaworski was appointed to take Cox’s place.

An attorney from Houston, Jaworski pursued the
tapes with the same zeal as had Cox. Finally,
Nixon relented and agreed to produce some of the
materials. But when he did so the prosecutor
found that the tapes had been heavily edited. One
contained eighteen and one-half minutes of
mysterious buzzing at a crucial point, indicating
that conversation had been erased.
Jaworski obtained criminal indictments against
several Nixon aides. Although no criminal charges
were brought against the president, he was named
in the indictment as a co-conspirator. At about the
same time, the House Judiciary Committee began
an investigation into whether the president should
be impeached.
The Judiciary Committee and Jaworski sought

more of the tapes to review, but Nixon steadfastly
refused to comply, claiming that it was his right
under executive privilege to decide what would be
released and what would remain secret. The
district court issued a final subpoena duces tecum,
an order to produce the tapes and other
documents. Both the United States and Nixon
requested that the Supreme Court review the
case, and the justices accepted the case on an
expedited basis, bypassing the court of appeals.
Arguments:
For the petitioner, United States:
Courts, not the president, have final authority
to determine the applicability and scope of
claims of executive privilege.
The framers deliberately created a system in
which the president is not above the law;
therefore, the president is subject to judicial
orders requiring compliance with his clearly
defined legal duty as a citizen of the United
States.
Qualified executive privilege exists to protect
only the legitimate functioning of the
government. In this case, there is a compelling
public interest in disclosure that outweighs any
possible benefit that executive privilege may
bring to the functioning of government.
For the respondent, Richard

Nixon:
Executive privilege is inherent in the executive
power. The president has a duty to faithfully
execute the laws, which cannot be done
without executive privilege to preserve the
integrity of deliberations in the executive
office.
The doctrine of separation of powers dictates
that each branch should be free of coercive
control by the other branches. It follows that
the judicial branch cannot compel production
of material from the executive branch when
the president has a privilege that he can
exercise at his own discretion.
Presidential conversations are presumptively
privileged, unless there is a showing that the
materials are critical evidence with no effective
substitute. The special prosecutor has not
shown a compelling need for disclosure.
Mr. Chief Justice Burger Delivered the

[W]e turn to the claim that the subpoena should

be quashed because it demands “confidential
conversations between a President and his close
advisors that it would be inconsistent with the
public interest to produce.” The first contention is
a broad claim that the separation of powers
doctrine precludes judicial review of a President’s
claim of privilege. The second contention is that if
he does not prevail on the claim of absolute
privilege, the court should hold as a matter of
constitutional law that the privilege prevails over
the subpoena duces tecum.
This subpoena duces tecum was issued July 23,

1973. It ordered President Nixon or his
representatives to appear before the federal grand
jury on July 26 and to bring taped conversations
relevant to the investigation of the Watergate
affair.
Courtesy of NARA
This drawing illustrates Richard Nixon’s attorney,

James St. Clair, arguing the president’s case
before the Supreme Court in United States v.
Nixon (1974). The four justices are (left to right)
Chief Justice Warren Burger, William J. Brennan
Jr., Byron R. White, and Harry A. Blackmun. The
empty chair at the far right belongs to Justice
William H. Rehnquist, who recused himself
because of his former duties as assistant attorney
general in the Nixon administration.
© Bettmann/CORBIS
With this one-sentence letter Richard Nixon

became the first American president to resign
from office.
Courtesy of NARA
In the performance of assigned constitutional

duties each branch of the Government must
initially interpret the Constitution, and the
interpretation of its powers by any branch is due
great respect from the others. The President’s
counsel, as we have noted, reads the Constitution
as providing an absolute privilege of
confidentiality for all Presidential
communications. Many decisions of this Court,
however, have unequivocally reaffirmed the
holding of Marbury v. Madison (1803) that “[i]t is
emphatically the province and duty of the judicial
department to say what the law is.” . . .
Notwithstanding the deference each branch must

accord the others, the “judicial Power of the
United States” vested in the federal courts by Art.
III, §1, of the Constitution can no more be shared
with the Executive Branch than the Chief
Executive, for example, can share with the
Judiciary the veto power, or the Congress share
with the Judiciary the power to override a
Presidential veto. Any other conclusion would be
contrary to the basic concept of separation of
powers and the checks and balances that flow
from the scheme of a tripartite government. We
therefore reaffirm that it is the province and duty
of this Court “to say what the law is” with respect
to the claim of privilege presented in this case.
In support of his claim of absolute privilege, the

President’s counsel urges two grounds, one of
which is common to all governments and one of
which is peculiar to our system of separation of
powers. The first ground is the valid need for
protection of communications between high
Government officials and those who advise and
assist them in the performance of their manifold
duties; the importance of this confidentiality is too
plain to require further discussion. Human
experience teaches that those who expect public
dissemination of their remarks may well temper
candor with a concern for appearances and for
their own interests to the detriment of the
decision making process. Whatever the nature of
the privilege of confidentiality of Presidential
communications in the exercise of Art. II powers,
the privilege can be said to derive from the
supremacy of each branch within its own assigned
area of constitutional duties. Certain powers and
privileges flow from the nature of enumerated
powers; the protection of the confidentiality of
Presidential communications has similar
constitutional underpinnings.
The second ground asserted by the President’s
counsel in support of the claim of absolute
privilege rests on the doctrine of separation of
powers. Here it is argued that the independence
of the Executive Branch within its own sphere
insulates a President from a judicial subpoena in
an ongoing criminal prosecution, and thereby
protects confidential Presidential communications.
However, neither the doctrine of separation of

powers, nor the need for confidentiality of high-
level communications, without more, can sustain
an absolute, unqualified Presidential privilege of
immunity from judicial process under all
circumstances. The President’s need for complete
candor and objectivity from advisers calls for
great deference from the courts. However, when
the privilege depends solely on the broad,
undifferentiated claim of public interest in the
confidentiality of such conversations, a
confrontation with other values arises. Absent a
claim of need to protect military, diplomatic, or
sensitive national security secrets, we find it
difficult to accept the argument that even the very
important interest in confidentiality of Presidential
communications is significantly diminished by
production of such material for in camera
inspection with all the protection that a district
court will be obliged to provide.
The impediment that an absolute, unqualified

privilege would place in the way of the primary
constitutional duty of the Judicial Branch to do
justice in criminal prosecutions would plainly
conflict with the function of the courts under Art.
III. In designing the structure of our Government
and dividing and allocating the sovereign power
among three co-equal branches, the Framers of
the Constitution sought to provide a
comprehensive system, but the separate powers
were not intended to operate with absolute
independence. . . . To read the Art. II powers of
the President as providing an absolute privilege as
against a subpoena essential to enforcement of
criminal statutes on no more than a generalized
claim of the public interest in confidentiality of
nonmilitary and nondiplomatic discussions would
upset the constitutional balance of “a workable
government” and gravely impair the role of the
courts under Art. III.
Since we conclude that the legitimate needs of the

judicial process may outweigh Presidential
privilege, it is necessary to resolve those
competing interests in a manner that preserves
the essential functions of each branch. The right
and indeed the duty to resolve that question does
not free the Judiciary from according high respect
to the representations made on behalf of the
President.
The expectation of a President to the

confidentiality of his conversations and
correspondence, like the claim of confidentiality of
judicial deliberations, for example, has all the
values to which we accord deference for the
privacy of all citizens and, added to those values,
is the necessity for protection of the public
interest in candid, objective, and even blunt or
harsh opinions in Presidential decisionmaking. A
President and those who assist him must be free
to explore alternatives in the process of shaping
policies and making decisions and to do so in a
way many would be unwilling to express except
privately. These are the considerations justifying a
presumptive privilege for Presidential
communications. The privilege is fundamental to
the operation of Government and inextricably
rooted in the separation of powers under the
Constitution. . . .
But this presumptive privilege must be considered

in light of our historic commitment to the rule of
law. This is nowhere more profoundly manifest
than in our view that “the twofold aim [of criminal
justice] is that guilt shall not escape or innocence
suffer.” We have elected to employ an adversary
system of criminal justice in which the parties
contest all issues before a court of law. The need
to develop all relevant facts in the adversary
system is both fundamental and comprehensive.
The ends of criminal justice would be defeated if
judgments were to be founded on a partial or
speculative presentation of the facts. The very
integrity of the judicial system and public
confidence in the system depend on full disclosure
of all the facts, within the framework of the rules
of evidence. To ensure that justice is done, it is
imperative to the function of courts that
compulsory process be available for the
production of evidence needed either by the
prosecution or by the defense. . . .
In this case the President challenges a subpoena

served on him as a third party requiring the
production of materials for use in a criminal
prosecution; he does so on the claim that he has a
privilege against disclosure of confidential
communications. He does not place his claim of
privilege on the ground they are military or
diplomatic secrets. As to these areas of Art. II
duties the courts have traditionally shown the
utmost deference to Presidential responsibilities. .
. . No case of the Court, however, has extended
this high degree of deference to a President’s
generalized interest in confidentiality. Nowhere in
the Constitution, as we have noted earlier, is there
any explicit reference to a privilege of
confidentiality, yet to the extent this interest
relates to the effective discharge of a President’s
powers, it is constitutionally based.
The right to the production of all evidence at a

criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly
confers upon every defendant in a criminal trial
the right “to be confronted with the witnesses
against him” and “to have compulsory process for
obtaining witnesses in his favor.” Moreover, the
Fifth Amendment also guarantees that no person
shall be deprived of liberty without due process of
law. It is the manifest duty of the courts to
vindicate those guarantees, and to accomplish
that it is essential that all relevant and admissible
evidence be produced.
In this case we must weigh the importance of the

general privilege of confidentiality of Presidential
communications in performance of the President’s
responsibilities against the inroads of such a
privilege on the fair administration of criminal
justice. The interest in preserving confidentiality
is weighty indeed and entitled to great respect.
However, we cannot conclude that advisers will be
moved to temper the candor of their remarks by
the infrequent occasions of disclosure because of
the possibility that such conversations will be
called for in the context of a criminal prosecution.
On the other hand, the allowance of the privilege

to withhold evidence that is demonstrably relevant
in a criminal trial would cut deeply into the
guarantee of due process of law and gravely
impair the basic function of the courts. A
President’s acknowledged need for confidentiality
in the communications of his office is general in
nature, whereas the constitutional need for
production of relevant evidence in a criminal
proceeding is specific and central to the fair
adjudication of a particular criminal case in the
administration of justice. Without access to
specific facts a criminal prosecution may be totally
frustrated. The President’s broad interest in
confidentiality of communications will not be
vitiated by disclosure of a limited number of
conversations preliminarily shown to have some
bearing on the pending criminal cases.
We conclude that when the ground for asserting

privilege as to subpoenaed materials sought for
use in a criminal trial is based only on the
generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due
process of law in the fair administration of
criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial. . . .
Accordingly, we affirm the order of the District

Court that subpoenaed materials be transmitted to
that court. We now turn to the important question
of the District Court’s responsibilities in
conducting the in camera [in private in the judge’s
chambers] examination of Presidential materials
or communications delivered under the
compulsion of the subpoena duces tecum . . .
[I]t is obvious that the District Court has a very

heavy responsibility to see to it that Presidential
conversations, which are either not relevant or not
admissible, are accorded that high degree of
respect due the President of the United States . . .
[The] President is [not] above the law, but . . . [his]
President’s communications and activities
encompass a vastly wider range of sensitive
material than would be true of any “ordinary
individual.” It is therefore necessary in the public
interest to afford Presidential confidentiality the
greatest protection consistent with the fair
administration of justice.
Since this matter came before the Court during

the pendency of a criminal prosecution, and on
representations that time is of the essence, the
mandate shall issue forthwith.
Affirmed
The Court’s ruling was clear. In this case, the

people’s interest in the fair administration of
criminal justice outweighed the president’s interest
in confidentiality. Executive privilege was rejected as
a justification for refusing to make the tapes
available to the special prosecutor. The opinion,
however, does not answer questions about exactly
who can invoke executive privilege or how long the
privilege would be in effect, if at all. Based on the
majority’s logic, do you think former presidents,
high-ranking executive aides, or even the spouses of
presidents could invoke executive privilege?
Nixon complied with the Court’s ruling, knowing full

well that it meant the end of his presidency. In
obeying the Court order, he avoided provoking what
many feared would be the most serious of all
constitutional confrontations. What if Nixon had
refused to comply? What if he had destroyed the
tapes rather than turn them over? Who could have
enforced sanctions on the president for doing so?
Impeachment and conviction of the president
probably would have been the only way to handle
such a crisis. Whatever Nixon’s culpability in
Watergate and related matters, he spared the nation
a crisis by bowing to the Supreme Court’s
interpretation of the Constitution. The Nixon tapes
revealed substantial wrongdoing. It was clear that
the House of Representatives would present articles
of impeachment and the Senate would vote to
remove Nixon from office. Rather than put himself
and the nation through such an ordeal, Nixon
resigned.
Immunity: Protecting the

President from Lawsuits
Presidential immunity is a variation on the notion of
executive privilege. It deals with the extent to which
the president is protected from lawsuits while in
office, and the subject raises many interesting
questions. May a president be ordered by a court to
carry out certain executive actions, which are
discretionary, or ministerial actions, which are
performed as a matter of legal duty? Or conversely,
may a president be restrained by a court from taking
such actions? May a private party sue the president
for damages that might have been suffered because
of the president’s actions or omissions? If so, may a
court order the president to pay damages or provide
some other restitution? If a doctrine of immunity
exists, should it extend only to actions taken by
presidents while in office? These questions place us
in a quandary. To grant the president immunity from
such legal actions may remove needed
accountability. But to allow the chief executive to be
subject to suit could make the execution of
presidential duties impossible.
The Supreme Court’s first significant venture into

the area of executive immunity came in the
aftermath of the Civil War. In Mississippi v. Johnson
(1867), the Court was asked to enjoin the president
from executing laws passed by Congress on the
ground that the laws were unconstitutional. The
justices unanimously concluded that the president
was immune from such suits. Is this conclusion
reasonable? Does the Court’s distinction between
executive and ministerial acts make sense? To what
degree do you think the Court was responding to the
political conditions of the times? Following Scott v.
Sandford (1857), holding that former or freed slaves
were not American citizens (excerpted in Chapter 6),
the Court’s prestige was at an all-time low, and
congressional power was overwhelmingly dominant.
Was the Court’s decision in Mississippi v. Johnson
just a convenient way for the justices to avoid an
unwinnable conflict with Congress?
Vice President Andrew Johnson, who had earlier

served as a Democratic senator from Tennessee,
assumed the presidency upon the assassination of
Abraham Lincoln. Johnson’s administration was
characterized by fierce battles with the Radical
Republicans in Congress. This conflict spawned
several legal disputes, including Mississippi v.
Johnson (1867), and led to the president’s near
removal from office.
Library of Congress
Mississippi v. Johnson 71 U.S. (4 WALL.) 475

(1867)
court/71/475.html

Nelson, Swayne, Wayne)
OPINION OF THE COURT: Chase
Facts:
Following the Civil War, Congress passed a
number of laws “for the more efficient government
of the rebel states.” Commonly known as the
Reconstruction Acts of 1867, these laws imposed
military rule over the Southern states until such
time as loyal Republican governments could be
established. Andrew Johnson, a Southerner from
Tennessee, who had assumed the presidency after
Lincoln’s assassination, vetoed the legislation, but
the Radical Republicans in Congress had sufficient
votes to override him. Once the acts were part of
federal law, the president had little choice but to
enforce them, despite his belief that they were
unconstitutional.
The state of Mississippi joined the fray. Applying

directly to the Supreme Court, Mississippi sued
Johnson, asking the justices to issue an order
prohibiting him from enforcing the laws, which
the state argued were unconstitutional.
Arguments:
For the petitioner, State of Mississippi:
The president is not and should not be above

the law. The Constitution gives the federal
courts judicial power over all cases arising
under the Constitution and makes no
distinction as to the parties.
In Marbury v. Madison the Court held that the
secretary of state was subject to legal process
for actions taken on behalf of the president. If
the subordinate is liable for the acts of his
principal, it follows that the principal should
also be subject to the same legal process.
The president was performing a purely
ministerial action because there was no
exercise of discretion in carrying out an act of
Congress. Although, as the Court held in
Marbury, the courts cannot control the actions
of officers in discretionary duties, the executive
is not above the law with regard to ministerial
duties.
For the respondent, President

Andrew Johnson:
The president is the best judge of his duties to
faithfully execute the laws, and the Court
should not interfere and tell him what his duty
is and compel him to perform it.
The president cannot be treated as any other
citizen in the legal process. The legal process,
taken to its limits, could result in the president
being imprisoned and the country left in
turmoil.
This case is distinguishable from any case
involving subordinate executive officers
because subordinate officers are easily
reappointed and disruption to those offices
would not disrupt the entire government.
The president is beyond the control of any
other branch of the government, and, under
the Constitution, can be tried only by Congress.
Only if he has been impeached can he appear
before the courts—and then as an individual,
not as a representative of the people.
The Chief Justice Delivered the Opinion of the

Court.
The single point which requires consideration is

this: Can the President be restrained by injunction
from carrying into effect an act of Congress
alleged to be unconstitutional?
It is assumed by the counsel for the State of

Mississippi, that the President, in the execution of
the Reconstruction Acts, is required to perform a
mere ministerial duty. In this assumption there is,
we think, a confounding of the terms ministerial
and executive, which are by no means equivalent
in import.
A ministerial duty, the performance of which may,

in proper cases, be required of the head of a
department, by judicial process, is one in respect
to which nothing is left to discretion. It is a simple,
definite duty, arising under conditions admitted or
proved to exist, and imposed by law.
The case of Marbury v. Madison, Secretary of

State, furnishes an illustration. A citizen had been
nominated, confirmed, and appointed a justice of
the peace for the District of Columbia, and his
commission had been made out, signed, and
sealed. Nothing remained to be done except
delivery, and the duty of delivery was imposed by
law on the Secretary of State. It was held that the
performance of this duty might be enforced by
mandamus issuing from a court having jurisdiction
...
In [Marbury] nothing was left to discretion. There

was no room for the exercise of judgment. The law
required the performance of a single specific act;
and that performance, it was held, might be
required by mandamus.
Very different is the duty of the President in the

exercise of the power to see that the laws are
faithfully executed, and among these laws the acts
named in the bill. By the first of these acts he is
required to assign generals to command in the
several military districts, and to detail sufficient
military force to enable such officers to discharge
their duties under the law. By the supplementary
act, other duties are imposed on the several
commanding generals, and these duties must
necessarily be performed under the supervision of
the President as commander-in-chief. The duty
thus imposed on the President is in no just sense
ministerial. It is purely executive and political.
An attempt on the part of the judicial department

of the government to enforce the performance of
such duties by the President might be justly
characterized, in the language of Chief Justice
Marshall, as “an absurd and excessive
extravagance.”
It is true that in the instance before us the

interposition of the court is not sought to enforce
action by the Executive under constitutional
legislation, but to restrain such action under
legislation alleged to be unconstitutional. But we
are unable to perceive that this circumstance
takes the case out of the general principles which
forbid judicial interference with the exercise of
Executive discretion.
It was admitted in the argument that the

application now made to us is without a
precedent; and this is of much weight against it. . .
.
The fact that no such application was ever before

made in any case indicates the general judgment
of the profession that no such application should
be entertained.
It will hardly be contended that Congress can

interpose, in any case, to restrain the enactment
of an unconstitutional law; and yet how can the
right to judicial interposition to prevent such an
enactment, when the purpose is evident and the
execution of that purpose certain, be
distinguished, in principle, from the right to such
interposition against the execution of such a law
by the President?
The Congress is the legislative department of the

government; the President is the executive
department. Neither can be restrained in its
action by the judicial department; though the acts
of both, when performed, are, in proper cases,
subject to its cognizance.
The impropriety of such interference will be

clearly seen upon consideration of its possible
consequences.
Suppose the bill filed and the injunction prayed for

be allowed. If the President refuse obedience, it is
needless to observe that the court is without
power to enforce its process. If, on the other hand,
the President complies with the order of the court
and refuses to execute the acts of Congress, is it
not clear that a collision may occur between the
executive and legislative departments of the
government? May not the House of
Representatives impeach the President for such
refusal? And in that case could this court
interfere, in behalf of the President, thus
endangered by compliance with its mandate, and
restrain by injunction the Senate of the United
States from sitting as a court of impeachment?
Would the strange spectacle be offered to the
public world of an attempt by this court to arrest
proceedings in that court?
These questions answer themselves.
It is true that a State may file an original bill in

this court. And it may be true, in some cases, that
such a bill may be filed against the United States.
But we are fully satisfied that this court has no
jurisdiction of a bill to enjoin the President in the
performance of his official duties; and that no such
bill ought to be received by us.
It has been suggested that the bill contains a

prayer that, if the relief sought cannot be had
against Andrew Johnson, as President, it may be
granted against Andrew Johnson as a citizen of
Tennessee. But it is plain that relief as against the
execution of an act of Congress by Andrew
Johnson, is relief against its execution by the
President. A bill praying an injunction against the
execution of an act of Congress by the incumbent
of the presidential office cannot be received,
whether it describes him as President or as a
citizen of a State.
The motion for leave to file the bill is, therefore,
Denied.
The holding in this case is plain. The president of the

United States cannot be sued to prevent the carrying
out of “purely executive and political” functions. But
the Supreme Court has allowed suits against the
actions of lower-ranking executive officials. The very
next year, the Court heard Georgia v. Stanton (1868),
in which an injunction was sought to stop the
secretary of war from enforcing the Reconstruction
Acts. This suit also was unsuccessful, but it was
decided on entirely different grounds—that it raised
a political question. The Court found no bar to suing
an executive branch administrator, even at the
cabinet level.
The decision in Johnson settled the issue of whether

the president may be sued as a person or as
president with respect to executive functions, but it
did not answer the question of civil suits brought by
private individuals who claim harm by a president’s
actions. If an incumbent president engages in
activities that allegedly cause damages to private
individuals, may the president be held accountable
in a court of law? Or is the president immune from
such suits? President Nixon found himself the object
of such involving the dismissal of a federal employee.
While reading the following decision, consider the
differences between the absolute immunity rule
articulated by Justice Lewis F. Powell Jr. and the
approach advocated in Justice Byron White’s
dissenting opinion—that the scope of immunity is
determined by function, not office.
Ernest Fitzgerald sued President Richard Nixon

after he was fired from his civilian job with the U.S.
Air Force. Years later, the Supreme Court ruled
against Fitzgerald.
Ricardo Watson
Nixon v. Fitzgerald 457 U.S. 731 (1982)
court/457/731.html

Vote: 5 (Burger, O’Connor, Powell, Rehnquist,

Stevens)
4 (Blackmun, Brennan, Marshall, White)
OPINION OF THE COURT: Powell

CONCURRING OPINION: Burger
DISSENTING OPINIONS: Blackmun, White
Facts:
A. Ernest Fitzgerald was a civilian management
analyst for the U.S. Air Force. In November 1968
Fitzgerald testified before a congressional
committee chaired by Senator William Proxmire
(D-Wis.). Fitzgerald reported that cost overruns
for the C-5A transport plane might reach as high
as $2 billion. In addition, he spoke about the
technical problems the manufacturer had
encountered in producing the aircraft. Needless to
say, Fitzgerald’s testimony was not well received
by the Department of Defense or military
contractors.
Thirteen months later, in January 1970, Fitzgerald

was removed from his job on the ground that a
department reorganization had made a reduction
in staff necessary. Fitzgerald believed he was fired
in retaliation for his congressional appearance.
The dismissal caused a great deal of concern
among members of Congress, and Fitzgerald’s
story was widely reported in the media.
The question was whether the Nixon

administration was trying to get rid of a
troublemaking whistle-blower. At a press
conference, the president said that he would look
into the matter, and there appeared to be some
attempt to find Fitzgerald another government
position. That effort failed, perhaps because of an
internal memorandum circulated by presidential
aide Alexander Butterfield in which he concluded,
“Fitzgerald is no doubt a topnotch cost expert, but
he must be given very low marks in loyalty; and
after all, loyalty is the name of the game. . . . [W]e
should let him bleed, for a while at least.”
Denied another government job, Fitzgerald began

legal action, first complaining to the Civil Service
Commission and then filing a suit for damages.
When asked about the Fitzgerald matter,
President Nixon responded, “I was totally aware
that Mr. Fitzgerald would be fired or discharged
or asked to resign. I approved it. . . . No, this was
not a case of some person down the line deciding
he should go. It was a decision that was submitted
to me. I made it and I stick by it.” The next day the
president’s office retracted his statements,
explaining that Nixon had confused Fitzgerald
with someone else. But, as revealed in the
Watergate tapes, Nixon boasted privately that he
gave the order to “get rid of that son of a bitch.”
Fitzgerald’s lawsuit was against a number of

federal executive branch officials, including Nixon,
who had resigned during the early stages of the
lower court proceedings. Nixon’s lawyers asserted
that the former president should be removed from
the suit on the ground of absolute executive
immunity from legal actions based on his official
conduct. The lower courts rejected the absolute
immunity claim, and Nixon appealed.
Arguments:
For the petitioner, Richard Nixon:
The framers intended to give the president

absolute immunity from civil damage. The
framers purposely chose to rely on checks and
balances, public opinion, and the possibility of
impeachment, instead of civil liability, to
restrain the executive.
The president’s visibility makes him a
vulnerable target for lawsuits filed for political
motives.
The separation of powers system justifies
absolute immunity. The president needs to be
free from judicial oversight to keep executive
deliberations confidential and preserve the
integrity of the office. Anything less than
absolute immunity would overly involve courts
in executive decision making.
For the respondent, A. Ernest

Fitzgerald:
Supreme Court precedent regarding state
governors and cabinet officers dictates that
qualified immunity applies only where it is
functionally required, depending on the
circumstances of each case. Immunity is
dependent on functions of an office, not on the
title of the office.
The checks and balances system counsels
against absolute immunity. If the president
were absolutely immune, Congress would lose
a reliable source of information on the
activities of the executive branch, and the
courts would not be able to protect individuals
whose rights have been trampled by the
president.
Even if absolute immunity is available to the
president, he must first show that he was
acting within the scope of his authority. The
president has failed to justify that he has
constitutional power to remove inferior officers
who were appointed by the head of a
department.
Justice Powell Delivered the Opinion of the

Court.
This case now presents the claim that the

President of the United States is shielded by
absolute immunity from civil damages liability. . . .
Because the Presidency did not exist through most
of the development of common law, any historical
analysis must draw its evidence primarily from our
constitutional heritage and structure. Historical
inquiry thus merges almost at its inception with
the kind of “public policy” analysis appropriately
undertaken by a federal court. This inquiry
involves policies and principles that may be
considered implicit in the nature of the President’s
office in a system structured to achieve effective
government under a constitutionally mandated
separation of powers . . .
Applying the principles of our cases to claims of

this kind, we hold that petitioner, as a former
President of the United States, is entitled to
absolute immunity from damages liability
predicated on his official acts. We consider this
immunity a functionally mandated incident of the
President’s unique office, rooted in the
constitutional tradition of the separation of powers
and supported by our history. . . .
The President occupies a unique position in the

constitutional scheme. Article II, §1, of the
Constitution provides that “[t]he executive Power
shall be vested in a President of the United States.
. . .” This grant of authority establishes the
President as the chief constitutional officer of the
Executive Branch, entrusted with supervisory and
policy responsibilities of utmost discretion and
sensitivity. These include the enforcement of
federal law—it is the President who is charged
constitutionally to “take Care that the Laws be
faithfully executed”; the conduct of foreign affairs
—a realm in which the Court has recognized that
“[i]t would be intolerable that courts, without the
relevant information, should review and perhaps
nullify actions of the Executive taken on
information properly held secret”; and
management of the Executive Branch—a task for
which “imperative reasons requir[e] an
unrestricted power [in the President] to remove
the most important of his subordinates in their
most important duties.”
In arguing that the President is entitled only to

qualified immunity, the respondent relies on cases
in which we have recognized immunity of this
scope for governors and cabinet officers. We find
these cases to be inapposite. The President’s
unique status under the Constitution distinguishes
him from other executive officials.
Because of the singular importance of the

President’s duties, diversion of his energies by
concern with private lawsuits would raise unique
risks to the effective functioning of government.
[A] President must concern himself with matters
likely to “arouse the most intense feelings.” Yet . .
. it is in precisely such cases that there exists the
greatest public interest in providing an official
“the maximum ability to deal fearlessly and
impartially with” the duties of his office. This
concern is compelling where the officeholder must
make the most sensitive and far-reaching
decisions entrusted to any official under our
constitutional system. Nor can the sheer
prominence of the President’s office be ignored. In
view of the visibility of his office and the effect of
his actions on countless people, the President
would be an easily identifiable target for suits for
civil damages. Cognizance of this personal
vulnerability frequently could distract a President
from his public duties, to the detriment of not only
the President and his office but also the Nation
that the Presidency was designed to serve.
Courts traditionally have recognized the

President’s constitutional responsibilities and
status as factors counseling judicial deference and
restraint. For example, . . . we have recognized
that the Presidential privilege is “rooted in the
separation of powers under the Constitution.”
United States v. Nixon [1974]. It is settled law that
the separation-of-powers doctrine does not bar
every exercise of jurisdiction over the President of
the United States. But our cases also have
established that a court, before exercising
jurisdiction, must balance the constitutional
weight of the interest to be served against the
dangers of intrusion on the authority and
functions of the Executive Branch. When judicial
action is needed to serve broad public interests—
as when the Court acts, not in derogation of the
separation of powers, but to maintain their proper
balance, or to vindicate the public interest in an
ongoing criminal prosecution—the exercise of
jurisdiction has been held warranted. In the case
of this merely private suit for damages based on a
President’s official acts, we hold it is not.
In defining the scope of an official’s absolute

privilege, this Court has recognized that the
sphere of protected action must be related closely
to the immunity’s justifying purposes. Frequently
our decisions have held that an official’s absolute
immunity should extend only to acts in
performance of particular functions of his office.
But the Court also has refused to draw functional
lines finer than history and reason would support.
In view of the special nature of the President’s
constitutional office and functions, we think it
appropriate to recognize absolute Presidential
immunity from damages liability for acts within
the “outer perimeter” of his official responsibility.
Under the Constitution and laws of the United

States the President has discretionary
responsibilities in a broad variety of areas, many
of them highly sensitive. In many cases it would be
difficult to determine which of the President’s
innumerable “functions” encompassed a particular
action. In this case, for example, respondent
argues that he was dismissed in retaliation for his
testimony to Congress. The Air Force, however,
has claimed that the underlying reorganization
was undertaken to promote efficiency. Assuming
that petitioner Nixon ordered the reorganization
in which respondent lost his job, an inquiry into
the President’s motives could not be avoided
under the kind of “functional” theory asserted
both by respondent and the dissent. Inquiries of
this kind could be highly intrusive. . . .
A rule of absolute immunity for the President will

not leave the Nation without sufficient protection
against misconduct on the part of the Chief
Executive. There remains the constitutional
remedy of impeachment. In addition, there are
formal and informal checks on Presidential action
that do not apply with equal force to other
executive officials. The President is subjected to
constant scrutiny by the press. Vigilant oversight
by Congress also may serve to deter Presidential
abuses of office, as well as to make credible the
threat of impeachment. Other incentives to avoid
misconduct may include a desire to earn
reelection, the need to maintain prestige as an
element of Presidential influence, and a
President’s traditional concern for his historical
stature.
The existence of alternative remedies and

deterrents establishes that absolute immunity will
not place the President “above the law.” For the
President, as for judges and prosecutors, absolute
immunity merely precludes a particular private
remedy for alleged misconduct in order to
advance compelling public ends.
For the reasons stated in this opinion, the decision

of the Court of Appeals is reversed, and the case is
remanded for action consistent with this opinion.
So ordered.

JUSTICE BRENNAN, JUSTICE
MARSHALL, and JUSTICE
BLACKMUN join, dissenting.
The four dissenting Members of the Court in Butz
v. Economou (1978) argued that all federal
officials are entitled to absolute immunity from
suit for any action they take in connection with
their official duties. That immunity would extend
even to actions taken with express knowledge that
the conduct was clearly contrary to the controlling
statute or clearly violative of the Constitution.
Fortunately, the majority of the Court rejected that
approach: We held that although public officials
perform certain functions that entitle them to
absolute immunity, the immunity attaches to
particular functions—not to particular offices.
Officials performing functions for which immunity
is not absolute enjoy qualified immunity; they are
liable in damages only if their conduct violated
well-established law and if they should have
realized that their conduct was illegal.
The Court now applies the dissenting view in Butz

to the Office of the President: A President, acting
within the outer boundaries of what Presidents
normally do, may, without liability, deliberately
cause serious injury to any number of citizens
even though he knows his conduct violates a
statute or tramples on the constitutional rights of
those who are injured. . . .
In declaring the President to be absolutely
immune from suit for any deliberate and knowing
violation of the Constitution or of a federal statute,
the Court asserts that the immunity is “rooted in
the constitutional tradition of the separation of
powers and supported by our history.” The
decision thus has all the earmarks of a
constitutional pronouncement—absolute immunity
for the President’s office is mandated by the
Constitution. [I]t is difficult to read the opinion
coherently as standing for any narrower
proposition: Attempts to subject the President to
liability either by Congress through a statutory
action or by the courts . . . would violate the
separation of powers. Such a generalized absolute
immunity cannot be sustained when examined in
the traditional manner and in light of the
traditional judicial sources. . . .
The functional approach to the separation-of-

powers doctrine and the Court’s more recent
immunity decisions converge on the following
principle: The scope of immunity is determined by
function, not office. The wholesale claim that the
President is entitled to absolute immunity in all of
his actions stands on no firmer ground than did
the claim that all Presidential communications are
entitled to an absolute privilege, which was
rejected in favor of a functional analysis, by a
unanimous Court in United States v. Nixon (1974).
Therefore, whatever may be true of the necessity
of such a broad immunity in certain areas of
executive responsibility, the only question that
must be answered here is whether the dismissal of
employees falls within a constitutionally assigned
executive function, the performance of which
would be substantially impaired by the possibility
of a private action for damages. I believe it does
not. . . .
[P]ersonnel decisions of the sort involved in this

case are emphatically not a constitutionally
assigned Presidential function that will tolerate no
interference by either of the other two branches of
Government.
Focusing on the actual arguments the majority

offers for its holding of absolute immunity for the
President, one finds surprisingly little. As I read
the relevant section of the Court’s opinion, I find
just three contentions from which the majority
draws this conclusion. Each of them is little more
than a makeweight; together they hardly suffice to
justify the wholesale disregard of our traditional
approach to immunity questions.
First, the majority informs us that the President

occupies a “unique position in the constitutional
scheme,” including responsibilities for the
administration of justice, foreign affairs, and
management of the Executive Branch. True as this
may be, it says nothing about why a “unique” rule
of immunity should apply to the President. . . .
Second, the majority contends that because the

President’s “visibility” makes him particularly
vulnerable to suits for civil damages, a rule of
absolute immunity is required. The force of this
argument is surely undercut by the majority’s
admission that “there is no historical record of
numerous suits against the President.” . . .
Finally, the Court suggests that potential liability
“frequently could distract a President from his
public duties.” Unless one assumes that the
President himself makes the countless high-level
executive decisions required in the administration
of government, this rule will not do much to
insulate such decisions from the threat of liability .
. . Furthermore, in no instance have we previously
held legal accountability in itself to be an
unjustifiable cost. The availability of the courts to
vindicate constitutional and statutory wrongs has
been perceived and protected as one of the virtues
of our system of delegated and limited powers. . . .
The majority may be correct in its conclusion that

“[a] rule of absolute immunity . . . will not leave
the Nation without sufficient protection against
misconduct on the part of the Chief Executive.”
Such a rule will, however, leave Mr. Fitzgerald
without an adequate remedy for the harms that he
may have suffered. More importantly, it will leave
future plaintiffs without a remedy, regardless of
the substantiality of their claims. [T]he courts
exist to assure each individual that he, as an
individual, has enforceable rights that he may
pursue to achieve a peaceful redress of his
legitimate grievances.
I find it ironic, as well as tragic, that the Court

would so casually discard its own role of assuring
“the right of every individual to claim the
protection of the laws,” Marbury v. Madison, in
the name of protecting the principle of separation
of powers. Accordingly, I dissent.
In spite of the decisions in Mississippi v. Johnson and
Nixon v. Fitzgerald, presidential immunity issues
continue to appear—with Clinton v. Jones (1997)
being the most recent example.
Clinton was surrounded by political intrigue and

scandal. Paula Corbin Jones, a former state
employee, had sued President Clinton for making
“abhorrent” sexual advances in a Little Rock hotel
room while he was governor of Arkansas. There
were heated public arguments over whether this was
a case of inexcusable sexual harassment or a
groundless, politically motivated lawsuit designed to
undermine and embarrass the president. Political
rhetoric aside, the case presented a major
constitutional issue: Can a sitting president be
required to stand trial on allegations concerning his
unofficial conduct? Jones’s supporters argued that
the president is not immune from lawsuit and that
Jones, like any other citizen, had the right to a
prompt judicial determination on her claims of being
unlawfully treated. Clinton’s supporters argued that
the chief executive should not have to stand trial
during his term of office. Allowing a trial to proceed
would divert the president’s attention from his
official duties; the situation would be made worse by
a potential rash of civil lawsuits following the trial.
The Supreme Court settled the issue on May 27,
1997.
Clinton v. Jones 520 U.S. 681 (1997)

court/520/681.html

Vote: 9 (Breyer, Ginsburg, Kennedy, O’Connor,

Rehnquist, Scalia, Souter, Stevens, Thomas)

CONCURRING OPINION: Breyer
Facts:
Bill Clinton was elected to the presidency in 1992
and reelected in 1996. Before becoming president,
Clinton served as governor of Arkansas from 1979
to 1981 and from 1983 to 1992. In 1994 Paula
Jones filed suit in federal district court in Arkansas
against Clinton and Arkansas state trooper Danny
Ferguson over an incident that was alleged to
have occurred on May 8, 1991, at the Excelsior
Hotel in Little Rock. On the day in question, Jones,
then an employee of the state Industrial
Development Commission, was working at the
registration desk for a management conference at
which Governor Clinton had delivered a speech.
According to her allegations, Ferguson
approached Jones and indicated that the governor
wanted to see her. Ferguson then escorted her to
Clinton’s hotel suite, where Jones and the
governor were left alone. The suit claimed that
Clinton made “abhorrent” sexual advances to
Jones, including exposing himself to her, touching
her inappropriately, and making unwelcome
sexual remarks. Jones said she rejected Clinton’s
suggestions, and he ceased his advances. As she
was leaving the room, Jones alleged, Clinton said
to her: “You are smart. Let’s keep this between
ourselves.”
Jones’s suit claimed that after she returned to her

state job, her superiors began treating her rudely;
she was ultimately transferred to another position
that had little potential for advancement. She
attributed this harsh treatment to retaliation for
her rejection of the governor. The suit asked for
actual damages of $75,000 and punitive damages
of $100,000 in compensation for Clinton’s
violations of state and federal civil rights and
sexual harassment laws.
Clinton denied the allegations and claimed the

lawsuit was politically motivated. He filed motions
asking the district court to dismiss the case on the
ground of presidential immunity and to prohibit
Jones from refiling the suit until after the end of
his presidency. The district judge rejected the
presidential immunity argument. Although she
allowed pretrial discovery activities to proceed,
the judge ordered that no trial would take place
until Clinton was no longer president. Both Jones
and Clinton appealed. Holding that “the President,
like all other government officials, is subject to the
same laws that apply to all other members of
society,” the court of appeals ruled that the trial
should not be postponed. Clinton asked the
Supreme Court to reverse the decision.
At the time, only three sitting presidents had been
defendants in civil litigation involving their actions
prior to taking office: Theodore Roosevelt, Harry
Truman, and John F. Kennedy. All three suits had
been dismissed or settled and so, as the Court
noted, did not shed much “light on the
constitutional issue” in this case.
Arguments:
For the petitioner, William Jefferson
Clinton:
The framers and the Supreme Court have

recognized that the president is unlike any
other public official in that he has the sole
responsibility for an entire branch of the
federal government.
Civil lawsuits would be distracting and
disruptive not only to the president but also to
the entire executive branch. To avoid offending
the principle of separation of powers, judges
should not be in the position of reviewing the
president’s priorities, which are inseparable
from the priorities of the executive branch.
Allowing this lawsuit will invite future lawsuits,
disrupting government affairs even more.
The Court should grant a temporary deferral of
the case, which leaves the president still
accountable for his conduct and does not place
undue burdens on Jones.
Paula Corbin Jones, shown here at a 1998 news

conference, brought a sexual harassment lawsuit
against President Bill Clinton. The suit led the
Supreme Court to confront the question of
whether a president can be tried while still in
office for conduct unrelated to official executive
duties.
AP Photo/Craig Fujii
For the respondent, Paula

Corbin Jones:
There is no precedent for granting presidential
immunity as a purely personal privilege for
lawsuits unrelated to official presidential
duties. Instead, Nixon v. Fitzgerald showed that
presidents are not immune for acts outside
official duties. This case does not involve
executive branch communications or
deliberations that need to be protected for the
integrity of the branch.
The separation of powers doctrine is concerned
with the encroachment or aggrandizement of
one branch at the expense of the other. The
president has not shown that this lawsuit would
have this effect.
Deferral of the case would prolong the
respondent’s subjection to intense media
scrutiny and would not hamper the
effectiveness of the executive branch. The
president has never been expected to
personally execute every law, and presidents
have always had time for personal
commitments, including legal proceedings.

Court.
This case raises a constitutional and a prudential

question concerning the Office of the President of
the United States. Respondent, a private citizen,
seeks to recover damages from the current
occupant of that office based on actions allegedly
taken before his term began. The President
submits that in all but the most exceptional cases
the Constitution requires federal courts to defer
such litigation until his term ends and that, in any
event, respect for the office warrants such a stay.
Despite the force of the arguments supporting the
President’s submissions, we conclude that they
must be rejected. . . .
The principal rationale for affording certain public

servants immunity from suits for money damages
arising out of their official acts is inapplicable to
unofficial conduct. In cases involving prosecutors,
legislators, and judges we have repeatedly
explained that the immunity serves the public
interest in enabling such officials to perform their
designated functions effectively without fear that
a particular decision may give rise to personal
liability. . . .
That rationale provided the principal basis for our

holding that a former President of the United
States was “entitled to absolute immunity from
damages liability predicated on his official acts,”
[Nixon v.] Fitzgerald [1982]. Our central concern
was to avoid rendering the President “unduly
cautious in the discharge of his official duties.”
This reasoning provides no support for an

immunity for unofficial conduct. As we explained
in Fitzgerald, “the sphere of protected action must
be related closely to the immunity’s justifying
purposes.” Because of the President’s broad
responsibilities, we recognized in that case an
immunity from damages claims arising out of
official acts extending to the “outer perimeter of
his authority.” But we have never suggested that
the President, or any other official, has an
immunity that extends beyond the scope of any
action taken in an official capacity.
Moreover, when defining the scope of an immunity

for acts clearly taken within an official capacity,
we have applied a functional approach.
“Frequently our decisions have held that an
official’s absolute immunity should extend only to
acts in performance of particular functions of his
office.” Hence, for example, a judge’s absolute
immunity does not extend to actions performed in
a purely administrative capacity. As our opinions
have made clear, immunities are grounded in “the
nature of the function performed, not the identity
of the actor who performed it.” . . .
Petitioner’s strongest argument supporting his

immunity claim is based on the text and structure
of the Constitution. He does not contend that the
occupant of the Office of the President is “above
the law,” in the sense that his conduct is entirely
immune from judicial scrutiny. The President
argues merely for a postponement of the judicial
proceedings that will determine whether he
violated any law. His argument is grounded in the
character of the office that was created by Article
II of the Constitution, and relies on separation of
powers principles that have structured our
constitutional arrangement since the founding.
As a starting premise, petitioner contends that he

occupies a unique office with powers and
responsibilities so vast and important that the
public interest demands that he devote his
undivided time and attention to his public duties.
He submits that—given the nature of the office—
the doctrine of separation of powers places limits
on the authority of the Federal Judiciary to
interfere with the Executive Branch that would be
transgressed by allowing this action to proceed.
We have no dispute with the initial premise of the

argument. Former presidents, from George
Washington to George Bush, have consistently
endorsed petitioner’s characterization of the
office. . . .
It does not follow, however, that separation of

powers principles would be violated by allowing
this action to proceed. The doctrine of separation
of powers is concerned with the allocation of
official power among the three coequal branches
of our Government. . . .
Of course the lines between the powers of the

three branches are not always neatly defined. But
in this case there is no suggestion that the Federal
Judiciary is being asked to perform any function
that might in some way be described as
“executive.” Respondent is merely asking the
courts to exercise their core Article III jurisdiction
to decide cases and controversies. Whatever the
outcome of this case, there is no possibility that
the decision will curtail the scope of the official
powers of the Executive Branch. The litigation of
questions that relate entirely to the unofficial
conduct of the individual who happens to be the
President poses no perceptible risk of
misallocation of either judicial power or executive
power.
Rather than arguing that the decision of the case

will produce either an aggrandizement of judicial
power or a narrowing of executive power,
petitioner contends that—as a by product of an
otherwise traditional exercise of judicial power—
burdens will be placed on the President that will
hamper the performance of his official duties. . . .
As a factual matter, petitioner contends that this
particular case—as well as the potential additional
litigation that an affirmance of the Court of
Appeals judgment might spawn—may impose an
unacceptable burden on the President’s time and
energy, and thereby impair the effective
performance of his office.
Petitioner’s predictive judgment finds little

support in either history or the relatively narrow
compass of the issues raised in this particular
case. [I]n the more than 200 year history of the
Republic, only three sitting Presidents have been
subjected to suits for their private actions. If the
past is any indicator, it seems unlikely that a
deluge of such litigation will ever engulf the
Presidency. As for the case at hand, if properly
managed by the District Court, it appears to us
highly unlikely to occupy any substantial amount
of petitioner’s time.
Of greater significance, petitioner errs by

presuming that interactions between the Judicial
Branch and the Executive, even quite burdensome
interactions, necessarily rise to the level of
constitutionally forbidden impairment of the
Executive’s ability to perform its constitutionally
mandated functions. . . . The fact that a federal
court’s exercise of its traditional Article III
jurisdiction may significantly burden the time and
attention of the Chief Executive is not sufficient to
establish a violation of the Constitution. Two long-
settled propositions, first announced by Chief
Justice Marshall, support that conclusion.
First, we have long held that when the President

takes official action, the Court has the authority to
determine whether he has acted within the law. . .
.
Second, it is also settled that the President is

subject to judicial process in appropriate
circumstances. Although Thomas Jefferson
apparently thought otherwise, Chief Justice
Marshall, when presiding in the treason trial of
Aaron Burr, ruled that a subpoena duces tecum
could be directed to the President. We
unequivocally and emphatically endorsed
Marshall’s position when we held that President
Nixon was obligated to comply with a subpoena
commanding him to produce certain tape
recordings of his conversations with his aides.
United States v. Nixon (1974). As we explained,
“neither the doctrine of separation of powers, nor
the need for confidentiality of high level
communications, without more, can sustain an
absolute, unqualified Presidential privilege of
immunity from judicial process under all
circumstances.”
Sitting Presidents have responded to court orders

to provide testimony and other information with
sufficient frequency that such interactions
between the Judicial and Executive Branches can
scarcely be thought a novelty. President Monroe
responded to written interrogatories, President
Nixon—as noted above—produced tapes in
response to a subpoena duces tecum, President
Ford complied with an order to give a deposition
in a criminal trial, and President Clinton has twice
given videotaped testimony in criminal
proceedings. Moreover, sitting Presidents have
also voluntarily complied with judicial requests for
testimony. . . .
In sum, “[i]t is settled law that the separation of

powers doctrine does not bar every exercise of
jurisdiction over the President of the United
States.” Fitzgerald. If the Judiciary may severely
burden the Executive Branch by reviewing the
legality of the President’s official conduct, and if it
may direct appropriate process to the President
himself, it must follow that the federal courts have
power to determine the legality of his unofficial
conduct. The burden on the President’s time and
energy that is a mere by product of such review
surely cannot be considered as onerous as the
direct burden imposed by judicial review and the
occasional invalidation of his official actions. We
therefore hold that the doctrine of separation of
powers does not require federal courts to stay all
private actions against the President until he
leaves office. . . .
. . . [W]e are persuaded that it was an abuse of

discretion for the District Court to defer the trial
until after the President leaves office. Such a
lengthy and categorical stay takes no account
whatever of the respondent’s interest in bringing
the case to trial. The complaint was filed within
the statutory limitations period—albeit near the
end of that period—and delaying trial would
increase the danger of prejudice resulting from
the loss of evidence, including the inability of
witnesses to recall specific facts, or the possible
death of a party.
The decision to postpone the trial was,
furthermore, premature. The proponent of a stay
bears the burden of establishing its need. . . . We
think the District Court may have given undue
weight to the concern that a trial might generate
unrelated civil actions that could conceivably
hamper the President in conducting the duties of
his office. If and when that should occur, the
court’s discretion would permit it to manage those
actions in such fashion (including deferral of trial)
that interference with the President’s duties would
not occur. But no such impingement upon the
President’s conduct of his office was shown here.
We add a final comment on two matters that are

discussed at length in the briefs: the risk that our
decision will generate a large volume of politically
motivated harassing and frivolous litigation, and
the danger that national security concerns might
prevent the President from explaining a legitimate
need for a continuance.
We are not persuaded that either of these risks is

serious. Most frivolous and vexatious litigation is
terminated at the pleading stage or on summary
judgment, with little if any personal involvement
by the defendant. Moreover, the availability of
sanctions provides a significant deterrent to
litigation directed at the President in his unofficial
capacity for purposes of political gain or
harassment. History indicates that the likelihood
that a significant number of such cases will be
filed is remote. Although scheduling problems may
arise, there is no reason to assume that the
District Courts will be either unable to
accommodate the President’s needs or unfaithful
to the tradition—especially in matters involving
national security—of giving “the utmost deference
to Presidential responsibilities.” Several
Presidents, including petitioner, have given
testimony without jeopardizing the Nation’s
security. In short, we have confidence in the ability
of our federal judges to deal with both of these
concerns.
If Congress deems it appropriate to afford the

President stronger protection, it may respond with
appropriate legislation. . . . If the Constitution
embodied the rule that the President advocates,
Congress, of course, could not repeal it. But our
holding today raises no barrier to a statutory
response to these concerns.
The Federal District Court has jurisdiction to

decide this case. Like every other citizen who
properly invokes that jurisdiction, respondent has
a right to an orderly disposition of her claims.
Accordingly, the judgment of the Court of Appeals
is affirmed.
It is so ordered.
JUSTICE BREYER, concurring in

the judgment.
I agree with the majority that the Constitution
does not automatically grant the President an
immunity from civil lawsuits based upon his
private conduct. Nor does the “doctrine of
separation of powers . . . require federal courts to
stay” virtually “all private actions against the
President until he leaves office.” Rather, as the
Court of Appeals stated, the President cannot
simply rest upon the claim that a private civil
lawsuit for damages will “interfere with the
constitutionally assigned duties of the Executive
Branch . . . without detailing any specific
responsibilities or explaining how or the degree to
which they are affected by the suit.” To obtain a
postponement the President must “bea[r] the
burden of establishing its need.”
In my view, however, once the President sets forth

and explains a conflict between judicial
proceeding and public duties, the matter changes.
At that point, the Constitution permits a judge to
schedule a trial in an ordinary civil damages
action (where postponement normally is possible
without overwhelming damage to a plaintiff) only
within the constraints of a constitutional principle
—a principle that forbids a federal judge in such a
case to interfere with the President’s discharge of
his public duties. I have no doubt that the
Constitution contains such a principle applicable
to civil suits, based upon Article II’s vesting of the
entire “executive Power” in a single individual,
implemented through the Constitution’s structural
separation of powers, and revealed both by history
and case precedent.
I recognize that this case does not require us now

to apply the principle specifically, thereby
delineating its contours; nor need we now decide
whether lower courts are to apply it directly or
categorically through the use of presumptions or
rules of administration. Yet I fear that to disregard
it now may appear to deny it. I also fear that the
majority’s description of the relevant precedents
de-emphasizes the extent to which they support a
principle of the President’s independent authority
to control his own time and energy. . . .
Case law, particularly, Nixon v. Fitzgerald, strongly

supports the principle that judges hearing a
private civil damages action against a sitting
President may not issue orders that could
significantly distract a President from his official
duties. In Fitzgerald, the Court held that former
President Nixon was absolutely immune from civil
damage lawsuits based upon any conduct within
the “outer perimeter” of his official
responsibilities. . . .
The majority relies upon the threat of sanctions to

discourage, and “the court’s discretion” to
manage, [civil damage lawsuits] so that
“interference with the President’s duties would
not occur.” I am less sanguine. Since 1960, when
the last such suit [against Kennedy] was filed, the
number of civil lawsuits filed annually in Federal
District Courts has increased from under 60,000
to about 240,000; the number of federal district
judges has increased from 233 to about 650; the
time and expense associated with both discovery
and trial have increased; an increasingly complex
economy has led to increasingly complex sets of
statutes, rules and regulations, that often create
potential liability, with or without fault. And this
Court has now made clear that such lawsuits may
proceed against a sitting President. The
consequence, as the Court warned in Fitzgerald, is
that a sitting President, given “the visibility of his
office,” could well become “an easily identifiable
target for suits for civil damages.” [A]nd individual
district court procedural rulings could pose a
significant threat to the President’s official
functions.
I concede the possibility that district courts,

supervised by the Courts of Appeals and perhaps
this Court, might prove able to manage private
civil damage actions against sitting Presidents
without significantly interfering with the
discharge of Presidential duties—at least if they
manage those actions with the constitutional
problem in mind. Nonetheless, predicting the
future is difficult, and I am skeptical. . . .
. . . The District Court in this case determined that

the Constitution required the postponement of
trial during the sitting President’s term. It may
well be that the trial of this case cannot take place
without significantly interfering with the
President’s ability to carry out his official duties.
Yet, I agree with the majority that there is no
automatic temporary immunity and that the
President should have to provide the District
Court with a reasoned explanation of why the
immunity is needed; and I also agree that, in the
absence of that explanation, the court’s
postponement of the trial date was premature. For
those reasons, I concur in the result.
The Court’s conclusion that Jones’s sexual

harassment suit could proceed was a setback for
President Clinton, who was by that time heavily
involved in more serious controversies that
ultimately led to his impeachment (see Box 4-4). In
the end, Clinton and Jones reached an out-of-court
monetary settlement of the dispute. Although the
Jones case never went to trial, the Supreme Court’s
ruling that presidents while in office may be sued for
unofficial conduct is a meaningful addition to the law
of presidential immunity. It also remains
controversial. Some scholars suggested that it would
ultimately prove damaging to the presidency, while
others argued that the Clinton episode was so
anomalous that future plaintiffs would be unlikely to
take advantage of the Court’s ruling. The Trump
presidency may supply more definitive answers
about the importance of Clinton v. Jones, considering
the number of civil suits now pending against Trump
—including claims that he failed to pay hotel workers
and that he defamed a former competitor on the
television show The Apprentice who had accused
Trump of sexual assault.
Box 4-4 Aftermath . . . Clinton v. Jones
IN Clinton v. Jones (1997), the Supreme Court

rejected President Bill Clinton’s request to
postpone a trial on Paula Jones’s sexual
harassment charges until his presidency ended.
Thus began two years of intense legal difficulties
for the president. Clinton was already under
investigation by independent counsel Kenneth
Starr for possible financial improprieties in the
Whitewater matter, an Arkansas land deal that
occurred prior to his presidency. That
investigation coupled with the Jones lawsuit
subjected Clinton to more-intense scrutiny than
almost any other previous president had
experienced.
While preparing their case, Jones’s attorneys were

made aware of a possible illicit relationship
between Clinton and a young White House intern,
Monica Lewinsky. Attempting to establish a
pattern of wrongdoing, Jones’s lawyers
subpoenaed Lewinsky and the president. Lewinsky
at first denied any sexual relationship with
Clinton. On January 17, 1998, President Clinton
gave a sworn deposition claiming that he had not
had a sexual relationship with Lewinsky. Nine days
later he made the same denial to the American
people on national television. Taped telephone
conversations between Lewinsky and her friend
Linda Tripp, who had given the tapes to the
independent counsel’s office, revealed that a
sexual relationship between Lewinsky and Clinton
had occurred. Starr expanded his investigation to
include an inquiry into the Lewinsky matter.
After receiving immunity from prosecution,

Lewinsky changed her testimony, acknowledging a
past relationship with the president. In August
Clinton admitted to “a critical lapse of judgment”
that had led to his affair with Lewinsky. By this
time, other women had come forward claiming
that Clinton had acted inappropriately with them.
In November the president settled his legal
dispute with Jones for $850,000 with no apology
or admission of guilt.
Settling the case, however, did not end Clinton’s

troubles. In December the House of
Representatives considered four articles of
impeachment recommended by its Judiciary
Committee. Two of the proposals passed: one
charged Clinton with perjury, and the other
alleged obstruction of justice. As a result, Bill
Clinton became only the second president in U.S.
history to be impeached.
In January 1999, with Chief Justice William H.

Rehnquist presiding and the senators acting as a
jury, the U.S. Senate tried Clinton on the two
articles of impeachment. On February 12 the
senators voted 55–45 to acquit Clinton on the
perjury charge and 50–50 on the obstruction of
justice charge, both falling far short of the 67
guilty votes required to remove the president from
office. Throughout the impeachment process,
public opinion ran decidedly in Clinton’s favor.
Clinton’s legal problems continued. U.S. judge

Susan Webber Wright, who presided over the
Jones lawsuit, found Clinton in contempt and fined
him $90,000 for undermining “the integrity of the
judicial system” by giving “false, misleading, and
evasive answers that were designed to obstruct
justice.” In May 2000 the Arkansas Supreme
Court initiated disbarment proceedings against
him. But on January 19, 2001, his last full day in
office, Clinton reached an agreement with the
independent counsel in which he admitted
wrongdoing and accepted a $25,000 fine and a
five-year suspension of his license to practice law,
thus settling the disbarment question.
Throughout all of these difficulties, Bill Clinton’s

presidency was surprisingly unaffected. Polls
indicated that the public perceived Clinton as a
man with serious personal character flaws, but he
nevertheless received historically high approval
ratings for the job he was doing as president.
Sources: Los Angeles Times, May 23, 2000;

Omaha World-Herald, February 13, 1999; New
York Times, February 13, 1999, July 30, 1999; San
Francisco Chronicle, February 13, 1999.
The Power to Pardon

Executive power historically has included the
authority to reduce or rescind criminal punishments
in individual cases. The executive stands as the last
source of mercy, capable of sparing a person when
extraordinary circumstances warrant such action.
European monarchs exercised this power long
before the creation of the United States, so it is not
surprising that the Constitutional Convention also
gave it to the president. The wording of the pardon
clause is straightforward: the president “shall have
Power to grant Reprieves and Pardons for Offences
against the United States, except in Cases of
Impeachment.”
A pardon erases all penalties and other legal effects

of a criminal conviction. It is, as described by Chief
Justice John Marshall, an act of grace. A person
receiving a complete pardon is released from serving
any remaining sentence and has full civil rights
restored. Legally, it is as if the individual had never
committed the crime.42 A reprieve, in contrast, is a
presidential act that merely postpones the serving of
a criminal penalty.
42 See Ex parte Garland (1867).
The president’s power to grant pardons and

reprieves is not absolute, however. The words of
Article II restrict the president’s authority to crimes
against the United States, which means that the
president may pardon only individuals charged with
federal offenses, not those in violation of state
criminal laws. The governors of the various states
have similar pardoning or clemency authority. Article
II also prohibits the use of the pardoning power to
nullify the effects of impeachment. Finally, the
president may not impose a pardon on someone who
refuses to accept it.43
43 United States v. Wilson (1833) and Burdick v.

United States (1915). Later, however, the Court held
that acceptance was not required when the
president commuted a death sentence to life in
prison (Biddle v. Perovich, 1927).
Aside from these limits, the president is free to

exercise the pardoning authority with full discretion,
and some presidents have been quite generous in
granting pardons. A pardon may completely void all
criminal penalties for an offense or eliminate only a
portion of the sentence. The president may place
conditions on a pardon. In 1960 President
Eisenhower spared army master sergeant Maurice
Schick, a convicted murderer, from the death penalty
on the condition that he be imprisoned for life
without the possibility of parole.44 A president may
pardon individuals before or after they are tried for
offenses or even before formal criminal charges are
filed. A pardon may be granted to a single person or
to an entire class of individuals. In 1795 George
Washington granted amnesty to those who had
participated in the Whiskey Rebellion, and in 1977
Jimmy Carter pardoned all Vietnam War draft
evaders, an action that applied to an estimated
100,000 men.
44 Schick v. Reed (1974).
For the most part, the Supreme Court has granted

the chief executive great leeway in the exercise of
the pardon power. Ex parte Grossman (1925)
provides an example. The issue in this case was
whether the president’s pardon power extended to
criminal contempt penalties imposed by a federal
judge. Chief Justice Taft wrote the opinion of the
Court. Taft, a former president, expressed strong
support for a broad interpretation of the pardoning
authority. In Grossman, note his use of history as a
means of interpreting the Constitution.
Ex parte Grossman 267 U.S. 87 (1925)
court/267/87.html
Vote: 8 (Brandeis, Butler, Holmes, McReynolds,
Sanford, Sutherland, Taft, Van Devanter)
Facts:
On November 24, 1920, the federal government
charged Philip Grossman with selling liquor at his
place of business in violation of the National
Prohibition Act. Government attorneys requested
that the federal district judge issue an injunction
prohibiting Grossman from any further violations,
and two days later the judge did so. On January
11, 1921, the government filed charges against
Grossman for violating the judge’s order, claiming
that he had continued to sell liquor at his
establishment. The district court tried Grossman
and found him guilty of criminal contempt of court
for disobeying the order. The judge sentenced him
to one year in prison and a fine of $1,000, and the
sentence was upheld by the court of appeals.
In December 1923 President Calvin Coolidge

issued a pardon in which he reduced Grossman’s
sentence to payment of the fine. Grossman
accepted the pardon, paid the fine, and was
released from prison. The district judge, however,
refused to acknowledge the pardon on the ground
that the president had no authority to commute a
sentence for criminal contempt of court. He
ordered Grossman to serve the remainder of his
sentence. Grossman objected and filed a habeas
corpus action against prison superintendent
Ritchie Graham, demanding to be released.
Arguments:
For the petitioner, Philip Grossman:
The Constitution should be read with the
common meaning of each word at the time of
its drafting. The common meaning of
“offences” at the time included criminal
contempt of court.
Historically, the king of England exercised
pardon power over contempt of court. There is
no indication that the framers intended to
change this power when they wrote the
Constitution.
There is no serious threat that the president
would abuse the power to pardon a criminal
contempt of court and impinge on the
authority of the courts. Even if this were to
happen, impeachment would be an appropriate
remedy.
For the respondent, Ritchie V.

Graham, Superintendent of the
Chicago House of Correction,
Cook County, Ill.:
The president has the power to pardon only
statutory offenses against the United States.
The language of the Constitution shows that
pardonable offenses include only those subject
to trial by jury.
Allowing the president to pardon criminal
contempt of court would violate the doctrine of
separation of powers by impinging on the
independence and authority of the judiciary.
Mr. Chief Justice Taft Delivered the Opinion of

the Court.
The argument for the respondent is that the

President’s power extends only to offenses against
the United States and a contempt of Court is not
such an offense, that offenses against the United
States are not common law offenses but can only
be created by legislative act, that the President’s
pardoning power is more limited than that of the
King of England at common law, which was a
broad prerogative and included contempts against
his courts chiefly because the judges thereof were
his agents and acted in his name; that the context
of the Constitution shows that the word “offences”
is used in that instrument only to include crimes
and misdemeanors triable by jury and not
contempts of the dignity and authority of the
federal courts, and that to construe the pardon
clause to include contempts of court would be to
violate the fundamental principle of the
Constitution in the division of powers between the
Legislative, Executive and Judicial branches, and
to take from the federal courts their independence
and the essential means of protecting their dignity
and authority.
The language of the Constitution cannot be
interpreted safely except by reference to the
common law and to British institutions as they
were when the instrument was framed and
adopted. The statesmen and lawyers of the
Convention who submitted it to the ratification of
the Conventions of the thirteen States, were born
and brought up in the atmosphere of the common
law, and thought and spoke in its vocabulary. They
were familiar with other forms of government,
recent and ancient, and indicated in their
discussions earnest study and consideration of
many of them, but when they came to put their
conclusions into the form of fundamental law in a
compact draft, they expressed them in terms of
the common law, confident that they could be
shortly and easily understood. . . .
The King of England before our Revolution, in the

exercise of his prerogative, had always exercised
the power to pardon contempts of court, just as he
did ordinary crimes and misdemeanors and as he
has done to the present day. In the mind of a
common law lawyer of the eighteenth century the
word pardon included within its scope the ending
by the King’s grace of the punishment of such
derelictions, whether it was imposed by the court
without a jury or upon indictment, for both forms
of trial for contempts were had. . . .
Nor is there any substance in the contention that

there is any substantial difference in this matter
between the executive power of pardon in our
Government and the King’s prerogative. The
courts of Great Britain were called the King’s
Courts, as indeed they were; but for years before
our Constitution they were as independent of the
King’s interference as they are today. The extent
of the King’s pardon was clearly circumscribed by
law and the British Constitution, as the cases cited
above show. The framers of our Constitution had
in mind no necessity for curtailing this feature of
the King’s prerogative in transplanting it into the
American governmental structures, save by
excepting cases of impeachment; and even in that
regard, as already pointed out, the common law
forbade the pleading a pardon in bar to an
impeachment. The suggestion that the President’s
power of pardon should be regarded as
necessarily less than that of the King was pressed
upon this Court . . . in Ex parte William Wells,
[1855] but it did not prevail with the majority. . . .
Nothing in the ordinary meaning of the words

“offences against the United States” excludes
criminal contempts. That which violates the
dignity and authority of federal courts such as an
intentional effort to defeat their decrees justifying
punishment violates a law of the United States,
and so must be an offense against the United
States. Moreover, this Court has held that the
general statute of limitation which forbids
prosecutions “for any offense unless instituted
within three years next after such offense shall
have been committed,” applies to criminal
contempts. . . .
Moreover, criminal contempts of a federal court

have been pardoned for 85 years. In that time the
power has been exercised 27 times. . . .
Finally it is urged that criminal contempts should
not be held within the pardoning power because it
will tend to destroy the independence of the
judiciary and violate the primary constitutional
principle of a separation of the legislative,
executive and judicial powers. . . .
Executive clemency exists to afford relief from

undue harshness or evident mistake in the
operation or enforcement of the criminal law. The
administration of justice by the courts is not
necessarily always wise or certainly considerate of
circumstances which may properly mitigate guilt.
To afford a remedy, it has always been thought
essential in popular governments, as well as in
monarchies, to vest in some other authority than
the courts power to ameliorate or avoid particular
criminal judgments. It is a check entrusted to the
executive for special cases. To exercise it to the
extent of destroying the deterrent effect of judicial
punishment would be to pervert it; but whoever is
to make it useful must have full discretion to
exercise it. Our Constitution confers this
discretion on the highest officer in the nation in
confidence that he will not abuse it. An abuse in
pardoning contempts would certainly embarrass
courts, but it is questionable how much more it
would lessen their effectiveness than a wholesale
pardon of other offenses. If we could conjure up in
our minds a President willing to paralyze courts by
pardoning all criminal contempts, why not a
President ordering a general jail delivery [a
forcible liberation of prisoners from jail]? . . .
If it be said that the President, by successive

pardons of constantly recurring contempts in
particular litigation, might deprive a court of
power to enforce its orders in a recalcitrant
neighborhood, it is enough to observe that such a
course is so improbable as to furnish but little
basis for argument. Exceptional cases like this, if
to be imagined at all, would suggest a resort to
impeachment rather than to a narrow and strained
construction of the general powers of the
President.
The power of a court to protect itself and its

usefulness by punishing contemnors is of course
necessary, but it is one exercised without the
restraining influence of a jury and without many of
the guaranties which the bill of rights offers to
protect the individual against unjust conviction. Is
it unreasonable to provide for the possibility that
the personal element may sometimes enter into a
summary judgment pronounced by a judge who
thinks his authority is flouted or denied? May it
not be fairly said that in order to avoid possible
mistake, undue prejudice or needless severity, the
chance of pardon should exist at least as much in
favor of a person convicted by a judge without a
jury as in favor of one convicted in a jury trial?
The pardoning by the President of criminal
contempts has been practiced more than three-
quarters of a century, and no abuses during all
that time developed sufficiently to invoke a test in
the federal courts of its validity.
It goes without saying that nowhere is there a

more earnest will to maintain the independence of
federal courts and the preservation of every
legitimate safeguard of their effectiveness
afforded by the Constitution than in this Court.
But the qualified independence which they
fortunately enjoy is not likely to be permanently
strengthened by ignoring precedent and practice
and minimizing the importance of the coordinating
checks and balances of the Constitution.
The rule is made absolute and the petitioner is

discharged.
Undoubtedly, the most controversial exercise of the

pardon power to date was Gerald Ford’s exoneration
of Richard Nixon in 1974 (see Box 4-5). By resigning
from office, Nixon kept all of the benefits the nation
provides its former chief executives, but the
resignation did not make him immune from a trial
for Watergate-related crimes. The pardon covered
any crimes Nixon may have committed during his
entire tenure as chief executive, from January 20,
1969, through August 9, 1974. It was an
extraordinary act: not only was Nixon the first
president to be pardoned for possible wrongdoing,
but he also received a blanket pardon covering
almost six years and not restricted to any specific
crimes or incidents. Furthermore, the pardon came
before any formal criminal charges were brought
against him. Ford’s stated intent in granting the
pardon was to begin to heal the nation by putting the
Watergate scandal to rest.
Many people were appalled at the pardon, believing

that if Nixon had committed criminal acts, he should
be put on trial like any other citizen. They thought it
was necessary for the former president to stand trial
because his alleged wrongdoing had compromised
the very foundation of the American government and
violated the sacred trust of the people. The granting
of this blanket protection to Nixon was so widely
criticized that some analysts cite it as one reason
Ford lost the 1976 election to Jimmy Carter.
Box 4-5 Nixon Pardon Proclamation
Following is the text of the proclamation by which

President Gerald R. Ford, September 8, 1974,
pardoned former president Richard Nixon:
Richard Nixon became the thirty-seventh

President of the United States on January 20,
1969, and was re-elected in 1972 for a second
term by the electors of forty-nine of the fifty
states. His term in office continued until his
resignation on August 9, 1974.
Pursuant to resolutions of the House of

Representatives, its Committee on the
Judiciary conducted an inquiry and
investigation on the impeachment of the
President extending over more than eight
months. The hearings of the committee and its
deliberations, which received wide national
publicity over television, radio, and in printed
media, resulted in votes adverse to Richard
Nixon on recommended articles of
impeachment.
As a result of certain acts or omissions
occurring before his resignation from the
office of President, Richard Nixon has become
liable to possible indictment and trial for
offenses against the United States. Whether or
not he shall be so prosecuted depends on
findings of the appropriate grand jury and on
the discretion of the authorized prosecutor.
Should an indictment ensue, the accused shall
then be entitled to a fair trial by an impartial
jury, as guaranteed to every individual by the
Constitution.
It is believed that a trial of Richard Nixon, if it

became necessary, could not fairly begin until
a year or more has elapsed. In the meantime,
the tranquility to which this nation has been
restored by the events of recent weeks could
be irreparably lost by the prospects of
bringing to trial a former President of the
United States. The prospects of such trial will
cause prolonged and divisive debate over the
propriety of exposing to further punishment
and degradation a man who has already paid
the unprecedented penalty of relinquishing
the highest elective office in the United States.
Now, therefore, I, Gerald R. Ford, President of

the United States, pursuant to the pardon
power conferred upon me by Article II, Section
2, of the Constitution, have granted and by
these presents do grant a full, free, and
absolute pardon unto Richard Nixon for all
offenses against the United States which he,
Richard Nixon, has committed or may have
committed or taken part in during the period
from January 20, 1969, through August 9,
1974.
In witness whereof, I have hereunto set my

hand this 8th day of September in the year of
Our Lord Nineteen Hundred Seventy-Four, and
of the Independence of the United States of
America the 199th.
Given the Supreme Court’s interpretations of the

pardon power, there was little doubt that Ford acted
constitutionally. Few legal scholars thought a court
challenge had any chance of success. Prevailing
legal opinion, however, did not deter a Michigan
attorney from filing suit against Ford to have the
pardon declared unconstitutional. The dispute was
heard and decided in federal district court and did
not reach the Supreme Court. As you read the
judge’s opinion in Murphy v. Ford, notice how closely
he ties his decision to the intention of the framers
and to the precedents handed down by the Supreme
Court.
Murphy v. Ford 390 F. SUPP. 1372 (1975)
https://law.justia.com/cases/federal/district-
courts/FSupp/390/1372/1966699/
Decision of the U.S. District Court for the Western

District of Michigan
Noel P. Fox, Chief Judge

Facts:
F. Gregory Murphy, an attorney from Marquette,
Michigan, filed suit against President Ford, asking
the court to declare Ford’s unconditional pardon
of Richard Nixon void. Murphy contended that a
pardon cannot constitutionally be granted to a
person who has not been indicted or convicted
and who has not been formally charged with any
crime against the United States. The suit was
heard by Judge Noel Fox, a Democrat appointed to
the district court by President Kennedy.
Chief Judge Fox Delivered the Opinion of the

court.
The main issue is, did President Ford have the

constitutional power to pardon former President
Nixon for the latter’s offenses against the United
States?
In The Federalist No. 74, written in 1788 in

support of the proposed Constitution, Alexander
Hamilton explained why the Founding Fathers
gave the President a discretionary power to
pardon: “The principal argument for reposing the
power of pardoning . . . [in] the Chief Magistrate,”
Hamilton wrote, “is this: in seasons of insurrection
or rebellion, there are often critical moments,
when a well-timed offer of pardon to the
insurgents or rebels may restore the tranquillity of
the commonwealth; and which, if suffered to pass
unimproved, it may never be possible afterwards
to recall.”
Few would today deny that the period from the
break-in at the Watergate in June 1972, until the
resignation of President Nixon in August 1974,
was a “season of insurrection or rebellion” by
many actually in the Government. . . . Evidence
now available suggests a strong probability that
the Nixon Administration was conducting a covert
assault on American liberty and an insurrection
and rebellion against constitutional government
itself, an insurrection and rebellion which might
have succeeded but for timely intervention by a
courageous free press, an enlightened Congress,
and a diligent Judiciary dedicated to preserving
the rule of law.
Certainly the summer and early fall of 1974 were

a period of popular discontent, as the full extent of
the Nixon Administration’s misdeeds became
known, and public trust in government virtually
collapsed. After Mr. Nixon’s resignation in August,
the public clamor over the whole Watergate
episode did not immediately subside; attention
continued to focus on Mr. Nixon and his fate.
When Mr. Ford became President, the executive
branch was foundering in the wreckage of
Watergate, and the country was in the grips of an
apparently uncontrollable inflationary spiral and
an energy crisis of unprecedented proportions.
Under these circumstances, President Ford

concluded that the public interest required
positive steps to end the divisions caused by
Watergate and to shift the focus of attention from
the immediate problem of Mr. Nixon to the hard
social and economic problems which were of more
lasting significance.
By pardoning Richard Nixon, who many believed
was the leader of a conspiratorial insurrection and
rebellion against American liberty and
constitutional government, President Ford was
taking steps, in the words of Alexander Hamilton
in The Federalist, to “restore the tranquillity of the
commonwealth” by a “well-timed offer of pardon”
[our italics] to the putative rebel leader. President
Ford’s pardon of Richard M. Nixon was thus
within the letter and the spirit of the Presidential
Pardoning Power granted by the Constitution. It
was a prudent public policy judgment.
The fact that Mr. Nixon had been neither indicted

nor convicted of an offense against the United
States does not affect the validity of the pardon.
Mr. Justice Field, speaking for the [Supreme Court
in Ex parte Garland (1867)], said that the
Pardoning Power is “unlimited,” except in cases of
impeachment. “[The Power] extends to every
offense known to the law, and may be exercised at
any time after its commission, either before legal
proceedings are taken, or during their pendency,
or after conviction and judgment. . . . The benign
prerogative of mercy reposed in [the President]
cannot be fettered by any legislative restrictions. .
. . A pardon reaches both the punishment
prescribed for the offense and the guilt of the
offender; and when the pardon is full, it releases
the punishment and blots out of existence the
guilt. . . . If granted before conviction, it prevents
any of the penalties and disabilities consequent
from conviction from attaching. . . .
“There is only this limitation to its operation: it

does not restore offices forfeited, or property or
interests vested in others in consequence of the
conviction and judgment.” . . . However, “ . . . as
the very essence of a pardon is forgiveness or
remission of penalty, a pardon implies guilt; it
does not obliterate the fact of the commission of
the crime and the conviction thereof; it does not
wash out the moral stain; as has been tersely said;
it involves forgiveness and not forgetfulness.”
Page v. Watson [Florida Supreme Court, 1938].
The . . . motion to dismiss this action is hereby

granted.
The power to pardon continues to be an important

executive prerogative. Often it is used to extend
mercy where, because of special circumstances,
strict application of the law would lead to unjust
results. At times, however, its use is controversial
because of political implications. In December 1992,
shortly after he had been defeated for reelection,
President George H. W. Bush granted pardons to six
former executive branch officials, including former
secretary of defense Caspar Weinberger. Those
pardoned were facing criminal charges for alleged
illegal dealings with Iran. President Clinton also
faced his share of criticism for his “eleventh hour”
pardon of 140 individuals, including his former
housing secretary, Henry Cisneros, for a total of 396
pardons during his administration. In contrast,
though commentators questioned President George
W. Bush’s commutation of vice presidential adviser
Lewis “Scooter” Libby’s prison sentence for perjury
and other crimes associated with the leaking of
classified information, Bush issued only 189 pardons
during his administration (about the same as
Obama’s 212).
In his first eighteen months in office, President

Trump issued five, including one for contempt of
court, which as you know from Grossman he is
constitutionally permitted to do. Raising more
questions is Trump’s tweet of June 4, 2018: “As has
been stated by numerous legal scholars, I have the
absolute right to PARDON myself, but why would I
do that when I have done nothing wrong?” Trump is
right to say that at least some scholars and lawyers
agree that he can pardon himself. They note that the
Constitution places no such limit on the president
and that Supreme Court precedents give the
president wide latitude in using his pardon power.45
But other commentators disagree. They point to a
memo written by a Justice Department lawyer four
days before Nixon resigned:
45 See, e.g., Michael W. McConnell, “Trump’s Not

Wrong about Pardoning Himself,” Washington Post,
June 8, 2018.
Pursuant to Article II, Section 2 of the

Constitution, the “Power to grant Reprieves and
Pardons for Offenses against the United States,
except in Cases of Impeachment,” is vested in
the President. This raises the question whether
the President can pardon himself. Under the
fundamental rule that no one may be a judge in
his own case, it would seem that the question
should be answered in the negative [our
italics].46
46 Presidential or Legislative Pardon of the

President,” August 5, 1974,
https://www.justice.gov/sites/default/files/olc/opinion
s/1974/08/31/op-olc-supp-v001-p0370_0.pdf.
Where both sides converge is over the consequences

of a self-pardon. As one of Trump’s lawyers noted,
“Pardoning other people is one thing, pardoning
yourself is tough.” It would “probably lead to
immediate impeachment.” 47
47 Rudy Giuliani on ABC and NBC news shows, June

3, 2018.
The Role of the President in

External Relations
In the areas implicating the nation’s external affairs
—including foreign policy, militarized disputes, and
war—the Constitution confers a good deal of
authority on the president:
Article II, Section 2, assigns to the president the

role of commander in chief of the army and navy.
This role pertains most directly to military
capability but also to foreign policy: military
power not only enables a nation to deter hostile
actions from other countries, but it also can be
used as a credible threat to persuade other
nations to follow certain preferred courses of
action. Armed interventions and full-scale wars
can be major elements in executing a nation’s
foreign policy. Modern military actions, both small
and large, taken by the United States in Grenada,
Panama, Afghanistan, Kuwait, Kosovo, Libya, and
Iraq demonstrate the use of this power.
Article II gives the president the sole authority to
make treaties on behalf of the United States.
These international agreements may cover almost
any area of interaction among nations, including
defense pacts, economic understandings, and
human rights accords.
The president selects the individuals to represent
the United States in contacts with other nations.
The power to appoint ambassadors and ministers
influences U.S. relations with the leaders of other
states.
Article II, Section 3, provides that the president is
the appropriate official to receive ambassadors
and ministers from foreign nations. When the
president accepts the credentials of foreign
emissaries, the act confers U.S. recognition on the
governments they represent. This provision also
suggests that when foreign diplomats
communicate with the United States they must do
so through the president.
But the Constitution, in Article I, Section 8, also
assigns substantial foreign policy and war powers to
Congress, including the authority to
Provide for the common defense and general

welfare of the country
Declare war
Raise and support armies
Provide and maintain a navy
Make rules to govern and regulate the land and
naval forces
Provide for calling up the militia to carry out the
laws of the nation, suppress insurrections, and
repel invasions
Provide for organizing, arming, and disciplining
the militia
Because the Constitution provides each branch with

significant and potentially overlapping powers,
external relations and, in particular, the power to
wage war present an “invitation to struggle”
between the president and Congress. For this
reason, we consider external relations in some detail
in Chapter 5, where we examine the distribution of
power between and among the branches of
government.
For now, it is worth noting that, on occasion, the

Supreme Court has read the Constitution to give the
president substantial authority for creating and
implementing foreign policy. The broadest statement
in this position comes in the case of United States
v. Curtiss-Wright Export Corp (1936). We
discussed this case in Chapter 3 as an example of
the Court endorsing the notion of inherent powers
enjoyed by the federal government in the field of
foreign relations. Justice George Sutherland’s
opinion for the Court also develops the president’s
constitutional position in these matters. Throughout
the opinion he emphasizes the president’s primacy:
“In [the] external realm, with its important,
complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a
representative of the nation.” Sutherland even
contended that the president enjoys “plenary and
exclusive power . . . as the sole organ of the federal
government in the field of international relations—a
power which does not require as a basis for its
exercise an act of Congress, but [only] must be
exercised in subordination to the applicable
provisions of the Constitution [our italics]”. Some of
this language, as Sutherland noted in the opinion,
comes from a speech that none other than John
Marshall gave in the House of Representatives prior
to his appointment as chief justice. Marshall said,
“The President is the sole organ of the nation in its
external relations, and its sole representative with
foreign nations.”
Why did Marshall and Sutherland characterize the

president in this way? They both believed that more
than Congress, the president has “the better
opportunity of knowing the conditions which prevail
in foreign countries, and especially is this true in
time of war. He has his confidential sources of
information. He has his agents in the form of
diplomatic, consular and other officials. Secrecy in
respect of information gathered by them may be
highly necessary, and the premature disclosure of it
productive of harmful results.”
Have subsequent Courts agreed? Because we

explore this question in some detail in Chapter 5,
suffice it to say for now that the answer is both yes
and no.
Let’s start with how the Court has undercut Curtiss-

Wright. Chiefly, and in contrast to Curtiss-Wright,
the justices have often reminded us that the
Constitution does not leave the president completely
unfettered in the pursuit of the nation’s foreign
policy. In fact, the framers were sufficiently
concerned about the distribution of these foreign
policy prerogatives that, as we know, they gave the
legislative branch various powers to counterbalance
those of the executive. The president is commander
in chief of the military, yes, but Congress has the
power to raise and support the army and the navy,
make rules for the military, call up the militia, and
declare war. The president has the constitutional
authority to make treaties, but a treaty cannot take
effect unless the Senate ratifies it by a two-thirds
vote. The president appoints ambassadors and other
foreign policy ministers, but the Senate must
confirm them.
For this reason, today’s justices often look to
Congress when considering presidential action.
Under an approach established in Youngstown Sheet
& Tube Co. v. Sawyer (1952) (excerpted in Chapter
5), the president must show that a power is
conclusively and exclusively his if he is taking action
against Congress’s will. In Curtiss-Wright the
president and Congress were on the same page;
Congress had authorized the president to issue the
embargo. In Youngstown they were not. When
President Truman issued an executive order
commanding his secretary of commerce to seize the
nation’s steel mills to keep workers from striking,
the Court thought he had adopted a method that
Congress had declined to adopt to settle labor
strikes. Because the justices found that Truman
could not point to any specific statutory or
constitutional authority for his executive order, they
invalidated it.
This does not mean the Court will always strike

down presidential actions of which Congress does
not approve. In another case we consider in Chapter
5, Zivotofsky v. Kerry (2015), the Court upheld an
executive action that Congress explicitly tried to
overturn: the president did not want passports of
U.S. citizens born in Jerusalem to list the country of
birth as “Israel,” whereas Congress had passed a law
allowing Israel to be recorded. In this case the Court
ruled for the president because he was able to point
to a conclusive and exclusive power in Article II—the
power to “receive Ambassadors and other public
Ministers.”
But even in Zivotofsky, the Court hardly ignored

Congress’s role in foreign affairs, and even more to
the point took the opportunity to push back on
Curtiss-Wright. After quoting language from Curtiss-
Wright on the president’s role as “the sole organ” of
foreign affairs, the majority in Zivotofsky noted,
This description of the President’s exclusive

power was not necessary to the holding of
Curtiss-Wright —which, after all, dealt with
congressionally authorized action, not a
unilateral Presidential determination. Indeed,
Curtiss-Wright did not hold that the President is
free from Congress’ lawmaking power in the
field of international relations. The President
does have a unique role in communicating with
foreign governments. . . . But whether the realm
is foreign or domestic, it is still the Legislative
Branch, not the Executive Branch, that makes
the law. . . .
. . . It is not for the President alone to determine

the whole content of the Nation’s foreign policy.
Do you think Justice Sutherland would agree with

this interpretation of his opinion?
Either way, and despite its repudiation of some of
the language in Curtiss-Wright, we should keep in
mind that the Court did rule for the president in
Zivotofsky. Which brings us to the continuing vitality
of Curtiss-Wright: as a general rule, the Court has
been sympathetic to the executive branch when
deciding disputes over the president’s foreign policy
role. For example, the justices have been rather
lenient in the handling of the president’s power to
make treaties. In Goldwater v. Carter (1979),
Senator Barry Goldwater (R-Ariz.) challenged
President Carter’s authority to terminate a defense
treaty with Taiwan without the consent of the
Senate. The Court refused to confront the
constitutional issues raised by Goldwater, dismissing
the case without even scheduling oral arguments.
With justices citing both political question and
justiciability reasons, the Court found President
Carter’s actions to be related to his foreign relations
authority and therefore not reviewable by the Court.
The Court also has supported the growing tendency

of presidents to enter into executive agreements
with other nations. Unlike treaties, these
arrangements do not require Senate ratification
(although many are made pursuant to legislation
enabling the president to enter into certain
agreements, including those involving trade or
foreign aid or pursuant to the treaties themselves),
so presidents often use them when they want to
avoid the time-consuming and very public
ratification process. But executive agreements have
their limitations: federal law requires that the
president inform Congress whenever such
agreements are made, and they can be nullified by
acts of Congress. Moreover, unlike treaties,
executive agreements are not binding on future
presidents without their consent.
As early as 1937, in United States v. Belmont, the

Court not only endorsed the use of executive
agreements but also blurred the distinction between
such arrangements and fully ratified treaties. The
Court held that the international agreements
entered into by the president as part of the
recognition of the Soviet Union had the force of law
within the United States. The same set of
agreements later was held to have sufficient force to
supersede state law, just as treaties do.48 Because of
the advantages of executive agreements and their
approval by the Court, presidents have grown to
favor such agreements over treaties. During its first
century the United States entered into 275 treaties
and 265 executive agreements, but from 1945
through 2008 the nation concluded 1,056 treaties
and 16,735 executive agreements. President George
W. Bush alone entered into 1,998 executive
agreements but only 163 treaties. The Obama
administration followed suit, with only 15 treaties
and over 400 agreements.49
48 United States v. Pink (1942). See also Dames &

Moore v. Regan (1981).
49 Richard G. Niemi and Harold W. Stanley, Vital
Statistics on American Politics 2015–2016 (Thousand
Oaks, CA: CQ Press, 2015), table 9-1; data for
Obama updated from several sources.
Here we have provided you with but a taste of the

relationship between Congress and the president in
the sphere of external relations. We have much more
to say about this subject, along with interactions
between the branches in domestic affairs, in the next
chapter.
Annotated Readings
General treatments of Article II, executive authority,
and theories of presidential power include Joseph
Bessette and Jeffrey Tulis, eds., The Constitutional
Presidency (Baltimore, MD: Johns Hopkins
University Press, 2009); Phillip J. Cooper, By Order
of the President: The Use and Abuse of Executive
Direct Action (Lawrence: University Press of Kansas,
2002); Edward S. Corwin, The President: Office and
Powers, 5th rev. ed. (New York: New York University
Press, 1984); Matthew J. Dickinson, Bitter Harvest:
FDR, Presidential Power, and the Growth of the
Presidential Branch (New York: Cambridge
University Press, 1999); Eric A. Posner and Adrian
Vermeule, The Executive Unbound: After the
Madisonian Republic (New York: Oxford University
Press, 2011); Saikrishna Bangalore Prakash,
Imperial from the Beginning: The Constitution of the
Original Executive (New Haven, CT: Yale University
Press, 2015); Robert Y. Shapiro, Martha Joynt Kumar,
and Lawrence R. Jacobs, eds., Presidential Power:
Forging the Presidency for the Twenty-first Century
(New York: Columbia University Press, 2000).
Books covering more-specific domestic or foreign

powers and related issues are David Gray Adler and
Larry N. George, eds., The Constitution and the
Conduct of American Foreign Policy (Lawrence:
University Press of Kansas, 1996); Raoul Berger,
Executive Privilege: A Constitutional Myth
(Cambridge, MA: Harvard University Press, 1974);
Louis Fisher, Presidential War Power, 2nd ed.
(Lawrence: University Press of Kansas, 2004);
Michael J. Gerhardt, The Federal Impeachment
Process: A Constitutional and Historical Analysis
(Chicago: University of Chicago Press, 2000);
Howard Gillman, The Votes That Counted: How the
Court Decided the 2000 Presidential Election
(Chicago: University of Chicago Press, 2001); Scott
E. Graves and Robert M. Howard, Justice Takes a
Recess (Plymouth, UK: Lexington Books, 2009); Katy
J. Harriger, Independent Justice: The Federal Special
Prosecutor in American Politics (Lawrence:
University Press of Kansas, 1992); Louis Henkin,
Foreign Affairs and the Constitution (Mineola, NY:
Foundation Press, 1972); Scott M. Matheson, Bush v.
Gore: Exposing the Hidden Crisis in American
Democracy (Lawrence: University Press of Kansas,
2008); G. Calvin McKenzie, The Politics of
Presidential Appointments (New York: Free Press,
1981); Merrill McLoughlin, ed., The Impeachment
and Trial of President Clinton (New York: Random
House, 1999); Richard A. Posner, An Affair of State:
The Investigation, Impeachment, and Trial of
President Clinton (Cambridge, MA: Harvard
University Press, 1999); William H. Rehnquist,
Grand Inquests: The Historic Impeachments of
Justice Samuel Chase and President Andrew Johnson
(New York: William Morrow, 1999); Mark J. Rozell
and Clyde Wilcox, The Clinton Scandal and the
Future of American Government (Washington, DC:
Georgetown University Press, 2000); Mitchel A.
Sollenberger, The President Shall Nominate: How
Congress Trumps Executive Power (Lawrence:
University Press of Kansas, 2008); Donald Grier
Stephenson Jr., Campaigns and the Court: The U.S.
Supreme Court in Presidential Elections (New York:
Columbia University Press, 1999).
Chapter Five Interbranch
Interactions
IN THE PRECEDING three chapters we learned that

the Constitution endows each branch of government
with significant, but not unfettered, powers. But just
how strong are the lines that divide the institutions?
Consider these two examples:
As part of its legislative responsibility, Congress

must set penalties for crimes. But instead of
setting the penalties itself, Congress created a
special sentencing commission, with members
appointed by the president, to establish
sentencing guidelines for federal offenses. May
Congress turn over its legislative power to this
commission?
In the Immigration and Nationality Act, Congress
gave the U.S. attorney general the power to make
recommendations regarding the fate of aliens but
kept for itself the power to veto decisions by the
attorney general. May Congress take for itself
what we usually think of as an executive power—
the power of the veto?
As we shall see, the answer to the first is yes and to

the second is no. Why? We take up this question in
the first part of the chapter, in which we consider
two aspects of the interaction of the branches of the
federal government: when Congress gives other
branches legislative power, and when it takes
executive power for itself. These cases tend to
implicate domestic affairs.
In the second part of the chapter, we turn to external

affairs: international relations, war, and other
national emergencies. Often the president and
Congress agree over the course of foreign policy or
the conduct of a war. But sometimes they are at odds
because, as we noted at the end of Chapter 4, the
Constitution provides each branch with significant
and potentially overlapping powers. Either way, the
Court has occasionally been asked to resolve the
controversies, and the cases and narrative to come
will give you a sense of their approach to the
appropriate roles of the president, Congress, and the
courts over external affairs.
Debates over Interbranch

Interactions
In the opening to Part II we mentioned formal versus
functional approaches to resolving questions about
interbranch interactions. Because this debate plays
out in many of the cases to follow, it is worth
reconsidering.
Formalism, recall, emphasizes the idea that the

Constitution creates clear boundaries between and
among the branches of government by bestowing on
each a primary power. Formalists believe that
federal judges should not allow deviations from this
plan unless the text of the Constitution permits
them. Functionalism, in contrast, rejects strict
divisions among the branches and emphasizes
instead a more fluid system—one of shared rather
than separated powers. Functionalists argue that all
the Constitution prevents are extreme departures
from the separation of powers, which could result in
the accumulation of too much power in one branch
of government. As long as actions by Congress or the
president do not result in the tyranny of one branch
over the others, the federal courts should be flexible
and enable—not discourage—experimentation.
We already have seen an example of this debate in

action. In Clinton v. City of New York (1998), the
Court struck down the line-item veto. The majority
found that the line-item veto gave the president too
much policy-making authority—authority that
belongs to Congress. One of the dissenters, Justice
Stephen Breyer, took a more functional approach
when he argued that the veto did not infringe on the
liberty of Americans by impermissibly concentrating
too much power in the president. To the contrary—
he believed that the veto represented “an
experiment” that may “help representative
government to work better.”
In what follows, we present many more examples. As

you read them, consider the various strengths and
weaknesses of the two sides of the debate. Is
formalism not only unrealistic but also undesirable
because it may limit government’s ability to act
creatively in response to emerging problems? As for
functionalism, we might raise questions about the
Court’s ability to judge whether a particular law will
ultimately undermine the framers’ plan to prevent
any one branch from gaining too much power.
Domestic Powers
Our consideration of these and other matters begins
with two actions that cross institutional boundaries:
when Congress delegates some of its authority to
another branch of government, and when Congress
tries to assert powers assigned to the executive and
judicial branches.
Although the sections on these acts deal with

different substantive material, you may note some
common themes in Court rulings. Pay careful
attention to how the Court delineates constitutional
interactions from the unconstitutional. Has it acted
in a consistent manner? Have the justices grounded
their opinions in constitutional language or
philosophy, or have other factors—extralegal factors
—had greater impact?
Delegation of Powers
Almost all discussions of the ability of Congress to
delegate its lawmaking power begin with an old
Latin maxim, delegata potestas non potest delegari,
which means “a power once delegated cannot be
redelegated.” We could apply this statement to
Congress in the following way: because the
Constitution vests in Congress all legislative powers
—lawmaking authority—it cannot give such power to
another body or person.
Why not? To answer that question, consider this

example: Suppose that after you take the final
examination in this course your instructor delegates
the responsibility of grading the exam to a teaching
assistant (TA). Being busy with other work, the TA
then delegates that task to a roommate who has
never taken a constitutional law course. You would
legitimately worry about the roommate’s ability to
grade your exam. But you might also wonder about
accountability: Who would be responsible—the
professor, the TA, or the roommate—if your final
grade did not fairly reflect your work?1 The same
argument could be applied to a congressional
delegation of lawmaking power to a president in
charge of executing laws who in turn hands
authority over to a bureaucrat.
1 Craig R. Ducat, Constitutional Interpretation, 8th

ed. (Belmont, CA: Wadsworth/Thomson, 2004), 129.
No branch of government has, however, fully

accepted the language of the Latin maxim—what is
now commonly called the nondelegation doctrine.
From the First Congress on, the legislature has
delegated its power to other branches or even to
nongovernmental entities. But why would Congress
want to give away some of its power? One reason is
that, like the professor in the example, Congress is
often busy with other matters and must delegate
some authority if it is to fulfill all of its
responsibilities. Another is that Congress might be
able to formulate general policies but lacks the
expertise to fill in the details. As the job of
governance becomes more technical and complex,
this reason gains validity. United States v. Curtiss-
Wright Export Corp. provides yet another reason:
the need for flexibility. In Curtiss-Wright, Congress
had given the president authority to issue an arms
embargo if such an action would help to bring peace
to warring South American nations. Congress
recognized that once it enacts legislation it may have
difficulty amending it, but that the problems covered
by the legislation, such as in the Curtiss-Wright
example, may require sustained attention. Finally,
Congress might want to delegate for political
reasons. As Sotirios A. Barber, a constitutional law
scholar, noted, “A Congress of buck passers is one of
the results of the electorate’s tendency to reward
politicians who are responsive to its immediate
wants, not [Congress’s] considered constitutional
duties.”2 In other words, to avoid dealing with
certain “hot potato” issues, Congress might hand
them off to others.
2 Sotirios A. Barber, On What the Constitution
Means (Baltimore, MD: Johns Hopkins University
Press, 1984), 177.
Even from this brief discussion, you may be able to

see that the delegation of powers issue is tricky:
although, in theory, Congress should not dole out its
lawmaking authority, as a matter of practical and
reasonable politics, it does so.
Not surprisingly, the Supreme Court has found itself

enmeshed in this debate. As we saw in Chapter 3’s
discussion of Curtiss-Wright, it has been asked to
determine whether particular delegations of power
are appropriate, constitutionally speaking, and, as in
that case, the Court generally has upheld such
delegations, even if they involve domestic issues.
Wayman v. Southard (1825) was the Court’s first
major ruling on the delegation of domestic powers.
This dispute, unlike most in this area, involved a
congressional grant of lawmaking authority to the
courts, not to the executive. The case asked the
justices to determine whether a section of the
Judiciary Act of 1789, which gave the courts power
to “make and establish all necessary laws” for the
conduct of judicial business, constituted a violation
of the separation of powers doctrine and, as such, an
unconstitutional delegation of power.
Writing for the Court in Wayman, Chief Justice John

Marshall responded pragmatically. He sought to
balance the letter of the Constitution with the
practical concerns facing Congress by formulating
the following standard: the legislature must itself
“entirely” regulate “important subjects,” but for
“those of less interest” it can enact a general
provision and authorize “those who are to act under
such general provisions to fill up the details.” Put
simply, Marshall established a different set of rules
for the delegation of power, with the permissibility of
delegation varying by the importance of the subject
under regulation. Applying this standard to the
delegation of power in the 1789 Judiciary Act, he
found that Congress could grant courts authority to
promulgate their own rules.
Wayman—in theory—created an important precedent

for subsequent Courts to follow. We say “in theory”
because for the next century or so, never once did
the Supreme Court invalidate a congressional
delegation of power, but neither did it quite follow
Marshall’s standard. Rather, it was even more
generous to Congress, allowing delegations over
matters big and small.
Perhaps recognizing that the Court’s approach to

delegation of powers problems required clarification,
Chief Justice William Howard Taft—a former
president of the United States—set out to do just
that in Hampton & Co. v. United States (1928). At
issue was the Fordney-McCumber Act of 1922, in
which Congress established a tariff commission
within the executive branch and permitted the
president to increase or decrease tariffs on imported
goods by as much as 50 percent. Because Congress
gave the president (and the commission) virtually
unlimited discretion to adjust rates, an import
company challenged the act as a violation of the
separation of powers doctrine. The company argued
that Congress had provided the president with what
was lawmaking power, and immense, unfettered
power at that. It went so far as to say that “All lines
of demarcation between legislative and executive
powers are forever removed” were the Court to
uphold the delegation.
Writing for a unanimous Court, Taft disagreed: “In

determining what [Congress] may do in seeking
assistance from another branch, the extent and
character of that assistance must be fixed according
to common sense and the inherent necessities of the
governmental coordination.” So long as Congress
“shall lay down by legislative act an intelligible
principle to which the person or body authorized to
[exercise the delegated authority] is directed to
conform,” Taft wrote, “such legislative action is not a
forbidden delegation of legislative power.”
For nearly a decade the Court seemed quite willing

to accept Taft’s intelligible principle approach to
congressional delegations. But in 1935 the Court
dealt Congress and the president harsh blows when
it struck down provisions of the National Industrial
Recovery Act (NIRA) of 1933 as excessive
delegations of power. Box 5-1 describes the
circumstances surrounding these cases—Panama
Refining Company v. Ryan and A. L. A. Schechter
Poultry Corp. v. United States—and the Court’s
rulings in them. The NIRA was a major piece of the
New Deal legislation designed to pull the nation out
of the Great Depression. In Panama, Congress had
allowed the president to prohibit the shipment in
interstate commerce of oil produced in excess of
state quotas; in Schechter, Congress had authorized
the president to approve fair competition codes and
standards if representatives of a particular industry
recommended he do so. In both instances, the Court
struck down the delegations of power as
unconstitutional.
Because Congress passed the NIRA under its power

to regulate interstate commerce, we take up the
Court’s reasons for these decisions from a somewhat
different angle in Chapter 7. For now, let us first
consider these cases from a delegation of powers
perspective: Did earlier precedent, particularly
Wayman and Hampton, necessarily lead to these
outcomes? The Court undoubtedly thought so: by
wide margins, it justified its opinions in Panama and
Schechter as firmly grounded in past decisions.
Eight of the nine justices agreed with the majority
opinion in Panama, and the one dissenting justice,
Benjamin Cardozo, joined the others in Schechter,
noting that this law constituted “delegation running
riot.”
Box 5-1 The Court’s Decisions in Panama and
Schechter Poultry
We highlight Justice Cardozo’s opinions in

these cases because he was the only justice to
write separately. (Justice Stone joined his
concurrence in Schechter.)
Table 5-1
Was the Court on firm legal ground? One way to

think about this question is to compare the Court’s
rulings here with those in Wayman and Hampton.
Were the NIRA delegations of power broader than
those in Hampton? Or did they not meet Marshall’s
standard in Wayman? Were the NIRA delegations of
a different character? Note that in Schechter trade
association and other industry groups were given
some authority to prepare regulations (subject to
presidential approval). Should it matter that
Congress seemed to have delegated some legislative
authority to people outside the government?
Another approach to thinking about the invalidation

of the delegations in 1935 is to consider the briefs
and arguments in the cases. Before the Supreme
Court decided Panama, a federal court of appeals
had upheld the law as a constitutional use of
congressional commerce powers and, in so doing,
gave “very casual treatment to the delegation issue,”
noting simply that it met previously set standards.
When the oil company appealed the decision, U.S.
attorneys responded with a 195-page brief filed with
the Supreme Court. Apparently, “lulled . . . into a
false sense of security” by the lower court ruling and
believing that “precedent [was] uniformly on their
side,” the United States devoted only three of those
195 pages to the delegation of powers issue. Indeed,
the matter probably would not have been seriously
considered had it not been for oral arguments.
There, the lawyers for the oil company hammered
away at both issues—the delegation of powers and
the commerce clause—arguing that Congress had
“laid down no rule or criterion to guide or limit the
President in the orders that he may promulgate.”3
3 Peter H. Irons, The New Deal Lawyers (Princeton,

NJ: Princeton University Press, 1982), 69, 70, 71, 93.
At the end of the day, many scholars suggest that the

justices were merely using the delegation of powers
as an excuse to strike down New Deal legislation
that they fundamentally and ideologically opposed.4
Whether this is true we leave for you to decide. More
important for now is that the rulings in Panama and
Schechter were anomalies. For reasons we offer
later, by 1937 the Court had begun to uphold New
Deal legislation, and by the end of the decade it was
allowing for all sorts of delegations of power by
Congress to a diverse range of executive agencies,
some of which are listed in Table 5-1.
4 Perhaps now you can see why many observers

thought Curtiss-Wright would win its case. It
brought its challenge to a congressional delegation
of power to the president in 1936, just one year after
Panama Refining Co. and Schechter Poultry. Recall
from Chapter 3, though, that the Court upheld the
delegation in Curtiss-Wright by differentiating
between foreign and domestic affairs.
What can we conclude about congressional

delegations of power? Some analysts suggest that
the Court’s rulings in 1935 forced Congress to be
more specific in the guidelines it sets out. Is that
accurate? As noted in Table 5-1, many executive
agencies wield power that is as far-reaching as what
the Court struck in the mid-1930s, but since 1936
the justices have not overturned a federal law
explicitly on excessive delegation grounds. True, a
few of the most suspect laws were never tested in
the Court, but many observers have concluded that
Congress can pretty much delegate as it sees fit.
An interesting example is Mistretta v. United States

(1989), in which the Court scrutinized an act of
Congress designed to minimize judicial discretion in
sentencing. The Court’s opinion takes us back to
Wayman v. Southard and even Schecter and Panama
Refining Co.
Mistretta v. United States 488 U.S. 361 (1989)
court/488/361.html
Vote: 8 (Blackmun, Brennan,5 Kennedy, Marshall,

O’Connor, Rehnquist, Stevens, White)
1 (Scalia)
5 Brennan joined the majority in all but footnote

11 of its opinion, which dealt with the death
penalty.
OPINION OF THE COURT: Blackmun

DISSENTING OPINION: Scalia
Facts:
Concerned about wide disparities in sentences
imposed by federal court judges, Congress
enacted the Sentencing Reform Act of 1984, which
created the U.S. Sentencing Commission as “an
independent commission in the judicial branch of
government.” The commission was empowered to
create sentencing guidelines for all federal
offenses, to which lower court judges generally
would be bound. It was to have seven members,
nominated by the president and confirmed by the
Senate. Three of its members, at a minimum, were
to be federal court judges, and no more than four
members could be of the same political party.
The commission fulfilled its charge, promulgating

sentencing guidelines for federal offenses, but the
federal courts were not in agreement over the
guidelines’ constitutionality. More than 150 lower
court judges found them constitutionally defective,
while about 100 upheld them.
In Mistretta v. United States the lower federal

court judge had upheld the plan, but the
arguments of John Mistretta, who had been
convicted of three counts of selling cocaine, were
similar to those proffered by judges who did not
approve of the guidelines. Of particular relevance
here was Mistretta’s charge that the act violated
delegation of powers principles by giving the
commission “excessive legislative authority.”
Arguments:
For the petitioner, John M. Mistretta:
The Sentencing Commission violates the

principle of separation of powers because it
includes Article III judges. The Constitution
limits judges to deciding only actual cases or
controversies. The unelected judges on the
commission are making substantive law with
political policy implications, which is a
legislative function. Their involvement also
weakens confidence in their impartiality.
The president has too much control over the
commission members through his appointment
and removal powers, which threatens the
independence of the judicial branch.
The delegation of power is excessive because
Congress did not provide an adequate
intelligible principle for the commission to
follow. Although Congress placed outer limits
on the commission’s task, the legislature gave
commission members control of vast policy
areas without directions and left fundamental
policy decisions and substantive moral
judgments to them.

States:
The text of the Constitution does not prohibit
judges from serving in executive positions, and
historically the practice has been accepted.
Examination of the sentencing process is a
neutral function, and having judges recuse
themselves when necessary alleviates
concerns about judicial impartiality.
The president’s removal power over the
commission does not implicate the
independence of the judiciary because the
president is only authorized to remove the
judges from their positions on the commission
and cannot reach them as Article III judges.
Congress provided detailed instructions to the
commission, including the goals of
punishment, structure of the sentencing
guidelines, and general appropriateness and
length of terms of imprisonment for various
offenses and offenders. This is enough to be an
intelligible principle for the commission.
Justice Blackmun Delivered the Opinion of the

Court.
Petitioner argues that in delegating the power to
promulgate sentencing guidelines for every
federal criminal offense to an independent
Sentencing Commission, Congress has granted
the Commission excessive legislative discretion in
violation of the constitutionally based
nondelegation doctrine. We do not agree.
The nondelegation doctrine is rooted in the

principle of separation of powers that underlies
our tripartite system of government. The
Constitution provides that “[a]ll legislative Powers
herein granted shall be vested in a Congress of
the United States,” and we long have insisted that
“the integrity and maintenance of the system of
government ordained by the Constitution”
mandate that Congress generally cannot delegate
its legislative power to another Branch. We also
have recognized, however, that the separation-of-
powers principle, and the nondelegation doctrine
in particular, do not prevent Congress from
obtaining the assistance of its coordinate
Branches. In a passage now enshrined in our
jurisprudence, Chief Justice Taft, writing for the
Court, explained our approach to such cooperative
ventures: “In determining what [Congress] may do
in seeking assistance from another branch, the
extent and character of that assistance must be
fixed according to common sense and the inherent
necessities of the governmental coordination.” J.
W. Hampton, Jr., & Co. v. United States (1928). So
long as Congress “shall lay down by legislative act
an intelligible principle to which the person or
body authorized to [exercise the delegated
authority] is directed to conform, such legislative
action is not a forbidden delegation of legislative
power.”
Applying this “intelligible principle” test to

congressional delegations, our 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. . .
.
Until 1935, this Court never struck down a

challenged statute on delegation grounds. . . .
After invalidating in 1935 two statutes as
excessive delegations, see Schechter Poultry Corp.
v. United States and Panama Refining Co. v. Ryan,
we have upheld, again without deviation,
Congress’ ability to delegate power under broad
standards.
In light of our approval of . . . broad delegations,

we harbor no doubt that Congress’ delegation of
authority to the Sentencing Commission is
sufficiently specific and detailed to meet
constitutional requirements. Congress charged
the Commission with three goals: to “assure the
meeting of the purposes of sentencing as set
forth” in the Act; to “provide certainty and
fairness in meeting the purposes of sentencing,
avoiding unwarranted sentencing disparities
among defendants with similar records . . . while
maintaining sufficient flexibility to permit
individualized sentences,” where appropriate; and
to “reflect to the extent practicable, advancement
in knowledge of human behavior as it relates to
the criminal justice process.” Congress further
specified four “purposes” of sentencing that the
Commission must pursue in carrying out its
mandate: “to reflect the seriousness of the offense,
to promote respect for the law, and to provide just
punishment for the offense”; “to afford adequate
deterrence to criminal conduct”; “to protect the
public from further crimes of the defendant”; and
“to provide the defendant with needed . . .
correctional treatment.”
In addition, Congress prescribed the specific tool

—the guidelines system—for the Commission to
use in regulating sentencing. More particularly,
Congress directed the Commission to develop a
system of “sentencing ranges” applicable “for
each category of offense involving each category
of defendant.” . . .
To guide the Commission in its formulation of

offense categories, Congress directed it to
consider seven factors [such as] . . . the
aggravating and mitigating circumstances of the
crime; . . . the public concern generated by the
crime; [and] the deterrent effect that a particular
sentence may have on others. . . . Congress set
forth 11 factors for the Commission to consider in
establishing categories of defendants. These
include the offender’s age, education, vocational
skills, mental and emotional condition, physical
condition (including drug dependence), previous
employment record, family ties and
responsibilities, community ties, role in the
offense, criminal history, and degree of
dependence upon crime for a livelihood. Congress
also prohibited the Commission from considering
the “race, sex, national origin, creed, and socio-
economic status of offenders,” and instructed that
the guidelines should reflect the “general
inappropriateness” of considering certain other
factors, such as current unemployment, that might
serve as proxies for forbidden factors.
In addition to these overarching constraints,

Congress provided even more detailed guidance to
the Commission about categories of offenses and
offender characteristics. [For example,] Congress .
. . directed that the Commission assure a
substantial term of imprisonment for an offense
constituting a third felony conviction, for a career
felon, for one convicted of a managerial role in a
racketeering enterprise, for a crime of violence by
an offender on release from a prior felony
conviction, and for an offense involving a
substantial quantity of narcotics. . . . In other
words, although Congress granted the
Commission substantial discretion in formulating
guidelines, in actuality it legislated a full hierarchy
of punishment—from near maximum
imprisonment, to substantial imprisonment, to
some imprisonment, to alternatives—and
stipulated the most important offense and offender
characteristics to place defendants within these
categories.
We cannot dispute petitioner’s contention that the

Commission enjoys significant discretion in
formulating guidelines. The Commission does have
discretionary authority to determine the relative
severity of federal crimes and to assess the
relative weight of the offender characteristics that
Congress listed for the Commission to consider. . .
. The Commission also has significant discretion to
determine which crimes have been punished too
leniently, and which too severely. . . .
But our cases do not at all suggest that

delegations of this type may not carry with them
the need to exercise judgment on matters of
policy. . . .
The Act sets forth more than merely an

“intelligible principle” or minimal standards. One
court has aptly put it: “The statute outlines the
policies which prompted establishment of the
Commission, explains what the Commission
should do and how it should do it, and sets out
specific directives to govern particular situations.”
[Petitioner also argues that] locating the

Commission within the Judicial Branch [may]
undermin[e] the integrity of the Judicial Branch or
. . . expand[] the powers of the Judiciary beyond
constitutional bounds by uniting within the Branch
the political or quasi-legislative power of the
Commission with the judicial power of the courts.
[We disagree.] [A]lthough the Commission is

located in the Judicial Branch, its powers are not
united with the powers of the Judiciary in a way
that has meaning for separation-of-powers
analysis. Whatever constitutional problems might
arise if the powers of the Commission were vested
in a court, the Commission is not a court, does not
exercise judicial power, and is not controlled by or
accountable to members of the Judicial Branch. . .
.
We conclude that in creating the Sentencing
Commission—an unusual hybrid in structure and
authority—Congress neither delegated excessive
legislative power nor upset the constitutionally
mandated balance of powers among the
coordinate Branches. The Constitution’s structural
protections do not prohibit Congress from
delegating to an expert body located within the
Judicial Branch the intricate task of formulating
sentencing guidelines consistent with such
significant statutory direction as is present here.
Nor does our system of checked and balanced
authority prohibit Congress from calling upon the
accumulated wisdom and experience of the
Judicial Branch in creating policy on a matter
uniquely within the ken of judges. Accordingly, we
hold that the Act is constitutional.
The judgment of United States District Court for

the Western District of Missouri is affirmed
Affirmed.

I dissent from today’s decision because I can find
no place within our constitutional system for an
agency created by Congress to exercise no
governmental power other than the making of
laws. . . .
Petitioner’s most fundamental and far-reaching

challenge to the Commission is that Congress’
commitment of such broad policy responsibility to
any institution is an unconstitutional delegation of
legislative power. It is difficult to imagine a
principle more essential to democratic
government than that upon which the doctrine of
unconstitutional delegation is founded: Except in a
few areas constitutionally committed to the
Executive Branch, the basic policy decisions
governing society are to be made by the
Legislature. . . .
But while the doctrine of unconstitutional

delegation is unquestionably a fundamental
element of our constitutional system, it is not an
element readily enforceable by the courts. Once it
is conceded, as it must be, that no statute can be
entirely precise, and that some judgments, even
some judgments involving policy considerations,
must be left to the officers executing the law and
to the judges applying it, the debate over
unconstitutional delegation becomes a debate not
over a point of principle but over a question of
degree. As Chief Justice Taft expressed the point
for the Court in the landmark case of J.W.
Hampton, Jr., & Co. v. United States (1928), the
limits of delegation “must be fixed according to
common sense and the inherent necessities of the
governmental co-ordination.” Since Congress is no
less endowed with common sense than we are,
and better equipped to inform itself of the
“necessities” of government . . . it is small wonder
that we have almost never felt qualified to second-
guess Congress regarding the permissible degree
of policy judgment that can be left to those
executing or applying the law. . . .
In short, I fully agree with the Court’s rejection of

petitioner’s contention that the doctrine of
unconstitutional delegation of legislative authority
has been violated because of the lack of
intelligible, congressionally prescribed standards
to guide the Commission.
Precisely because the scope of delegation is

largely uncontrollable by the courts, we must be
particularly rigorous in preserving the
Constitution’s structural restrictions that deter
excessive delegation. The major one, it seems to
me, is that the power to make law cannot be
exercised by anyone other than Congress, except
in conjunction with the lawful exercise of
executive or judicial power. . . .
In the present case . . . [we have] a pure

delegation of legislative power . . . before us. It is
irrelevant whether the standards are adequate,
because they are not standards related to the
exercise of executive or judicial powers; they are,
plainly and simply, standards for further
legislation.
The lawmaking function of the Sentencing

Commission is completely divorced from any
responsibility for execution of the law or
adjudication of private rights under the law. It is
divorced from responsibility for execution of the
law . . . because the Commission neither exercises
any executive power on its own, nor is subject to
the control of the President who does. The only
functions it performs [are legislative]. And the
Commission’s lawmaking is completely divorced
from the exercise of judicial powers since, not
being a court, it has no judicial powers itself, nor
is it subject to the control of any other body with
judicial powers. The power to make law at issue
here, in other words, is not ancillary but quite
naked. . . .
By reason of today’s decision, I anticipate that

Congress will find delegation of its lawmaking
powers much more attractive in the future. If
rulemaking can be entirely unrelated to the
exercise of judicial or executive powers, I foresee
all manner of “expert” bodies, insulated from the
political process, to which Congress will delegate
various portions of its lawmaking responsibility.
How tempting to create an expert Medical
Commission (mostly M.D.’s, with perhaps a few
Ph.D.’s in moral philosophy) to dispose of such
thorny, “no-win” political issues as the withholding
of life-support systems in federally funded
hospitals, or the use of fetal tissue for research.
This is an undemocratic precedent that we set—
not because of the scope of the delegated power,
but because its recipient is not one of the three
Branches of Government. The only governmental
power the Commission possesses is the power to
make law; and it is not the Congress.
Mistretta provides a nice example of the debate over

functionalism versus formalism in separation of
powers cases, with Justice Harry Blackmun’s
majority opinion favoring the former, and Justice
Antonin Scalia’s dissent, the latter. Blackmun
acknowledges that Congress has delegated
“significant” lawmaking power, but he is willing to
allow the delegation, in part because the task at
hand calls for a high degree of expertise. Scalia
expresses deep misgivings about the nature of the
delegation here—pure lawmaking authority given to
a commission located in the judicial branch—and
where it may lead in the future. What is to prevent
Congress from delegating most, if not all, of its
lawmaking authority to an unaccountable
commission, he wonders.
Mistretta is also interesting because it indicates that

contemporary justices are no more likely to disallow
delegations than their post–New Deal predecessors
were.6 It is consistent with a long line of decisions in
which the Court has approved congressional
delegation of power to the president or other
executive officers.
6 For another contemporary example, see Loving v.

United States (1996), in which the Court again
noted, “Though in 1935 we struck down two
delegations for lack of an intelligible principle, A. L.
A. Schechter Poultry Corp. v. United States (1935),
and Panama Refining Co. v. Ryan (1935), we have
since upheld, without exception, delegations under
standards phrased in sweeping terms.”
But “no more likely” does not mean “totally unlikely.”

Recall that in Clinton v. City of New York (1998) the
Court struck down the line-item veto as a violation of
the presentment clause. Some of the briefs filed
against the veto also challenged it as an
unconstitutional delegation of power to the
president, an argument the lower court found
persuasive. As New York City’s bar association wrote
in an amicus curiae brief, the veto “rearranges the
very structure of our government, taking significant
responsibilities from Congress and transferring them
to the Executive. The allocation of power between
these branches is laid out in detail in the
Constitution, and Congress cannot change that
structure by legislative fiat.” Perhaps not wishing to
upset its long-standing doctrine on delegation of
powers, the majority found it “unnecessary” to
consider this claim. In a concurring opinion,
however, Justice Anthony Kennedy seemed
sympathetic:
That a congressional cession of power is

voluntary does not make it innocuous. The
Constitution is a compact enduring for more
than our time, and one Congress cannot yield up
its own powers, much less those of other
Congresses to follow. Abdication of responsibility
is not part of the constitutional design.
Whether Kennedy was simply responding to

arguments made in this case or advocating a return
to stricter enforcement of the nondelegation
doctrine we cannot say. What seems beyond
speculation is that this issue will not vanish
altogether in light of congressional incentives to
delegate some lawmaking power to the executive.
Congress and the Exercise of
Executive and Judicial Powers
The cases we discussed in the previous section share
a common thread: they involve cooperative relations
between Congress and another branch of
government, usually the executive. Congress was
delegating some of its lawmaking authority—be it
the establishment of tariff rates or the prohibition of
the shipment of “hot oil”—to an executive desiring or
perhaps even requesting such authority. But
Congress is not always so eager to give away its
powers; indeed, on many occasions and through
different devices, it has sought to exercise authority
over both the judicial and executive branches.
In Chapters 2 and 3 we discussed a congressional

attempt to take on judicial powers with passage of
the Religious Freedom Restoration Act of 1993
(RFRA), the law at issue in City of Boerne v. Flores
(1997). Aimed at undercutting the Court’s 1990
decision in Employment Division v. Smith, RFRA
directed the Court to use a particular standard of
law to adjudicate First Amendment free exercise
claims (see Chapters 2 and 3). But the justices would
have none of it. Not only did the majority overturn
RFRA, but it also rebuked the “political” branches
for attempting to usurp judicial power:
Our national experience teaches that the
Constitution is preserved best when each part of
the government respects both the Constitution
and the proper actions and determinations of the
other branches. When the Court has interpreted
the Constitution, it has acted within the province
of the Judicial Branch, which embraces the duty
to say what the law is. Marbury v. Madison.
When the political branches of the Government
act against the background of a judicial
interpretation of the Constitution already issued,
it must be understood that in later cases and
controversies the Court will treat its precedents
with the respect due them under settled
principles, including stare decisis, and contrary
expectations must be disappointed.
Have the justices extended such protection to the

executive branch? To address this question, let us
consider a device Congress developed to keep tabs
on the executive: the so-called legislative veto. This
kind of veto seems to flip the mandated lawmaking
process. Rather than following Article I procedures,
meaning that both houses of Congress pass bills
(bicameralism) and the president either signs or
vetoes them (presentment), under this practice the
executive branch makes policies that Congress can
veto by a vote of both houses, one house, or even a
committee. It should come as no surprise that the
legislative veto has been a source of contention
between presidents and Congresses, with the former
suggesting that it violates constitutional principles
and the latter arguing that it represents a way to
check all the lawmaking power Congress has
delegated to the executive branch.
When it was first developed, the legislative veto was

not all that contentious; to the contrary, it was part
of a quid pro quo between Congress and President
Herbert Hoover, who wanted “authority to
reorganize the executive branch without having to
submit a bill to Congress.” The legislature agreed to
go along, but only if either the Senate or the House
could turn down a reorganization plan. When
Congress passed the 1933 legislative appropriations
bill with that condition attached to it, the legislative
veto was born.
Although Hoover had agreed to the provision, he was

less than pleased when Congress actually used it the
following year to veto part of the reorganization
plan. His attorney general, William D. Mitchell,
decried the legislative veto as a violation of the
separation of powers doctrine. That sort of sparring
continued through the early 1980s, but the patterns
of debate were somewhat contradictory and
confusing. On one hand, until 1972 Congress used
the device rather sparingly, attaching it to only fifty-
one laws. Furthermore, it did not seem to be a
matter that either the president or Congress took
very seriously. Scholars have observed that
presidents rejected only a handful of laws solely
because they contained legislative vetoes and that in
those few instances Congress almost always
repassed the bill without the veto provision.
On the other hand, some of the laws providing

Congress with a veto over executive action have
been quite important. Under the War Powers
Resolution of 1973, for example, Congress may
direct the president to remove U.S. armed forces
engaged in foreign hostilities when there is no
declaration of war. Moreover, some presidents have
objected to the legislative veto. Dwight D.
Eisenhower loathed it, claiming that it violated
“fundamental constitutional principles.” Complaints
grew louder after the Nixon presidency, when
Congress sought to reassert itself over the executive
and enacted sixty-two statutes with legislative vetoes
between 1972 and 1979. In fact, in 1976 the House
of Representatives came close to approving a
proposal that would have made all rules enacted by
all agencies subject to a legislative veto.
This issue came to a head during the Carter

administration. Jimmy Carter, like Eisenhower,
thought legislative vetoes violated the constitution.
For that reason, he had the Justice Department join
Immigration and Naturalization Service v. Chadha as
a test. The result was the first U.S. Supreme Court
ruling centering specifically on the constitutionality
of the legislative veto. As you read the opinions in
the case, note that Chief Justice Warren Burger,
writing for the majority, and Justice Byron White, in
dissent, adopt wholly distinct approaches to
separation of powers problems. Burger suggests that
this sort of veto may be practical, but it is not
constitutional. Why not? And why does White believe
that the Court had committed a grave error?
Immigration and Naturalization Service v. Chadha;

the U.S. House of Representatives v. Immigration
and Naturalization Service; the U.S. Senate v.
Immigration and Naturalization Service 462 U.S.
919 (1983)
court/462/919.html

Vote: 7 (Blackmun, Brennan, Burger, Marshall,

O’Connor, Powell, Stevens)
2 (Rehnquist, White)

CONCURRING OPINION: Powell
DISSENTING OPINIONS: Rehnquist, White
Facts:
Jagdish Rai Chadha, an East Indian born in Kenya
and holder of a British passport, was admitted into
the United States in 1966 on a six-year student
visa. More than a year after his visa expired, in
October 1973, the Immigration and Naturalization
Service ordered Chadha to attend a hearing and
show cause why he should not be deported. After
two such hearings, an immigration judge in June
1974 ordered a suspension of Chadha’s
deportation, which meant that Chadha could stay
in the United States, because he was of “good
moral character” and would “suffer extreme
hardship” if deported.
Acting under a provision of the Immigration and

Nationality Act, the U.S. attorney general
recommended to Congress that Chadha be
allowed to remain in the United States in
accordance with the judge’s opinion. The act
states,
Upon application by any alien who is found by

the Attorney General to meet the
requirements of . . . this section the Attorney
General may in his discretion suspend
deportation of such alien. If the deportation of
any alien is suspended . . . a complete and
detailed statement of the facts and pertinent
provisions of the law in the case shall be
reported to the Congress with the reasons for
such suspension. Such reports shall be
submitted on the first day of each calendar
month in which Congress is in session.
Congress, in turn, had the authority to veto—by a

resolution passed in either house—the attorney
general’s decision. The act specifies,
[I]f during the session of the Congress at

which a case is reported, or prior to the close
of the session of the Congress next following
the session at which a case is reported, either
the Senate or the House of Representatives
passes a resolution stating in substance that it
does not favor the suspension of such
deportation, the Attorney General shall
thereupon deport such alien or authorize the
alien’s voluntary departure at his own expense
under the order of deportation in the manner
provided by law. If, within the time above
specified, neither the Senate nor the House of
Representatives shall pass such a resolution,
the Attorney General shall cancel deportation
proceedings.
Jagdish Chadha, shown here with his wife,

Therese Lorentz, and their two daughters,
successfully challenged the constitutionality of the
legislative veto during his legal efforts to avoid
deportation.
Terrance McCarthy Photography
For a while it appeared as if Chadha’s suspension

of deportation was secure, but at the last moment
Congress asserted its veto power. Congress had
until December 19, 1975, to take action, and on
December 12 the chair of a House committee
introduced a resolution opposing the “granting of
permanent residence in the United States to [six]
aliens,” including Chadha. Four days later the
House of Representatives passed the motion. No
debate or recorded vote occurred; indeed, it was
never really clear why the chamber took the
action.
That vote set the stage for a major showdown
between Congress and the executive branch.
Chadha filed a suit, first with the immigration
court that reopened his deportation proceedings
to implement the House’s order and then with a
federal court of appeals, asking that they declare
the legislative veto unconstitutional. The Carter
administration joined him to argue likewise. The
president agreed with Chadha’s basic position,
and administration attorneys thought his suit
provided a great test case because it aptly
displayed the problems with the legislative veto: in
this case, as apparently in others, there was no
debate, no recorded vote, and no approval by the
Senate. Given the importance of the dispute, the
court of appeals asked both the House and the
Senate to file amicus curiae briefs supporting the
veto practice, but in 1980 it ruled against their
position, finding that the device violated
separation of powers principles.
By the time the case was first argued before the

Supreme Court, in February 1982, the Carter
administration was out and the Reagan
administration was in. During his 1980 campaign,
Ronald Reagan claimed to support the legislative
veto, but once in office, he instructed the attorney
general to go forward with the Chadha case. The
Justice Department took a formalist approach,
emphasizing that the legislative veto amounts to
an exercise of congressional lawmaking authority
but does not comport with the standards of
bicameralism and presentment outlined Article I,
Section 7, which “explicitly requires that all
congressional actions constituting the exercise of
legislative power receive the concurrence of both
Houses and be presented to the President for his
approval or disapproval.” Under the legislative
veto procedure, no bill is presented to the
president; nor must both houses approve the veto.
Rather, it authorizes one House of Congress to
participate in the execution of a previously
enacted law.
The House and the Senate, which had become

parties to the suit, responded with an argument
emphasizing a more functional approach to the
separation doctrine:
The Constitution provides separately for each

of the three Branches, and describes each
Branch as vested with the respective functions
of legislating, executing, and judging. But the
Constitution does not say that the three great
functions shall at all times be kept separate
and independent of each other, or that the
three functions can never be blended or mixed
or delegated as among the three Branches.
The notion of total separation of the powers
“central or essential” to the operation of the
three great departments is an illogical and
impractical formulation of the separation
doctrine, not a constitutional command.
They also noted that the legislative veto was a

“pragmatic” and necessary device reflecting the
realities of modern government.
The Court apparently had some difficulty sorting

through these claims. After the first round of oral
arguments, on the last day of the term, it ordered
new arguments, which were held on the first day
of the following term. But it took the Court until
June 23—almost the whole term—to issue its
decision. One reason for the delay was the
delicate nature of the problem confronting the
justices; indeed, during their initial conference
over the case, Justice Lewis Powell recorded Chief
Justice Burger as saying the veto “issue is highly
sensitive politically. Wish we could avoid the
issue.” After the Court voted to render legislative
vetoes unconstitutional, a worried Chief Justice
Burger circulated six drafts of his opinion,
knowing that it was going to get “microscopic—
and not always sympathetic!—scrutiny from across
the park [that is, in Congress].”
Arguments:
For the appellant, Immigration and
Naturalization Service et al.:
In Article I, Sections 1 and 7, the Constitution is

emphatic that all bills must receive bicameral
approval and be presented to the president.
The framers expressly provided procedures for
situations in which they intended a departure
from the bicameral process, but the legislative
veto is not one of those.
If the act were upheld, Congress could
incorporate the legislative veto into all future
legislation, destroying the line between
legislative and executive powers.
For the appellee, the U.S. House
and the U.S. Senate:
The act merely delegates certain limited quasi-
legislative functions to the attorney general,
while retaining legislative power for Congress
by reserving the power to make final decisions.
Instead of an infringement of executive power,
it is a restrained exercise of the congressional
power to cancel deportations.
The Constitution does not require the three
branches to be completely sealed from each
other. Instead, it supports a blending of
functions. Modern separation doctrine should
reflect political realities; it should be pragmatic
and flexible.
Chief Justice Burger Delivered the Opinion of

the Court.
We begin, of course, with the presumption that the

challenged statute is valid. Its wisdom is not the
concern of the courts; if a challenged action does
not violate the Constitution, it must be sustained .
..
By the same token, the fact that a given law or

procedure is efficient, convenient, and useful in
facilitating functions of government, standing
alone, will not save it if it is contrary to the
Constitution. Convenience and efficiency are not
the primary objectives—or the hallmarks—of
democratic government, and our inquiry is
sharpened, rather than blunted, by the fact that
congressional veto provisions are appearing with
increasing frequency in statutes which delegate
authority to executive and independent agencies. .
..
Explicit and unambiguous provisions of the

Constitution prescribe and define the respective
functions of the Congress and of the Executive in
the legislative process. [Art. I, §7 says]: “Every Bill
which shall have passed the House of
Representatives and the Senate, shall, before it
becomes a law, be presented to the President of
the United States; if he approve he shall sign it,
but if not he shall return it, with his Objections to
that House in which it shall have originated . . .
and proceed to reconsider it.”
The Presentment Clauses

The records of the Constitutional Convention
reveal that the requirement that all legislation be
presented to the President before becoming law
was uniformly accepted by the Framers.
Presentment to the President and the Presidential
veto were considered so imperative that the
draftsmen took special pains to assure that these
requirements could not be circumvented.
The decision to provide the President with a

limited and qualified power to nullify proposed
legislation by veto was based on the profound
conviction of the Framers that the powers
conferred on Congress were the powers to be
most carefully circumscribed. It is beyond doubt
that lawmaking was a power to be shared by both
Houses and the President. . . .
The President’s role in the lawmaking process also

reflects the Framers’ careful efforts to check
whatever propensity a particular Congress might
have to enact oppressive, improvident, or ill-
considered measures.
Bicameralism
The bicameral requirement of Art. I, §.. 7, was of
scarcely less concern to the Framers than was the
Presidential veto, and indeed the two concepts are
interdependent. By providing that no law could
take effect without the concurrence of the
prescribed majority of the Members of both
Houses, the Framers reemphasized their belief,
already remarked upon in connection with the
Presentment Clauses, that legislation should not
be enacted unless it has been carefully and fully
considered by the Nation’s elected officials.
We see therefore that the Framers were acutely

conscious that the bicameral requirement and the
Presentment Clauses would serve essential
constitutional functions. . . . It emerges clearly
that the prescription for legislative action in Art. I,
§§ 1, 7, represents the Framers’ decision that the
legislative power of the Federal Government be
exercised in accord with a single, finely wrought
and exhaustively considered, procedure. . . .
Examination of the action taken here by one

House . . . reveals that it was essentially
legislative in purpose and effect. In purporting to
exercise power defined in Art. I, § 8 . . . to
“establish an uniform Rule of Naturalization,” the
House took action that had the purpose and effect
of altering the legal rights, duties, and relations of
persons, including the Attorney General,
Executive Branch officials and Chadha, all outside
the Legislative Branch. . . . The one-House veto
operated in these cases to overrule the Attorney
General and mandate Chadha’s deportation;
absent the House action, Chadha would remain in
the United States. Congress has acted, and its
action has altered Chadha’s status.
The legislative character of the one-House veto in

these cases is confirmed by the character of the
congressional action it supplants. Neither the
House of Representatives nor the Senate contends
that, absent the veto provision . . . either of them,
or both of them acting together, could effectively
require the Attorney General to deport an alien
once the Attorney General, in the exercise of
legislatively delegated authority, had determined
the alien should remain in the United States.
Without the challenged provision, this could have
been achieved, if at all, only by legislation
requiring deportation.
The nature of the decision implemented by the

one-House veto in these cases further manifests
its legislative character. After long experience
with the clumsy, time-consuming private bill
procedure, Congress made a deliberate choice to
delegate to the Executive Branch, and specifically
to the Attorney General, the authority to allow
deportable aliens to remain in this country in
certain specified circumstances. It is not disputed
that this choice to delegate authority is precisely
the kind of decision that can be implemented only
in accordance with the procedures set out in Art.
I. Disagreement with the Attorney General’s
decision on Chadha’s deportation—that is,
Congress’ decision to deport Chadha—no less than
Congress’ original choice to delegate to the
Attorney General the authority to make that
decision, involves determinations of policy that
Congress can implement in only one way;
bicameral passage followed by presentment to the
President. Congress must abide by its delegation
of authority until that delegation is legislatively
altered or revoked. . . .
Since it is clear that the action by the House was

not within any of the express constitutional
exceptions authorizing one House to act alone,
and equally clear that it was an exercise of
legislative power, that action was subject to the
standards prescribed in Art. I. The bicameral
requirement, the Presentment Clauses, the
President’s veto, and Congress’ power to override
a veto were intended to erect enduring checks on
each Branch and to protect the people from the
improvident exercise of power by mandating
certain prescribed steps. To preserve those
checks, and maintain the separation of powers,
the carefully defined limits on the power of each
Branch must not be eroded. To accomplish what
has been attempted by one House of Congress in
this case requires action in conformity with the
express procedures of the Constitution’s
prescription for legislative action: passage by a
majority of both Houses and presentment to the
President. . . .
We hold that the congressional veto provision . . .

is unconstitutional. Accordingly, the judgment of
the Court of Appeals is
Affirmed.
JUSTICE WHITE, dissenting.

The prominence of the legislative veto mechanism
in our contemporary political system and its
importance to Congress can hardly be overstated.
It has become a central means by which Congress
secures the accountability of executive and
independent agencies. Without the legislative
veto, Congress is faced with a Hobson’s choice:
either to refrain from delegating the necessary
authority, leaving itself with a hopeless task of
writing laws with the requisite specificity to cover
endless special circumstances across the entire
policy landscape, or, in the alternative, to abdicate
its lawmaking function to the Executive Branch
and independent agencies. To choose the former
leaves major national problems unresolved; to opt
for the latter risks unaccountable policymaking by
those not elected to fill that role. Accordingly, over
the past five decades, the legislative veto has been
placed in nearly 200 statutes. The device is known
in every field of governmental concern:
reorganization, budgets, foreign affairs, war
powers, and regulation of trade, safety, energy, the
environment, and the economy. . . .
The Court’s holding today that all legislative-type
action must be enacted through the lawmaking
process ignores that legislative authority is
routinely delegated to the Executive Branch, to
the independent regulatory agencies, and to
private individuals and groups. . . .
If Congress may delegate lawmaking power to

independent and Executive agencies, it is most
difficult to understand Art. I as prohibiting
Congress from also reserving a check on
legislative power for itself. Absent the veto, the
agencies receiving delegations of legislative or
quasi-legislative power may issue regulations
having the force of law without bicameral
approval and without the President’s signature. It
is thus not apparent why the reservation of a veto
over the exercise of that legislative power must be
subject to a more exacting test. In both cases, it is
enough that the initial statutory authorizations
comply with the Art. I requirements.
Under the Court’s analysis, the Executive Branch

and the independent agencies may make rules
with the effect of law while Congress, in whom the
Framers confided the legislative power . . . may
not exercise a veto which precludes such rules
from having operative force. If the effective
functioning of a complex modern government
requires the delegation of vast authority which, by
virtue of its breadth, is legislative or “quasi-
legislative” in character, I cannot accept that Art. I
—which is, after all, the source of the
nondelegation doctrine—should forbid Congress to
qualify that grant with a legislative veto.
The Court of Appeals struck [the legislative veto]
as violative of the constitutional principle of
separation of powers. It is true that the purpose of
separating the authority of Government is to
prevent unnecessary and dangerous concentration
of power in one branch. . . .
But the history of the separation of powers

doctrine is also a history of accommodation and
practicality. Apprehensions of an overly powerful
branch have not led to undue prophylactic
measures that handicap the effective working of
the National Government as a whole. The
Constitution does not contemplate total separation
of the three branches of Government.
Our decisions reflect this judgment. [T]he Court,

recognizing that modern government must
address a formidable agenda of complex policy
issues, countenanced the delegation of extensive
legislative authority to Executive and independent
agencies. J. W. Hampton & Co. v. United States
(1928). The separation-of-powers doctrine has
heretofore led to the invalidation of Government
action only when the challenged action violated
some express provision in the Constitution. [For
example], in . . . Myers v. United States (1926),
congressional action compromised the
appointment power of the President. . . . Because
we must have a workable efficient Government,
this is as it should be.
I regret that I am in disagreement with my

colleagues on the fundamental questions that
these cases present. But even more I regret the
destructive scope of the Court’s holding. It reflects
a profoundly different conception of the
Constitution than that held by the courts which
sanctioned the modern administrative state.
Today’s decision strikes down in one fell swoop
provisions in more laws enacted by Congress than
the Court has cumulatively invalidated in its
history. I fear it will now be more difficult to
insur[e] that the fundamental policy decisions in
our society will be made not by an appointed
official, but by the body immediately responsible
to the people.
In theory, the Court banished legislative vetoes from

the government system because they undermined
Article I, Section 7: Congress was making law
without presenting the bill to the president or, in the
case of the one-house legislative veto in Chadha,
passage by both houses. (A two-house legislative
veto would violate the presentment requirement and
so would also be unconstitutional.) In practice,
however, that’s only partially true. Since Chadha,
Congress has not exercised the legislative veto to
overturn decisions of executive agencies, but
apparently Congress allows committees to veto
agency requests to move funds from one program to
another. This may be considered a type of legislative
veto because Congress is taking action without
presenting a bill to the president.7
7 In 1996 Congress took a stab at correcting some

the constitutional deficiencies of the existing
legislative veto. Under the Congressional Review Act
of 1996, Congress may rescind an agency rule by
passing a resolution of disapproval, which cannot be
filibustered, by a majority vote in both houses. Such
a resolution must be presented to and approved by
the president. Because the president must approve
of the “veto,” this practice would seem to lack teeth:
it would be unusual for a president to sign a
disapproval resolution against his own agencies. Yet
it could be a valuable tool during presidential-party
transitions (e.g., from Bush to Obama), enabling
Congress to “fast-track” rescissions of agency rules.
See Charlie Savage, “Democrats Look for Ways to
Undo Late Bush Administration Rules,” New York
Times, January 11, 2009, A10; and Note, “The
Mysteries of the Congressional Review Act,”
Harvard Law Review 122 (2009): 2162–2183.
In this particular instance, then, the U.S. Supreme

Court may have been the loser: its decision settling
the Chadha dispute was unacceptable to the political
branches and, to some extent, was ignored by them.
Why? More to the point, why do executive agencies

and departments continue to respect the wishes of
Congress, even though they need not? One reason is
purely pragmatic: because departments and
agencies depend on Congress for fiscal support, they
relent, fearing retaliation from Congress. Another
reason is that implied by Justice White in his
dissenting opinion: Chadha “did not, and could not,
eliminate the conditions that gave rise to the
legislative veto: the desire of executive officials for
broad delegations of power, and the insistence of
Congress that it control those delegations without
having to pass another public law.”8
8 Louis Fisher, American Constitutional Law (New

York: McGraw-Hill, 1990), 231. For another
perspective on this case, see William N. Eskridge Jr.
and John Ferejohn, “The Article I, Section 7 Game,”
Georgetown Law Journal 80 (1992): 523–563.
Such a reaction, however, has not prevented the

Court from involving itself in reviewing other actions
by or acts of Congress challenged on separation of
powers grounds. An important example comes in
Bowsher v. Synar (1986), in which Congress again
sought to exercise a power given to the president—
the responsibility and authority to enforce the laws.
The suit involved a challenge to the constitutionality
of certain provisions of the Balanced Budget and
Emergency Deficit Control Act of 1985, better known
as the Gramm-Rudman-Hollings Act. While reading
this case, keep in mind the discussions of legislative
power in Chapter 3. Did the Court make clear the
distinction between legislative and executive
functions? Was the Court’s response to this statute
reasonable, or was Justice White correct when he
argued in dissent that the majority invalidated an
important piece of legislation on the basis of a trivial
objection, placing formalism above practicality?
Bowsher v. Synar 478 U.S. 714 (1986)

court/478/714.html

Vote: 7 (Brennan, Burger, Marshall, O’Connor,

Powell, Rehnquist, Stevens)
2 (Blackmun, White)

CONCURRING OPINION: Stevens
DISSENTING OPINIONS: Blackmun, White
Facts:
On December 12, 1985, President Reagan signed
into law the Balanced Budget and Emergency
Deficit Control Act, popularly known as the
Gramm-Rudman-Hollings bill. The legislation
attempted to control the federal budget deficit by
imposing automatic budget cuts when members of
Congress were unable or unwilling to exercise
sufficient fiscal restraint. The law established
maximum budget deficit levels for each year
beginning in 1986. The size of the deficit was to
decrease each year until fiscal 1991, when no
deficit would be allowed. If the federal budget
deficit in any year exceeded the maximum
allowed, across-the-board budget cuts would
automatically be imposed.
Triggering the cuts involved steps to be taken by

several government officials. First, the director of
the Office of Management and Budget (OMB) and
the director of the Congressional Budget Office
(CBO) would independently estimate the projected
deficit with program-by-program calculations.
Second, these estimates would be jointly reported
to the comptroller general of the United States.
Third, the comptroller general would review the
OMB and CBO reports and issue a final report
with recommendations. Fourth, the comptroller
general would send the report to the president,
who would issue an order mandating the
automatic budget cuts recommended by the
comptroller.
The statute’s reliance on the comptroller general

for the execution of this law presented a potential
constitutional problem. The comptroller general
heads the Government Accountability Office (GAO;
then named the General Accounting Office), an
agency created by Congress in 1921 to provide
independent audits of the financial activities of
executive agencies. The GAO is located within the
legislative branch, and the comptroller general,
although appointed by the president, is an
employee of Congress, not the White House.
Moreover, the comptroller general can be
removed from office only by impeachment or by a
joint resolution of Congress (subject to a
presidential veto) for one of several specified
causes, such as inefficiency or commission of a
felony. The problem with this arrangement,
especially to proponents of a formalistic approach
to interbranch interactions, was that it gave an
officer of the legislative branch, the comptroller
general, the power to execute important parts of
the law. Supporters of the law argued that the
comptroller general performs his tasks
independent of, and not subservient to, Congress.
Just hours after the bill was signed,

Representative Mike Synar (D-Okla.), who had
voted against it, filed suit against Comptroller
General Charles A. Bowsher to have the law
declared unconstitutional. At the same time, the
National Treasury Employees Union took legal
action to have the statute declared void. A three-
judge district court struck down the statutory
provisions that permitted an enforcement role for
the comptroller general. Bowsher, on behalf of
Congress, appealed.
Arguments:
For the appellant, Charles A. Bowsher,
comptroller general of the United
States:
The 1921 act creating the GAO was designed
to make it independent of both political
branches and to make the comptroller general
an independent officer of the United States
appointed for a fifteen-year nonrenewable term
by the president and confirmed by the Senate.
As an independent officer, the comptroller
general was delegated functions performed
since 1789 by the comptroller of the Treasury—
functions that are administrative and judicial.
The Court should apply the logic of Humphrey’s
Executor v. United States, holding that
commissioners of an agency are independent
of the president despite the president’s power
to remove commissioners for cause. Similarly,
congressional power to remove the comptroller
general for cause does not necessarily lead to
the comptroller general’s subservience to
Congress.
The functions of the comptroller general center
on fact-finding and reporting. Because this
Court has upheld delegations that include
functions that entail broader policy judgments,
delegation of ministerial functions should also
be upheld.
Comptroller General Charles A. Bowsher (left),

given enforcement authority under the Balanced
Budget and Emergency Deficit Control Act of
1985, was sued by Representative Mike Synar (D-
Okla.) (right), who challenged the constitutionality
of the law.
Terry Ashe/The LIFE Images Collection/Getty
Images
Terry Ashe/The LIFE Images Collection/Getty

Images
For the appellees, Mike Synar,

member of Congress, et al.:
The entire purpose of delegating powers to the
comptroller general is for Congress to avoid
political accountability; no one member of
Congress wants to be responsible for spending
cuts or more taxes. This is not a pragmatic
necessity that can properly justify a delegation
of power.
The act gives the comptroller general the
power to execute critical aspects of the act and
make decisions that are binding on the
president and the entire executive branch. The
separation of powers prohibits the comptroller
general from this level of involvement in the
execution of the act. First, he is an officer of
the legislative branch and is subject to removal
by Congress. Second, only the president or an
officer who serves at his pleasure can make
binding decisions on the president and the
executive branch.
The Court has said that some functions are so
central to the legislative branch that they
cannot be delegated. Here, the Constitution
explicitly and exclusively designates the
delegated power, the power of the purse, to
Congress.
The nature of the comptroller general’s work is
to predict the future state of the economy, not
merely to report on its current state. This task
is replete with political judgments that should
be left to the president and Congress.
Chief Justice Burger Delivered the Opinion of

the Court.
The question presented by these appeals is

whether the assignment by Congress to the
Comptroller General of the United States of
certain functions under the Balanced Budget and
Emergency Deficit Control Act of 1985 violates the
doctrine of separation of powers. . . .
The structure of the Constitution does not permit
Congress to execute the laws; it follows that
Congress cannot grant to an officer under its
control what it does not possess.
Our decision in INS v. Chadha (1983), supports

this conclusion. In Chadha, we struck down a one-
House “legislative veto” provision by which each
House of Congress retained the power to reverse
a decision Congress had expressly authorized the
Attorney General to make.
To permit an officer controlled by Congress to

execute the laws would be, in essence, to permit a
congressional veto. Congress could simply
remove, or threaten to remove, an officer for
executing the laws in any fashion found to be
unsatisfactory to Congress. This kind of
congressional control over the execution of the
laws, Chadha makes clear, is constitutionally
impermissible. . . .
Appellants urge that the Comptroller General

performs his duties independently and is not
subservient to Congress. . . . [T]his contention
does not bear close scrutiny.
The critical factor lies in the provisions of the

statute defining the Comptroller General’s office
relating to removability. Although the Comptroller
General is nominated by the President from a list
of three individuals recommended by the Speaker
of the House of Representatives and the President
pro tempore of the Senate, and confirmed by the
Senate, he is removable only at the initiative of
Congress.
It is [also] clear that Congress has consistently
viewed the Comptroller General as an officer of
the Legislative Branch. The Reorganization Acts of
1945 and 1949, for example, both stated that the
Comptroller General and the GAO are “a part of
the legislative branch of the Government.”
Similarly, in the Accounting and Auditing Act of
1950, Congress required the Comptroller General
to conduct audits “as an agent of the Congress.”
Against this background, we see no escape from

the conclusion that, because Congress has
retained removal authority over the Comptroller
General, he may not be entrusted with executive
powers. The remaining question is whether the
Comptroller General has been assigned such
powers in the Balanced Budget and Emergency
Deficit Control Act of 1985. . . .
Appellants suggest that the duties assigned to the

Comptroller General in the Act are essentially
ministerial and mechanical so that their
performance does not constitute “execution of the
law” in a meaningful sense. On the contrary, we
view these functions as plainly entailing execution
of the law in constitutional terms. Interpreting a
law enacted by Congress to implement the
legislative mandate is the very essence of
“execution” of the law. Under [the Act], the
Comptroller General must . . . interpret the
provisions of the Act to determine precisely what
budgetary calculations are required. Decisions of
that kind are typically made by officers charged
with executing a statute.
The executive nature of the Comptroller General’s
functions under the Act is revealed in [the
provision] which gives the Comptroller General
the ultimate authority to determine the budget
cuts to be made. Indeed, the Comptroller General
commands the President himself to carry out,
without the slightest variation (with exceptions
not relevant to the constitutional issues
presented), the directive of the Comptroller
General as to the budget reductions. . . .
Congress of course initially determined the

content of the Balanced Budget and Emergency
Deficit Control Act; and undoubtedly the content
of the Act determines the nature of the executive
duty. However, as [Immigration and Naturalization
Service v.] Chadha [1983] makes clear, once
Congress makes its choice in enacting legislation,
its participation ends. Congress can thereafter
control the execution of its enactment only
indirectly—by passing new legislation. By placing
the responsibility for execution of the Balanced
Budget and Emergency Deficit Control Act in the
hands of an officer who is subject to removal only
by itself, Congress in effect has retained control
over the execution of the Act and has intruded into
the executive function. The Constitution does not
permit such intrusion.
Affirmed.
JUSTICE WHITE, dissenting.

I have no quarrel with the proposition that the
powers exercised by the Comptroller under the
Act may be characterized as “executive” in that
they involve the interpretation and carrying out of
the Act’s mandate. I can also accept the general
proposition that . . . the constitutional scheme of
separated powers does prevent Congress from
reserving an executive role for itself or for its
“agents.” I cannot accept, however, that the
exercise of authority by an officer removable for
cause by a joint resolution of Congress is
analogous to the impermissible execution of the
law by Congress itself, nor would I hold that the
congressional role in the removal process renders
the Comptroller an “agent” of the Congress,
incapable of receiving “executive” power.
[T]he Court overlooks or deliberately ignores the

decisive difference between the congressional
removal provision and the legislative veto struck
down in Chadha: under the Budget and
Accounting Act, Congress may remove the
Comptroller only through a joint resolution, which,
by definition, must be passed by both Houses and
signed by the President. In other words, a removal
of the Comptroller under the statute satisfies the
requirements of bicameralism and presentment
laid down in Chadha.
Realistic consideration of the nature of the

Comptroller General’s relation to Congress thus
reveals that the threat to separation of powers
conjured up by the majority is wholly chimerical.
The power over removal retained by the Congress
is not a power that is exercised outside the
legislative process as established by the
Constitution. . . . Indeed, the removal power is so
constrained by its own substantive limits and by
the requirement of Presidential approval, that, as
a practical matter, Congress has not exercised,
and probably will never exercise, such control
over the Comptroller General that his
nonlegislative powers will threaten the goal of
dispersion of power, and hence the goal of
individual liberty, that separation of powers
serves.
Bowsher supplied a clear declaration of the

boundaries between legislative and executive
authority, but the decision had little impact on the
legislation. Congress, anticipating a lawsuit, had
written into the law certain “fallback” mechanisms
to enforce the budget restrictions if any part of the
original plan failed a constitutional challenge. This
plan removed the comptroller general from any
enforcement activity, which eliminated the
constitutional violation.
Two years later the Court again considered a dispute

in which Congress was accused of interfering with
executive power. In the wake of the Watergate
scandal, Congress set up a process for selecting an
independent counsel to investigate and prosecute
high-ranking government officials for federal crimes.
This move resulted in Morrison v. Olson (1988),
which you read in Chapter 4.
Morrison, as we stressed, is known for detailing the

characteristics of “inferior” versus “principal”
officers, but the opinion also addressed the proper
separation of the legislative and executive branches.
Similar to the situation in Bowsher, Congress had
restricted removal of the independent counsel to the
attorney general, who may fire the independent
counsel only for “good cause.” Theodore Olson
argued that this amounted to interference with the
president’s power to control subordinates and that
Congress was unconstitutionally grabbing executive
power.
The Court ultimately rejected Olson’s arguments. In

so doing, it attempted to distinguish Morrison from
Bowsher:
Unlike Bowsher . . . this case does not involve an

attempt by Congress itself to gain a role in the
removal of executive officials other than its
established powers of impeachment and
conviction. The Act instead puts the removal
power squarely in the hands of the Executive
Branch; an independent counsel may be removed
from office, “only by the personal action of the
Attorney General, and only for good cause.”
There is no requirement of congressional
approval of the Attorney General’s removal
decision, though the decision is subject to
judicial review.
The Court also dealt with Olson’s argument that the

independent counsel act violated the separation of
powers because it interfered with the role of the
executive branch:
Time and again we have reaffirmed the

importance in our constitutional scheme of the
separation of governmental powers into the
three coordinate branches. . . . [T]he system of
separated powers and checks and balances
established in the Constitution was regarded by
the Framers as “a self-executing safeguard
against the encroachment or aggrandizement of
one branch at the expense of the other.” We have
not hesitated to invalidate provisions of law
which violate this principle. On the other hand,
we have never held that the Constitution
requires that the three Branches of Government
“operate with absolute independence.” . . .
We observe . . . that this case does not involve an

attempt by Congress to increase its own powers
at the expense of the Executive Branch. Unlike .
. . Bowsher v. Synar, this case simply does not
pose a “dange[r] of congressional usurpation of
Executive Branch functions.” Indeed, with the
exception of the power of impeachment—which
applies to all officers of the United States—
Congress retained for itself no powers of control
or supervision over an independent counsel. The
Act does empower certain members of Congress
to request the Attorney General to apply for the
appointment of an independent counsel, but the
Attorney General has no duty to comply with the
request, although he must respond within a
certain time limit. Other than that, Congress’
role under the Act is limited to receiving reports
or other information and oversight of the
independent counsel’s activities, functions that
we have recognized generally as being incidental
to the legislative functions of Congress.
Are you convinced by the Court’s arguments in

Morrison? Does the majority make a good case for
distinguishing Bowsher? Do the Morrison justices
bring a more functional approach to bear than the
Bowsher justices? Or are both equally apt?
Powers over Foreign Affairs

The cases we have considered so far mostly involve
questions pertaining to the interaction of the
branches of the federal government in domestic
disputes. But equally important and interesting
questions arise over constitutional authority in the
external context. The Court began to grapple with
some of these questions very early in the nation’s
history, and they continue to arise to this day.
Although the questions come in different forms,

many center on the relationship between Congress
and the president—and the powers they are trying to
exercise. Often, as we noted in the introduction to
this chapter, the two elected branches will agree on
a course of action but that does not necessarily
eliminate constitutional questions. When national
survival is at stake or the country’s relations with
other nations are in jeopardy and emotions are
running high, the elected branches may take action
that skirts constitutional boundaries.9 In these
instances, the Court may be asked by affected
individuals to determine what, if any, limits exist on
the government’s power.
9 Clinton L. Rossiter, Constitutional Dictatorship:

Crisis Government in the Modern Democracies
(Princeton, NJ: Princeton University Press, 1948).
Sometimes, though, Congress and the president

disagree over the conduct of international relations,
war, or other national emergencies. This is not
especially surprising since the Constitution provides
each elected branch with significant and potentially
overlapping powers. That arrangement has
presented Congress and the president with an
“invitation to struggle.”
The next section considers the Constitution’s

division of the power to wage war. But disputes
between the president and Congress do not begin
and end with the war power; they also have done
battle over matters of foreign policy. As you read the
cases to come, consider the justices’ responses:
Have they tended to side with one branch over
another? What bearing have they had on presidential
efforts to combat terrorism and other threats to the
nation’s security? How far can the president go
without obtaining approval from the legislature? And
what steps can the president take to circumvent the
courts altogether?
Constitutional War Powers

The constitutional authority to send troops into
combat has always sparked controversy. As we just
suggested, the root of the problem is that the
legislative and executive branches both have powers
that can be interpreted as controlling the
commitment of military forces to combat. The case
for presidential control is based on the following
passage in Article II, Section 2: “The President shall
be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several
States, when called into the actual Service of the
United States.” Proponents of congressional
dominance over the making of war rest their case on
these words, all in Article I, Section 8, giving
Congress the power:
To declare War, grant Letters of Marque and

Reprisal, and make Rules concerning Captures on
Land and Water;
To raise and support Armies, but no Appropriation
of Money to that Use shall be for a longer Term
than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation
of the land and naval Forces;
To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and
repel Invasions.
The distribution of war-making powers as

determined by the framers envisioned a situation in
which Congress would raise and support military
forces when necessary and provide the general rules
governing those forces. By granting Congress the
power to declare war, the Constitution anticipates
that the legislature should determine when military
force is to be used. Once the military is raised and
war is declared, executive power becomes dominant,
consistent with the philosophy that waging war
successfully requires that a single official be in
charge.
This allocation of powers was more realistic at the

end of the eighteenth century than it is today. At the
time the framers considered these issues, the United
States was a remote nation far removed from the
frequent wars in Europe. It took weeks for vessels to
cross the Atlantic, allowing plenty of time for
Congress to debate the question of initiating
hostilities. Most delegates at the Constitutional
Convention did not even anticipate the
establishment of a standing military.
Today, with the rapid deployment of troops,

airpower, and intercontinental missiles, hostile
conditions demand quick and decisive actions. The
nation expects the president to act immediately to
repel an attack and to worry about congressional
approval later.
In fact, Congress has taken the positive action of

declaring a state of war only five times in the
nation’s history:10
10 Congress also declared a state of war during the

Civil War, but this conflict is technically classified as
an internal rebellion rather than a true war between
independent nations.
The War of 1812 against Great Britain

The Mexican War in 1846
The Spanish-American War in 1898
World War I in 1917
World War II in 1941
But it has initiated hundreds of military actions

without declarations of war. President John Adams
took the first such action when he authorized
military strikes against French privateers. Some of
these undeclared military actions begin and end so
quickly that the president’s move allows little time
for congressional approval; an example is President
Trump’s authorization of airstrikes on targets in
Syria in 2018. But two major long-term military
efforts, the Korean War and the Vietnam War, were
conducted without any formal declaration of war.
When military actions have extended over greater
periods, Congress often has given approval through
means other than a formal declaration of war. This
approval may come in the form of a resolution
authorizing the president to conduct military action,
such as the 1964 Tonkin Gulf Resolution that
granted President Lyndon Johnson authority to use
force to repel attacks on U.S. forces and to forestall
future aggression. Similarly, on January 12, 1991,
Congress passed a joint resolution authorizing
President George H. W. Bush to use force against
Iraq, giving its approval to the Persian Gulf conflict
in words just short of a formal declaration of war.
Just days after the terrorist attacks on New York City
and Washington, D.C., on September 11, 2001, the
legislature passed a joint resolution authorizing
President George W. Bush to use “United States
Armed Forces against those responsible for the
recent attacks launched against the United States.”
A little more than a year later, in October 2002, it
voted in favor of a similar resolution, the
Authorization for Use of Military Force (AUMF),
enabling Bush to use military force against Iraq,
although some commentators suggest that the
resolution did not authorize the war that later
ensued. Finally, Congress can give indirect approval
to the president in the form of continuing
congressional appropriations to support military
action. In the wake of September 11, Congress
approved a bill authorizing $40 billion for various
military operations and disaster relief.
But Congress has not abdicated its constitutional
authority to approve war; in fact, the legislature has
insisted that the president consult it on all military
actions. In 1973 Congress passed the War Powers
Resolution over Nixon’s veto. This legislation
acknowledges the right of the president to undertake
limited military action without first obtaining formal
approval from Congress but requires the president
to file a formal report with Congress within forty-
eight hours of initiating hostilities. Military action
under this act is limited to sixty days with a possible
thirty-day extension. If the president wishes to
pursue military activity beyond these limits, prior
congressional consent is required. Although the
legislation was designed to impose restrictions on
the president, most experts believe the law actually
expands the chief executive’s right to employ
military force. The AUMF may provide an example.
It contains language requiring the president to
submit to Congress “a report on matters relevant to
this joint resolution” at least “once every 60 days.”
But it also states, “The President is authorized to use
the Armed Forces of the United States as he
determines to be necessary and appropriate in order
to—(1) defend the national security of the United
States against the continuing threat posed by Iraq;
and (2) enforce all relevant United Nations Security
Council resolutions regarding Iraq.”
What role does the judiciary play in times of war?

Because it must wait for an appropriate case to be
filed before it can act, and because of its slow,
deliberative procedures, the judicial branch is less
capable than the other two branches of taking a
leading role in matters of war and national
emergency. Furthermore, the Constitution gives the
courts no specified authority in these areas. The
judiciary is, however, sometimes called on to decide
if government power is being used legitimately or if
constitutional limits have been exceeded. In times of
war and national emergency, the government may
find it necessary to take actions that would be
unlawful at other times, as suggested earlier. The
limits of the Constitution may be stretched to
respond to the crisis. When legal disputes arise from
such situations, the courts may become active
participants in determining the government’s
legitimate authority. But it is also true, as we saw in
Chapter 2, that political actors have sometimes
attempted to reduce or even eliminate the federal
judiciary’s participation in suits related to the crisis
at hand.
In what follows, we consider the Court’s responses

to litigation arising in response to actions taken by
the government during the Civil War, World War II,
and the Korean conflict, as well as foreign policy
decisions related to the Middle East. In the last
section, we look at the steps President George W.
Bush and his administration took to combat
terrorism—some of which the Obama administration
also followed—and the Court’s reactions. As you
read the contemporary material, try to assess the
justices’ positions on President Bush’s claims about
the importance of strong executive authority in times
of crisis. Did the justices’ decisions support the
administration? Or does the answer to that question
depend on the particular actions at issue in the
litigation, whether the president had support from
Congress, or other factors?
Civil War
Fundamental questions about constitutional
allocation of the war powers came to the Court early
in the nation’s history, in an 1863 dispute known as
the Prize Cases. Among the questions the justices
addressed were these: Who has power to initiate
war? What war powers may the president pursue
without a formal declaration from Congress?
Prize Cases 67 U.S. (22 Bl.) 635 (1863)
court/67/635.html
Vote: 5 (Davis, Grier, Miller, Swayne, Wayne)
4 (Catron, Clifford, Nelson, Taney)
OPINION OF THE COURT: Grier

DISSENTING OPINION: Nelson
Facts:
Abraham Lincoln was elected president in
November 1860. Before his inauguration on
March 4, 1861, seven Southern states seceded
from the Union, and Lincoln knew that he had to
act quickly and decisively to preserve the nation.
Beginning in mid-April, shortly after the first shots
were fired at Fort Sumter, Lincoln imposed a naval
blockade of Southern ports. He took this action
unilaterally, without seeking the prior approval of
Congress, which did not enact a formal
declaration of hostilities until July 13 and did not
ratify Lincoln’s blockade until August 6.
Prior to July 13, Union war vessels seized four

ships trading with the Confederacy. The owners of
the captured ships brought suit to recover their
property, claiming that Lincoln had no authority to
institute a blockade in the absence of a
congressional declaration of war and that the
seizures were illegal. Among other matters, the
justices confronted this important constitutional
issue: Did the president have the right to institute
a blockade of ports under the control of persons in
armed rebellion against the government before
Congress had acted? Lincoln believed he did, on
the grounds that a state of insurrection existed as
a result of the shots at Fort Sumter and that he
had the responsibility, under various constitutional
provisions and existing laws, to protect the
country.
Arguments:
For the claimants, ship owners:
For ships to be captured via blockades as
prizes of war, there must be a war. Article I,
Section 8, of the Constitution explicitly gives
Congress the power to declare war. Because
Congress never declared war, there was no
official war or blockade.
The president’s powers are limited to those
granted to him in the Constitution. He is
empowered to use the nation’s army and navy
against insurrections or invasions, as Congress
has provided, but exercising those powers
alone does not amount to war.
The Constitution plainly distinguishes between
“war” and “insurrection,” treating foreign
disturbances distinctly from domestic
disturbances. Because the blockade was in
reaction to hostility from states in the Union,
the disturbance was an insurrection, not a war.
For the libellants, United States:

War is the exercise of force by political bodies
against each other for the purpose of coercion.
War is a state of things, not just a legislative
act, and can exist without official declaration
by either side.
Historically, a civil war exists whenever the
regular course of justice is interrupted by revolt
or rebellion, so that the courts cannot be kept
open.
Practical necessity demands that the president
be allowed some leeway to use his war powers
without waiting for Congress to act first. The
president must be able to protect the country
from sudden attacks at times when Congress
might not be assembled or be able to respond
in time.
Mr. Justice Grier Delivered the Opinion of the

Court.
Had the President a right to institute a blockade of

ports in possession of persons in armed rebellion
against the Government, on the principles of
international law, as known and acknowledged
among civilized States? . . .
By the Constitution, Congress alone has the power

to declare a national or foreign war. It cannot
declare war against a State, or any number of
States, by virtue of any clause in the Constitution.
The Constitution confers on the President the
whole Executive power. He is bound to take care
that the laws be faithfully executed. He is
Commander-in-chief of the Army and Navy of the
United States, and of the militia of the several
States when called into the actual service of the
United States. He has no power to initiate or
declare a war either against a foreign nation or a
domestic State. But by the Acts of Congress of
February 28th, 1795, and 3d of March, 1807, he is
authorized to call out the militia and use the
military and naval forces of the United States in
case of invasion by foreign nations, and to
suppress insurrection against the government of a
State or of the United States.
The Prize Cases examined the constitutionality of
Lincoln’s orders to blockade Southern ports in
order to disrupt trade between the Confederacy
and foreign nations. As this map illustrates, the
federal operation was divided into four regional
blockading units: the North Atlantic Blockading
Squadron based at Hampton Roads, Virginia; the
South Atlantic Squadron at Port Royal, South
Carolina; the Eastern Gulf Squadron at Key West,
Florida; and the Western Gulf Squadron at
Pensacola, Florida, and Ship Island, Mississippi.
If a war be made by invasion of a foreign nation,

the President is not only authorized but bound to
resist force by force. He does not initiate the war,
but is bound to accept the challenge without
waiting for any special legislative authority. And
whether the hostile party be a foreign invader, or
States organized in rebellion, it is none the less a
war, although the declaration of it be “unilateral.”
...
This greatest of civil wars was not gradually
developed by popular commotion, tumultuous
assemblies, or local unorganized insurrections.
However long may have been its previous
conception, it nevertheless sprung forth suddenly
from the parent brain, a Minerva in the full
panoply of war. The President was bound to meet
it in the shape it presented itself, without waiting
for Congress to baptize it with a name; and no
name given to it by him or them could change the
fact.
It is not the less a civil war, with belligerent

parties in hostile array, because it may be called
an “insurrection” by one side, and the insurgents
be considered as rebels or traitors. It is not
necessary that the independence of the revolted
province or State be acknowledged in order to
constitute it a party belligerent in a war according
to the law of nations. Foreign nations acknowledge
it as war by a declaration of neutrality. The
condition of neutrality cannot exist unless there be
two belligerent parties. . . .
The law of nations is also called the law of nature;

it is founded on the common consent as well as
the common sense of the world. It contains no
such anomalous doctrine as that which this Court
are now for the first time desired to pronounce, to
wit, that insurgents who have risen in rebellion
against their sovereign, expelled her Courts,
established a revolutionary government, organized
armies, and commenced hostilities, are not
enemies because they are traitors; and a war
levied on the Government by traitors, in order to
dismember and destroy it, is not a war because it
is an “insurrection.”
Whether the President in fulfilling his duties, as

Commander-in-chief, in suppressing an
insurrection, has met with such armed hostile
resistance, and a civil war of such alarming
proportions as will compel him to accord to them
the character of belligerents, is a question to be
decided by him, and this Court must be governed
by the decisions and acts of the political
department of the Government to which this
power was entrusted. “He must determine what
degree of force the crisis demands.” The
proclamation of blockade is itself official and
conclusive evidence to the Court that a state of
war existed which demanded and authorized a
recourse to such a measure, under the
circumstances peculiar to the case. . . .
. . . [T]herefore we are of the opinion that the

President had a right, jure belli [by the right or
law of war], to institute a blockade of ports in
possession of the States in rebellion, which
neutrals are bound to regard.
MR. JUSTICE NELSON,

dissenting. [MR. CHIEF
JUSTICE TANEY, MR. JUSTICE
CATRON, and MR. JUSTICE
CLIFFORD concurred in the
dissenting opinion of MR.
JUSTICE NELSON.]
Th[e] great and pervading change in the existing
condition of a country, and in the relations of all
her citizens or subjects, external and internal,
from a state of peace, is the immediate effect and
result of a state of war, and hence the same code
which has annexed to the existence of a war all
these disturbing consequences has declared that
the right of making war belongs exclusively to the
supreme or sovereign power of the State.
This power in all civilized nations is regulated by

the fundamental laws or municipal constitution of
the country.
By our constitution, this power is lodged in

Congress. Congress shall have power “to declare
war, grant letters of marque and reprisal, and
make rules concerning captures on land and
water.” . . .
It is not to be denied . . . that if a civil war existed

between that portion of the people in organized
insurrection to overthrow this Government at the
time this vessel and cargo were seized, and if she
was guilty of a violation of the blockade, she
would be lawful prize of war. But before this
insurrection against the established Government
can be dealt with on the footing of a civil war,
within the meaning of the law of nations and the
Constitution of the United States, and which will
draw after it belligerent rights, it must be
recognized or declared by the war-making power
of the Government. No power short of this can
change the legal status of the Government or the
relations of its citizens from that of peace to a
state of war, or bring into existence all those
duties and obligations of neutral third parties
growing out of a state of war. The war power of
the Government must be exercised before this
changed condition of the Government and people
and of neutral third parties can be admitted.
There is no difference in this respect between a
civil or a public war. . . .
Now, in one sense, no doubt this is war, and may

be a war of the most extensive and threatening
dimensions and effects, but it is a statement
simply of its existence in a material sense, and has
no relevancy or weight when the question is what
constitutes war in a legal sense, in the sense of
the law of nations, and of the Constitution of the
United States? For it must be a war in this sense
to attach to it all the consequences that belong to
belligerent rights. Instead, therefore, of inquiring
after armies and navies, and victories lost and
won, or organized rebellion against the general
Government, the inquiry should be into the law of
nations and into the municipal fundamental laws
of the Government. For we find there that to
constitute a civil war in the sense in which we are
speaking, before it can exist in contemplation of
law, it must be recognized or declared by the
sovereign power of the State, and which sovereign
power by our Constitution is lodged in the
Congress of the United States—civil war,
therefore, under our system of government, can
exist only by an act of Congress, which requires
the assent of two of the great departments of the
Government, the Executive and Legislative.
We have thus far been speaking of the war power

under the Constitution of the United States, and
as known and recognized by the law of nations.
But we are asked, what would become of the
peace and integrity of the Union in case of an
insurrection at home or invasion from abroad if
this power could not be exercised by the President
in the recess of Congress, and until that body
could be assembled?
The framers of the Constitution fully

comprehended this question, and provided for the
contingency. . . . The Constitution declares that
Congress shall have power “to provide for calling
forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions.”
Another clause, “that the President shall be
Commander-in-chief of the Army and Navy of the
United States, and of the militia of the several
States when called into the actual service of
United States;” and, again, “He shall take care
that the laws shall be faithfully executed.”
Congress passed laws on this subject in 1792 and
1795.
[These and other acts] did not, and could not

under the Constitution, confer on the President
the power of declaring war against a State of this
Union, or of deciding that war existed, and upon
that ground authorize the capture and
confiscation of the property of every citizen of the
State whenever it was found on the waters. The
laws of war, whether the war be civil or inter
gentes . . . convert every citizen of the hostile
State into a public enemy, and treat him
accordingly, whatever may have been his previous
conduct. This great power over the business and
property of the citizen is reserved to the
legislative department by the express words of the
Constitution. It cannot be delegated or
surrendered to the Executive. Congress alone can
determine whether war exists or should be
declared, and until they have acted, no citizen of
the State can be punished in his person or
property unless he has committed some offence
against a law of Congress passed before the act
was committed which made it a crime and defined
the punishment. The penalty of confiscation for
the acts of others with which he had no concern
cannot lawfully be inflicted.
Upon the whole, after the most careful

consideration of this case which the pressure of
other duties has admitted, I am compelled to the
conclusion that no civil war existed between this
Government and the States in insurrection till
recognized by the Act of Congress 13th of July,
1861; that the President does not possess the
power under the Constitution to declare war or
recognize its existence within the meaning of the
law of nations, which carries with it belligerent
rights, and thus change the country and all its
citizens from a state of peace to a state of war;
that this power belongs exclusively to the
Congress of the United States, and, consequently,
that the President had no power to set on foot a
blockade under the law of nations, and that the
capture of the vessel and cargo in this case, and in
all cases before us in which the capture occurred
before the 13th of July, 1861, for breach of
blockade, or as enemies’ property, are illegal and
void, and that the decrees of condemnation should
be reversed and the vessel and cargo restored.
Lincoln’s actions were supported by the slightest of
majorities. Three of the justices who voted to
endorse the validity of the blockade were his own
appointees, Samuel Miller, Noah Swayne, and David
Davis. They were joined by two Democrats, Robert
Grier of Pennsylvania and James Wayne, a Georgian
who remained loyal to the Union. The decision is
significant for authorizing the president to take
military action without waiting for congressional
approval. It further established that a state of war
comes into existence when certain conditions are
present, not when the legislature declares that it
exists. The decision, however, did not fully settle the
issue. The arguments raised in the majority and
dissenting opinions in this case seem to reappear
whenever a controversy over the power to conduct
war arises.
The blockade was only the first of Lincoln’s acts that

were questioned on constitutional grounds. In Ex
parte Milligan the justices addressed another, this
one concerning the president’s actions suppressing
civil liberties.11 The ruling came after Lincoln’s
death and the war’s conclusion. Do you think the
Court’s decision would have been different had the
case been heard when hostilities were at their peak
and Confederate troops were scoring successes on
the battlefield?
11 For a description of the events leading up to the

Court’s decision, see Allan Nevins, “The Case of the
Copperhead Conspirator,” in Quarrels That Have
Shaped the Constitution, rev. ed., ed. John A. Garraty
(New York: Harper & Row, 1987).
Ex parte Milligan 71 U.S. (24 Wall.) 2 (1866)
court/71/2.html

Nelson, Swayne, Wayne)
OPINION OF THE COURT: Davis

CONCURRING OPINION: Chase
Facts:
The Civil War was unlike other wars Americans
had faced: the enemies were fellow Americans,
not foreigners. The conflict touched almost every
part of the nation, and Lincoln particularly
worried about the presence of Confederate
supporters in the Northern and border states.
These individuals were capable of aiding the
Southern forces without joining the Confederate
Army. Of special concern were the large numbers
of Southern sympathizers, known as Copperheads,
who were active in Illinois, Indiana, Missouri, and
Ohio. Combating these civilian enemies posed a
difficult problem for the president. Lincoln
decided that the Union was more important than
the procedural rights of individuals. Consequently,
he gave his military commanders broad powers to
arrest civilians suspected of engaging in traitorous
activities. These suspects were to be tried in
military courts.
In those parts of the country where hostilities

were not occurring, however, the army had no
legal authority to arrest and try civilians. State
and federal courts were in full operation and were
capable of trying civilians charged with treason or
any other crime. Before civilians could be tried by
military courts, a state of martial law had to be
declared, and for that to happen the right of
habeas corpus had to be suspended. Habeas
corpus is a legal procedure with roots extending
far back into English legal history; it permits an
arrested person to have a judge determine
whether the detention is legal. If the court
determines that there are no legal grounds for the
arrest, it may order the release of the detained
individual. Habeas corpus is essential to the
doctrine of checks and balances because it gives
the judiciary the right to intervene if the executive
branch abuses the law enforcement power.
Article I, Section 9, of the Constitution provides

for the suspension of habeas corpus in the
following words: “The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public
Safety may require it.” This provision posed two
problems for Lincoln. First, the suspension
provision is in Article I, which outlines legislative,
not executive, powers. And second, if the civilian
courts are in full operation and no armed
hostilities are taking place in the area, the public
safety probably does not demand a suspension of
habeas corpus.
These obstacles did not stop the president.
Several times during the war he issued orders
expanding military control over civilian areas,
permitting military arrests and trials of civilians,
and suspending habeas corpus. Congress later
endorsed some of these actions. Arrests of
suspected traitors and conspirators were common
and often based on little evidence. Were such
actions constitutional under the war powers
doctrine? The Court addressed this question in Ex
parte Milligan (1866), a decision of great
importance in defining the wartime powers of the
chief executive.
Lambdin P. Milligan was an attorney residing in

northeastern Indiana. As a member of the
Democratic Party, with strong states’ rights
beliefs, he was sympathetic toward the
Confederate cause. He openly organized groups
and gave speeches in support of the South. He
also was involved in efforts to persuade men not to
join the Union Army. At one point Milligan and his
fellow Copperheads were suspected of hatching a
plan to raid prisoner-of-war camps in Illinois,
Indiana, and Ohio and to release the imprisoned
Confederate soldiers, who would then take control
of the three states. Federal military investigators
followed Milligan closely and kept records of his
activities and contacts.
The Union Army military commission that tried

Lambdin P. Milligan and his fellow conspirators in
October 1864.
Courtesy of The Indiana State Library
On October 5, 1864, under orders from General

Alvin Hovey, commander of the Union Army in
Indiana, federal agents arrested Milligan at his
home. They also arrested four of Milligan’s fellow
Confederate sympathizers. Sixteen days later
Hovey placed Milligan on trial before a military
tribunal in Indianapolis. He was found guilty and
sentenced to be hanged on May 19, 1865. On May
2, less than a month after the war ended with
General Robert E. Lee’s surrender at Appomattox,
President Andrew Johnson, who had succeeded
Lincoln, sustained the order that Milligan be
executed. In response, Milligan’s attorneys filed
for a writ of habeas corpus in federal circuit court,
claiming that Milligan should not have been tried
by a military tribunal and that the president
should not have suspended the writ of habeas
corpus. Uncertain of how to apply the law, the
circuit judges requested that the Supreme Court
resolve certain questions regarding the legal
authority of a military commission to try and
sentence Milligan.
Nine months later, in March 1866, the Court heard

the Milligan case. Oral arguments took place at a
time of heightened political tension. Relations
were strained between Johnson, who supported a
moderate position toward the reintroduction of
the Southern states into the Union, and the
Radical Republicans in Congress, who demanded
a stricter Reconstruction policy. A majority of the
justices opposed the military trials at issue in
Milligan, but there was concern about possible
congressional retaliation if the justices struck a
blow against military authority. The Court at this
point was quite vulnerable, having suffered a
decline in prestige because of the infamous
decision in Scott v. Sandford (1857) (excerpted in
Chapter 6). But the justices had a potential ally in
Johnson. The president opposed the use of military
tribunals, and the Radicals had not yet gained
sufficient strength to override a veto of a
congressional act. The Court announced its
decision in Milligan on April 3, 1866, but did not
issue formal opinions until eight months later.
Arguments:
For the petitioner, Lambdin P. Milligan:
The power to suspend the writ of habeas

corpus belongs to Congress, not the president.
Article I grants the power to Congress only;
there is no analogous language in Article II. The
debates of the framers support this claim, as
do the laws of England upon which our
Constitution is based.
The Constitution was written with distrust of
the executive; the framers divided war powers
to keep the executive in check. It is illogical to
assume that the framers intended to give the
president absolute control over regions under
martial law when they denied him the basic
power to raise and support an army and navy.
Historically, legislation regarding military
commissions has specified that they have
jurisdiction only over military personnel and
spies in times of war or rebellion. Milligan was
a civilian in a peaceful state where the courts
were open, their processes uninterrupted, and
the civil laws had full power.
The plain text of the Fifth Amendment shows
that military commissions apply only to
persons “in the land or naval services, or in the
militia when in actual service, in time of war or
public danger.” The last phrase shows that the
amendment applies in times of war as well as
peace.
Five Southern sympathizers were charged with

treason by military authorities. The question of the
constitutionality of their arrests and trials before a
military commission was settled by the Supreme
Court in Ex parte Milligan (1866). Clockwise from
top: William A. Bowles, Andrew Humphreys,
Stephen Horsey, H. Heffren, and Lambdin P.
Milligan.
Indiana Historical Society, P0411

States:
The president derives authority to suspend the
writ of habeas corpus from his constitutional
power as commander in chief.
The Constitution limits the presidential war
power by granting Congress the powers to
declare war and raise armies. Once war begins,
however, the presidential war power must be
unlimited to allow the president to meet new
challenges that the slow movement of
legislative action cannot meet.
Jurisdiction of the military tribunal does not
depend on residency in the rebel states; the
commander in chief has power to establish
military districts where needed and to arrest
and punish anyone who aids the enemy.
The Second, Fourth, Fifth, and Sixth
Amendments should be construed as
peacetime provisions that fall silent in times of
war. The framers neither put nor intended
limits on the president’s power to conduct war.
Mr. Justice Davis Delivered the Opinion of the

Court.
The controlling question in the case is this: Upon

the facts stated in Milligan’s petition, and the
exhibits filed, had the military commission
mentioned in it jurisdiction, legally, to try and
sentence him? . . .
No graver question was ever considered by this

court, nor one which more nearly concerns the
rights of the whole people, for it is the birthright
of every American citizen when charged with
crime to be tried and punished according to law. . .
.
When peace prevails, and the authority of the

government is undisputed, there is no difficulty of
preserving the safeguards of liberty, for the
ordinary modes of trial are never neglected, and
no one wishes it otherwise; but if society is
disturbed by civil commotion—if the passions of
men are aroused and the restraints of law
weakened, if not disregarded—these safeguards
need, and should receive, the watchful care of
those intrusted with the guardianship of the
Constitution and laws. In no other way can we
transmit to posterity unimpaired the blessings of
liberty, consecrated by the sacrifices of the
Revolution. . . .
[But] it is claimed that martial law covers with its

broad mantle the proceedings of this military
commission. The proposition is this: that, in a time
of war, the commander of an armed force (if, in his
opinion, the exigencies of the country demand it,
and of which he is to judge) has the power, within
the lines of his military district, to suspend all civil
rights and their remedies and subject citizens, as
well as soldiers to the rule of his will, and, in the
exercise of his lawful authority, cannot be
restrained except by his superior officer or the
President of the United States.
If this position is sound to the extent claimed,

then, when war exists, foreign or domestic, and
the country is subdivided into military
departments for mere convenience, the
commander of one of them can, if he chooses,
within his limits, on the plea of necessity, with the
approval of the Executive, substitute military force
for and to the exclusion of the laws, and punish all
persons as he thinks right and proper, without
fixed or certain rules.
The statement of this proposition shows its

importance, for, if true, republican government is
a failure, and there is an end of liberty regulated
by law. Martial law established on such a basis
destroys every guarantee of the Constitution, and
effectually renders the “military independent of
and superior to the civil power”—the attempt to
do which by the King of Great Britain was deemed
by our fathers such an offence that they assigned
it . . . as one of the causes which impelled them to
declare their independence. Civil liberty and this
kind of martial law cannot endure together; the
antagonism is irreconcilable, and, in the conflict,
one or the other must perish.
This nation, as experience has proved, cannot

always remain at peace, and has no right to expect
that it will always have wise and humane rulers
sincerely attached to the principles of the
Constitution. Wicked men, ambitious of power,
with hatred of liberty and contempt of law, may fill
the place once occupied by Washington and
Lincoln, and if this right is conceded, and the
calamities of war again befall us, the dangers to
human liberty are frightful to contemplate. If our
fathers had failed to provide for just such a
contingency, they would have been false to the
trust reposed in them. They knew—the history of
the world told them—the nation they were
founding, be its existence short or long, would be
involved in war; how often or how long continued
human foresight could not tell, and that unlimited
power, wherever lodged at such a time, was
especially hazardous to freemen. For this and
other equally weighty reasons, they secured the
inheritance they had fought to maintain by
incorporating in a written constitution the
safeguards which time had proved were essential
to its preservation. Not one of these safeguards
can the President or Congress or the Judiciary
disturb, except the one concerning the writ of
habeas corpus.
It is essential to the safety of every government

that, in a great crisis like the one we have just
passed through, there should be a power
somewhere of suspending the writ of habeas
corpus. In every war, there are men of previously
good character wicked enough to counsel their
fellow-citizens to resist the measures deemed
necessary by a good government to sustain its just
authority and overthrow its enemies, and their
influence may lead to dangerous combinations. In
the emergency of the times, an immediate public
investigation according to law may not be
possible, and yet the period to the country may be
too imminent to suffer such persons to go at large.
Unquestionably, there is then an exigency which
demands that the government, if it should see fit
in the exercise of a proper discretion to make
arrests, should not be required to produce the
persons arrested in answer to a writ of habeas
corpus. The Constitution goes no further. It does
not say, after a writ of habeas corpus is denied a
citizen, that he shall be tried otherwise than by
the course of the common law; if it had intended
this result, it was easy, by the use of direct words,
to have accomplished it. The illustrious men who
framed that instrument were guarding the
foundations of civil liberty against the abuses of
unlimited power; they were full of wisdom, and
the lessons of history informed them that a trial by
an established court, assisted by an impartial jury,
was the only sure way of protecting the citizen
against oppression and wrong. Knowing this, they
limited the suspension to one great right, and left
the rest to remain forever inviolable. But it is
insisted that the safety of the country in time of
war demands that this broad claim for martial law
shall be sustained. If this were true, it could be
well said that a country, preserved at the sacrifice
of all the cardinal principles of liberty, is not worth
the cost of preservation. Happily, it is not so.
It will be borne in mind that this is not a question

of the power to proclaim martial law when war
exists in a community and the courts and civil
authorities are overthrown. Nor is it a question
what rule a military commander, at the head of his
army, can impose on states in rebellion to cripple
their resources and quell the insurrection. The
jurisdiction claimed is much more extensive. The
necessities of the service during the late Rebellion
required that the loyal states should be placed
within the limits of certain military districts and
commanders appointed in them, and it is urged
that this, in a military sense, constituted them the
theater of military operations, and as, in this case,
Indiana had been and was again threatened with
invasion by the enemy, the occasion was furnished
to establish martial law. The conclusion does not
follow from the premises. If armies were collected
in Indiana, they were to be employed in another
locality, where the laws were obstructed and the
national authority disputed. On her soil there was
no hostile foot; if once invaded, that invasion was
at an end, and, with it, all pretext for martial law.
Martial law cannot arise from a threatened
invasion. The necessity must be actual and
present, the invasion real, such as effectually
closes the courts and deposes the civil
administration.
It is difficult to see how the safety for the country
required martial law in Indiana. If any of her
citizens were plotting treason, the power of arrest
could secure them until the government was
prepared for their trial, when the courts were
open and ready to try them. It was as easy to
protect witnesses before a civil as a military
tribunal, and as there could be no wish to convict
except on sufficient legal evidence, surely an
ordained and establish[ed] court was better able
to judge of this than a military tribunal composed
of gentlemen not trained to the profession of the
law.
It follows from what has been said on this subject

that there are occasions when martial rule can be
properly applied. If, in foreign invasion or civil
war, the courts are actually closed, and it is
impossible to administer criminal justice
according to law, then, on the theatre of active
military operations, where war really prevails,
there is a necessity to furnish a substitute for the
civil authority, thus overthrown, to preserve the
safety of the army and society, and as no power is
left but the military, it is allowed to govern by
martial rule until the laws can have their free
course. As necessity creates the rule, so it limits
its duration, for, if this government is continued
after the courts are reinstated, it is a gross
usurpation of power.
Martial rule can never exist where the courts are

open and in the proper and unobstructed exercise
of their jurisdiction. It is also confined to the
locality of actual war. Because, during the late
Rebellion, it could have been enforced in Virginia,
where the national authority was overturned and
the courts driven out, it does not follow that it
should obtain in Indiana, where that authority was
never disputed and justice was always
administered. And so, in the case of a foreign
invasion, martial rule may become a necessity in
one state when, in another, it would be “mere
lawless violence.”
THE CHIEF JUSTICE delivered

the following opinion:
[T]he opinion . . . as we understand it, asserts not
only that the military commission held in Indiana
was not authorized by Congress, but that it was
not in the power of Congress to authorize it, from
which it may be thought to follow that Congress
has no power to indemnify the officers who
composed the commission against liability in civil
courts for acting as members of it.
We cannot agree to this. . . .
We think that Congress had power, though not

exercised, to authorize the military commission
which was held in Indiana.
We do not think it necessary to discuss at large

the grounds of our conclusions. We will briefly
indicate some of them.
The Constitution itself provides for military

government, as well as for civil government. And
we do not understand it to be claimed that the
civil safeguards of the Constitution have
application in cases within the proper sphere of
the former.
What, then, is that proper sphere? Congress has

power to raise and support armies, to provide and
maintain a navy, to make rules for the government
and regulation of the land and naval forces, and to
provide for governing such part of the militia as
may be in the service of the United States.
It is not denied that the power to make rules for

the government of the army and navy is a power
to provide for trial and punishment by military
courts without a jury. It has been so understood
and exercised from the adoption of the
Constitution to the present time. . . .
We by no means assert that Congress can

establish and apply the laws of war where no war
has been declared or exists.
Where peace exists, the laws of peace must

prevail. What we do maintain is that, when the
nation is involved in war, and some portions of the
country are invaded, and all are exposed to
invasion, it is within the power of Congress to
determine in what states or district such great and
imminent public danger exists as justifies the
authorization of military tribunals for the trial of
crimes and offences against the discipline or
security of the army or against the public safety. . .
.
We cannot doubt that, in such a time of public

danger, Congress had power under the
Constitution to provide for the organization of a
military commission and for trial by that
commission of persons engaged in this conspiracy.
The fact that the Federal courts were open was
regarded by Congress as a sufficient reason for
not exercising the power, but that fact could not
deprive Congress of the right to exercise it. Those
courts might be open and undisturbed in the
execution of their functions, and yet wholly
incompetent to avert threatened danger or to
punish, with adequate promptitude and certainty,
the guilty conspirators. . . .
Mr. Justice WAYNE, Mr. Justice SWAYNE, and Mr.

Justice MILLER concur with me in these views.
Although the Court’s decision was unanimous as to

Milligan’s claim of illegal imprisonment, the justices
split on the power of the government to suspend
habeas corpus under the conditions presented in the
case. A majority of five (Clifford, Davis, Field, Grier,
and Nelson) held that neither the president nor
Congress, acting separately or in agreement, could
suspend the writ of habeas corpus as long as the
civilian courts were in full operation and the area
was not a combat zone. In a concurring opinion
joined by Miller, Swayne, and Wayne, Chief Justice
Chase argued that although the president did not
have the power to establish these military tribunals,
Congress did.
Before the Court handed down its ruling in this case,

President Johnson commuted Milligan’s sentence to
life in prison, a sentence he was serving under
General Hovey in an Ohio prison when the case was
decided. Milligan was released from custody in April
1866 (see Box 5-2).
World War II
As we already have seen, the restriction of civil
liberties during time of war is not uncommon.
Nations pressed for their very survival may feel
compelled to deny basic liberties to insure against
the efforts of traitors and saboteurs. World War II
was no exception. During that period the
government took many steps that amounted to
suppressions of rights and liberties. The most
infamous of such actions, which we discuss shortly,
was the internment of Americans of Japanese
descent.
Yet another action paralleled the one at issue in

Milligan: the use of military tribunals. In 1941
federal authorities captured eight Nazi saboteurs
who had illegally entered the country. All had
previously lived in the United States, and one
claimed to be a U.S. citizen. President Franklin
Roosevelt, in his capacity as president and
commander in chief of the army and navy, and acting
under what he believed to be congressional authority
granted to him by the Articles of War,12 ordered the
saboteurs to be tried by a military tribunal. The
Germans filed for a writ of habeas corpus, claiming
that the president had no authority to subject them
to military trial and that they, like Milligan, had the
right to be tried in the civilian courts.
12 Article I of the Constitution gives Congress the

power “To make Rules for the Government and
Regulation of the land and naval Forces.” Under this
power, Congress enacted the Articles of War in 1806.
The system of military justice continued to operate
under the Articles of War (with revisions) until 1950
when Congress passed the Uniform Code of Military
Justice, which went into effect in 1951 and replaced
the Articles of War.
Box 5-2 Aftermath . . . Lambdin P. Milligan
BEGINNING with his October 1864 arrest for

disloyal practices and continuing throughout the
controversy over his activities, Lambdin Milligan
claimed that the charges were a fantasy created
by the Republicans for political gain. By the time
the Supreme Court reversed his conviction and
death sentence, Milligan had spent eighteen
months in prison. Upon his release, he returned to
his hometown of Huntington, Indiana, where he
was received as a local hero. Two decades earlier
Milligan had moved with his family to the Indiana
town from Ohio to farm and practice law. He had
also been active in local Democratic Party politics,
unsuccessfully running for Congress and governor.
Milligan immediately sought revenge for the

treatment he had received at the hands of the
military. He filed suit for trespass and false
imprisonment against James Slack, a local
attorney who first urged that he be arrested;
General Alvin Hovey, who had ordered his arrest;
and twenty-two others involved in his prosecution.
The jury decided in favor of Milligan, but the law
placed a $5 ceiling on damages awarded in such
cases, limiting the satisfaction he received from
his judicial victory.
Milligan ran a successful legal practice in

Huntington for an additional thirty years. He
retired in 1897 at the age of eighty-five. He died
two years later, only three months after the death
of his second wife.
Source: Mark C. Carnes, ed., American National

Biography, vol. 15 (New York: Oxford University
Press, 1999), 529–530.
In Ex parte Quirin (1942), however, the justices

unanimously upheld the government’s authority to
try these men by military tribunal. Why did the Court
reach a decision seemingly inconsistent with the
precedent set in Milligan? According to the justices,
the Nazi saboteurs were unlawful combatants.
Contrary to the laws of war, they secretly and
illegally entered the country without uniform for the
purpose of gathering military information or
destroying life and property. As such, the saboteurs
had no right to be treated as prisoners of war but
could be subject to trial by military tribunal.
Milligan, by comparison, was an American citizen,
permanently residing in the United States, and not a
military combatant in service to the enemy. The
Quirin Court also emphasized that Congress had
explicitly approved of the use of military
commissions in the Articles of War. In a case we
discuss later in this chapter, in Hamdan v.
Rumsfeld (2006), Justice Stevens took issue with
the Quirin Court’s conclusion that Congress gave its
approval to the military commissions, deeming it
“controversial.”
Other commentators suggest that the circumstances

surrounding the two earlier cases help explain the
different result: Milligan was decided after the war
was over, whereas Quirin came down “during the
darkest days of World War II,” as Chief Justice
William H. Rehnquist wrote.13
13 William H. Rehnquist, All the Laws but One: Civil

Liberties in Wartime (New York: Knopf, 1998), 221.
Rehnquist is probably right: It did not help the Nazis

that they, unlike Milligan, were captured and tried
during one of the most desperate times of the war
when public opinion toward Germany was especially
hostile. Six of the eight saboteurs were sentenced to
death, and the remaining two received long prison
terms in return for their cooperation with federal
authorities.
Until recently this case provoked less criticism and

notoriety than litigation associated with the
internment of Japanese Americans, but it is worthy
of our consideration. The final section of this chapter
discusses President George W. Bush’s authorization
of the use of military tribunals for foreign nationals
suspected of terrorism, giving Quirin and Milligan
new relevance.
Prisoner Richard Quirin, thirty-four, is escorted on

July 12, 1942, to the courtroom in the Justice
Department building where he and seven other
accused Nazi saboteurs stood trial before a special
military commission.
© Bettmann/CORBIS
We leave it to you to ponder these and other

possibilities. You might want to consider also the
contemporary reaction to Quirin, which was, as
Rehnquist suggests, decidedly against the saboteurs.
If anything, Americans were “disappointed” that the
Court even took the case, believing that the eight
should be “shot on sight.”14 But subsequent
responses have cast the whole episode, including the
Court’s decision, in a different light. A decade or so
after the decision, Justice Felix Frankfurter deemed
it “not a happy precedent.” Legal scholar John
Frank, who served as a clerk to Justice Hugo Black
at the time the Court decided Quirin, said simply,
“The Court allowed itself to be stampeded,”
presumably by the Roosevelt administration.15
Despite these reactions, Quirin remains good law, as
the Court has never overruled it. Keep this point in
mind when we return to the subject of military
tribunals in the last section of this chapter.
14 Alpheus T. Mason, “Inter Arma Silent Leges,”

Harvard Law Review 69 (1955): 815.
15 The quotes in this paragraph come from Tony

Mauro, “A Mixed Precedent for Military Tribunals,”
Legal Times, November 19, 2001.
However negatively history has treated Quirin, the

reactions are relatively mild compared with those
evoked by the Court’s decision in Korematsu v.
United States (1944), one of the Japanese American
internment cases. Read Justice Black’s decision
carefully. Does he make a convincing case that the
conditions of war stretch the Constitution to the
point that exclusion orders based on race or national
origin are permissible? How can you explain the fact
that some of the justices who were the most
sympathetic to civil liberties causes—Black, Harlan
Fiske Stone, William O. Douglas, and Wiley Rutledge
—voted to approve the military orders? Compare
Black’s opinion with the dissents of Justice Frank
Murphy, who emphasizes the racial foundations of
the policy, and Justice Robert H. Jackson, who
stresses the possible long-term consequences of
construing the Constitution to uphold the
government’s actions.
Korematsu v. United States 323 U.S. 214 (1944)
court/323/214.html
Vote: 6 (Black, Douglas, Frankfurter, Reed,

Rutledge, Stone)
3 (Jackson, Murphy, Roberts)
OPINION OF THE COURT: Black

CONCURRING OPINION: Frankfurter
DISSENTING OPINIONS: Jackson, Murphy,
Roberts
Facts:
The origins of Korematsu lie in Japan’s bombing of
Pearl Harbor on December 7, 1941, which touched
off a wave of anti-Japanese hysteria in the United
States. In the early weeks of the Pacific war the
Japanese fleet demonstrated remarkable strength
and power, and the United States feared that
Japanese forces were planning an invasion of the
West Coast. The large numbers of people of
Japanese ancestry living on the coast also became
a matter of concern. Many thought that among the
Japanese American population were significant
numbers of people sympathetic to the Japanese
war effort, people who might aid the enemy in an
invasion of the United States.
To prevent such an occurrence, on February 19,

1942, President Roosevelt issued Executive Order
9066, which applied to all people of Japanese
background residing on the West Coast. His initial
command placed all Japanese Americans under a
tight curfew that required them to stay in their
homes between 8:00 p.m. and 6:00 a.m. and to
register for future relocation. This order was
followed by the much harsher orders to evacuate
Japanese Americans from the Pacific Coast area
and move them to inland detention centers. The
first of these, Civilian Exclusion Order 34, came on
May 3. It was not issued directly by Roosevelt, but
by Lieutenant General John L. DeWitt, the
commanding general of the Western Defense
Command. The secretary of war had authorized
DeWitt to issue the order pursuant to Roosevelt’s
executive order of February 19, which Congress
had ratified in March.
During World War II thousands of Japanese

Americans were removed from their jobs and
homes and relocated to internment camps. In
1988, more than four decades after the war,
Congress appropriated $20,000 in compensation
for each of the 75,000 surviving internees.
Library of Congress
The program made no attempt to distinguish the

loyal from the disloyal or the citizen from the
noncitizen—it affected all persons of Japanese
ancestry. The government interned an estimated
110,000 Japanese American citizens and resident
aliens, some for as long as four years.16 These
actions spawned a number of important lawsuits.
16 See Peter H. Irons, Justice at War: The Story of

the Japanese American Internment Cases (New
In 1943 the Supreme Court heard a challenge to

the curfew regulations brought by Gordon
Hirabayashi, an American citizen of Japanese
descent. He was a native of Washington State and
a pacifist of the Quaker faith. At the time he
challenged the government actions, he was a
senior at the University of Washington. In
Hirabayashi v. United States (1943), the
Supreme Court unanimously upheld the
constitutionality of the curfew program. For the
Court, Chief Justice Harlan Fiske Stone explained
that the war powers doctrine gave the government
ample authority to impose the restrictions. The
grave and threatening conditions of war made the
racially based program constitutionally
acceptable.
The following year the Court heard Korematsu v.

United States (1944), an appeal attacking the
most serious denial of the civil liberties of
Japanese Americans—the orders removing them to
detention camps. Fred Korematsu was arrested
May 30, 1942, by San Leandro, California, police
for being on the public streets in violation of the
government’s evacuation orders. Korematsu was a
native-born American whose parents had
immigrated to the United States from Japan. He
grew up in the San Francisco area. Rejected for
military service for health reasons, he worked in
the defense industry as a welder. When arrested,
he tried to convince police that he was of Spanish
Hawaiian origin. He had undergone plastic
surgery to make his racial characteristics less
pronounced in an effort to avoid the anti-Japanese
discrimination he feared because of his
engagement to an Italian American woman.17
After the arrest, representatives of the American
Civil Liberties Union approached Korematsu and
offered to defend him and challenge the validity of
the evacuation program. The Japanese American
Citizens League also lent support.
17 Ibid., 93–99.
Arguments:
For the petitioner, Fred Toyosaburo
Korematsu:
The congressional law, proclamations, and
orders are unconstitutional because they
deprive Korematsu of rights accorded to other
citizens of the United States without due
process of law in violation of the Fifth
Amendment. These include the right to “live
and work where he will” (Allegeyer v.
Louisiana), “to establish a home” (Meyer v.
Nebraska), and to “freedom of movement”
(Williams v. Fears).
The government’s actions deny Korematsu
equal protection of the laws; they discriminate
on the basis of race. Although the equal
protection clause of the Fourteenth
Amendment applies to the states, for purposes
of equal protection the due process clause of
the Fifth Amendment, which applies to the
federal government, and the Fourteenth
Amendment clause are identical. The utter
inequality at issue here violates the due
process clause, which in the United States
cannot mean one law for one citizen and
another for another citizen. Prejudice, not
military necessity, inspired the internments.

States:
The order was a valid exercise of the war
power. This Court ruled in Hirabayashi that the
joint war power of the president and Congress
is sufficiently broad to cover a measure for
which there is “any substantial basis” to
conclude that a “protective measure is
necessary to meet the threat of sabotage and
espionage.”
A substantial basis exists to conclude that
some persons of Japanese ancestry, although
American citizens, had formed an attachment
to and sympathy and enthusiasm for Japan. It
would be impossible to have quickly and
accurately distinguished these persons from
other Japanese Americans.
Mr. Justice Black Delivered the Opinion of the

Court.
It should be noted, to begin with, that all legal

restrictions which curtail the civil rights of a
single racial group are immediately suspect. That
is not to say that all such restrictions are
unconstitutional. It is to say that courts must
subject them to the most rigid scrutiny. Pressing
public necessity may sometimes justify the
existence of such restrictions; racial antagonism
never can. . . .
[I]n the Hirabayashi case . . . it was contended

that the curfew order and other orders on which it
rested were beyond the war powers of the
Congress, the military authorities, and of the
President, as Commander in Chief of the Army,
and, finally, that to apply the curfew order against
none but citizens of Japanese ancestry amounted
to a constitutionally prohibited discrimination
solely on account of race. To these questions, we
gave the serious consideration which their
importance justified. We upheld the curfew order
as an exercise of the power of the government to
take steps necessary to prevent espionage and
sabotage in an area threatened by Japanese
attack.
In the light of the principles we announced in the

Hirabayashi case, we are unable to conclude that
it was beyond the war power of Congress and the
Executive to exclude those of Japanese ancestry
from the West Coast war area at the time they did.
True, exclusion from the area in which one’s home
is located is a far greater deprivation than
constant confinement to the home from 8 p.m. to 6
a.m. Nothing short of apprehension by the proper
military authorities of the gravest imminent
danger to the public safety can constitutionally
justify either. But exclusion from a threatened
area, no less than curfew, has a definite and close
relationship to the prevention of espionage and
sabotage. The military authorities, charged with
the primary responsibility of defending our shores,
concluded that curfew provided inadequate
protection and ordered exclusion. They did so, as
pointed out in our Hirabayashi opinion, in
accordance with Congressional authority to the
military to say who should, and who should not,
remain in the threatened areas.
In this case the petitioner challenges the
assumptions upon which we rested our
conclusions in the Hirabayashi case. . . . After
careful consideration of these contentions we are
compelled to reject them.
Here, as in the Hirabayashi case, “. . . we cannot

reject as unfounded the judgment of the military
authorities and of Congress that there were
disloyal members of that population, whose
number and strength could not be precisely and
quickly ascertained. We cannot say that the
warmaking branches of the Government did not
have ground for believing that in a critical hour
such persons could not readily be isolated and
separately dealt with, and constituted a menace to
the national defense and safety, which demanded
that prompt and adequate measures be taken to
guard against it.”
Like curfew, exclusion of those of Japanese origin

was deemed necessary because of the presence of
an unascertained number of disloyal members of
the group, most of whom we have no doubt were
loyal to this country. It was because we could not
reject the finding of the military authorities that it
was impossible to bring about an immediate
segregation of the disloyal from the loyal that we
sustained the validity of the curfew order as
applying to the whole group. In the instant case,
temporary exclusion of the entire group was
rested by the military on the same ground. . . .
That there were members of the group who
retained loyalties to Japan has been confirmed by
investigations made subsequent to the exclusion.
Approximately five thousand American citizens of
Japanese ancestry refused to swear unqualified
allegiance to the United States and to renounce
allegiance to the Japanese Emperor, and several
thousand evacuees requested repatriation to
Japan.
We uphold the exclusion order. . . . In doing so, we

are not unmindful of the hardships imposed by it
upon a large group of American citizens. But
hardships are part of war, and war is an
aggregation of hardships. All citizens alike, both in
and out of uniform, feel the impact of war in
greater or lesser measure. Citizenship has its
responsibilities as well as its privileges, and in
time of war the burden is always heavier.
Compulsory exclusion of large groups of citizens
from their homes, except under circumstances of
direst emergency and peril, is inconsistent with
our basic governmental institutions. But when
under conditions of modern warfare our shores
are threatened by hostile forces, the power to
protect must be commensurate with the
threatened danger. . . .
It is said that we are dealing here with the case of

imprisonment of a citizen in a concentration camp
solely because of his ancestry, without evidence or
inquiry concerning his loyalty and good disposition
towards the United States. Our task would be
simple, our duty clear, were this a case involving
the imprisonment of a loyal citizen in a
concentration camp because of racial prejudice.
Regardless of the true nature of the assembly and
relocation centers—and we deem it unjustifiable to
call them concentration camps with all the ugly
connotations that term implies—we are dealing
specifically with nothing but an exclusion order. To
cast this case into outlines of racial prejudice,
without reference to the real military dangers
which were presented, merely confuses the issue.
Korematsu was not excluded from the Military
Area because of hostility to him or his race. He
was excluded because we are at war with the
Japanese Empire, because the properly
constituted military authorities feared an invasion
of our West Coast and felt constrained to take
proper security measures, because they decided
that the military urgency of the situation
demanded that all citizens of Japanese ancestry be
segregated from the West Coast temporarily, and
finally, because Congress, reposing its confidence
in this time of war in our military leaders—as
inevitably it must—determined that they should
have the power to do just this. There was evidence
of disloyalty on the part of some, the military
authorities considered that the need for action
was great, and time was short. We cannot—by
availing ourselves of the calm perspective of
hindsight—now say that at that time these actions
were unjustified.
Affirmed.
MR. JUSTICE FRANKFURTER,

concurring.
The provisions of the Constitution which confer on
the Congress and the President powers to enable
this country to wage war are as much part of the
Constitution as provisions looking to a nation at
peace. And we have had recent occasion to quote
approvingly the statement of former Chief Justice
Hughes that the war power of the Government is
“the power to wage war successfully.” Hirabayashi
v. United States. Therefore, the validity of action
under the war power must be judged wholly in the
context of war. That action is not to be stigmatized
as lawless because like action in times of peace
would be lawless. To talk about a military order
that expresses an allowable judgment of war
needs by those entrusted with the duty of
conducting war as “an unconstitutional order” is
to suffuse a part of the Constitution with an
atmosphere of unconstitutionality. . . . To
recognize that military orders are “reasonably
expedient military precautions” in time of war and
yet to deny them constitutional legitimacy makes
of the Constitution an instrument for dialectic
subtleties not reasonably to be attributed to the
hard-headed Framers, of whom a majority had had
actual participation in war. If a military order such
as that under review does not transcend the
means appropriate for conducting war, such action
by the military is as constitutional as would be any
authorized action by the Interstate Commerce
Commission within the limits of the constitutional
power to regulate commerce. And being an
exercise of the war power explicitly granted by the
Constitution for safeguarding the national life by
prosecuting war effectively, I find nothing in the
Constitution which denies to Congress the power
to enforce such a valid military order by making
its violation an offense triable in the civil courts.
To find that the Constitution does not forbid the
military measures now complained of does not
carry with it approval.
MR. JUSTICE MURPHY,
dissenting.
This exclusion of “all persons of Japanese ancestry,
both alien and non-alien,” from the Pacific Coast
area on a plea of military necessity in the absence
of martial law ought not to be approved. Such
exclusion goes over “the very brink of
constitutional power” and falls into the ugly abyss
of racism.
In dealing with matters relating to the prosecution

and progress of a war, we must accord great
respect and consideration to the judgments of the
military authorities who are on the scene and who
have full knowledge of the military facts. The
scope of their discretion must, as a matter of
necessity and common sense, be wide. And their
judgments ought not to be overruled lightly by
those whose training and duties ill-equip them to
deal intelligently with matters so vital to the
physical security of the nation.
At the same time, however, it is essential that

there be definite limits to military discretion,
especially where martial law has not been
declared. Individuals must not be left
impoverished of their constitutional rights on a
plea of military necessity that has neither
substance nor support. Thus, like other claims
conflicting with the asserted constitutional rights
of the individual, the military claim must subject
itself to the judicial process of having its
reasonableness determined and its conflicts with
other interests reconciled. . . .
The judicial test of whether the Government, on a
plea of military necessity, can validly deprive an
individual of any of his constitutional rights is
whether the deprivation is reasonably related to a
public danger that is so “immediate, imminent,
and impending” as not to admit of delay and not to
permit the intervention of ordinary constitutional
processes to alleviate the danger. Civilian
Exclusion Order No. 34, banishing from a
prescribed area of the Pacific Coast “all persons of
Japanese ancestry, both alien and non-alien,”
clearly does not meet that test. Being an obvious
racial discrimination, the order deprives all those
within its scope of the equal protection of the
laws. . . . It further deprives these individuals of
their constitutional rights to live and work where
they will, to establish a home where they choose
and to move about freely. In excommunicating
them without benefit of hearings, this order also
deprives them of all their constitutional rights to
procedural due process. Yet no reasonable relation
to an “immediate, imminent, and impending”
public danger is evident to support this racial
restriction which is one of the most sweeping and
complete deprivations of constitutional rights in
the history of this nation in the absence of martial
law.
It must be conceded that the military and naval

situation in the spring of 1942 was such as to
generate a very real fear of invasion of the Pacific
Coast, accompanied by fears of sabotage and
espionage in that area. The military command was
therefore justified in adopting all reasonable
means necessary to combat these dangers. In
adjudging the military action taken in light of the
then apparent dangers, we must not erect too high
or too meticulous standards; it is necessary only
that the action have some reasonable relation to
the removal of the dangers of invasion, sabotage
and espionage. But the exclusion, either
temporarily or permanently, of all persons with
Japanese blood in their veins has no such
reasonable relation. And that relation is lacking
because the exclusion order necessarily must rely
for its reasonableness upon the assumption that
all persons of Japanese ancestry may have a
dangerous tendency to commit sabotage and
espionage and to aid our Japanese enemy in other
ways. It is difficult to believe that reason, logic or
experience could be marshalled in support of such
an assumption.
That this forced exclusion was the result in good

measure of this erroneous assumption of racial
guilt rather than bona fide military necessity is
evidenced by the Commanding General’s Final
Report on the evacuation from the Pacific Coast
area. In it he refers to all individuals of Japanese
descent as “subversive,” as belonging to “an
enemy race” whose “racial strains are undiluted,”
and as constituting “over 112,000 potential
enemies . . . at large today” along the Pacific
Coast. . . .
The main reasons relied upon by those responsible

for the forced evacuation, therefore, do not prove
a reasonable relation between the group
characteristics of Japanese Americans and the
dangers of invasion, sabotage and espionage. The
reasons appear, instead, to be largely an
accumulation of much of the misinformation, half-
truths and insinuations that for years have been
directed against Japanese Americans by people
with racial and economic prejudices—the same
people who have been among the foremost
advocates of the evacuation. A military judgment
based upon such racial and sociological
considerations is not entitled to the great weight
ordinarily given the judgments based upon strictly
military considerations. . . .
The military necessity which is essential to the

validity of the evacuation order thus resolves itself
into a few intimations that certain individuals
actively aided the enemy, from which it is inferred
that the entire group of Japanese Americans could
not be trusted to be or remain loyal to the United
States. . . . To give constitutional sanction to that
inference in this case, however well-intentioned
may have been the military command on the
Pacific Coast, is to adopt one of the cruelest of the
rationales used by our enemies to destroy the
dignity of the individual and to encourage and
open the door to discriminatory actions against
other minority groups in the passions of tomorrow.
...
I dissent, therefore, from this legalization of

racism. Racial discrimination in any form and in
any degree has no justifiable part whatever in our
democratic way of life. It is unattractive in any
setting but it is utterly revolting among a free
people who have embraced the principles set forth
in the Constitution of the United States . . .
MR. JUSTICE JACKSON,
dissenting.
Korematsu was born on our soil, of parents born in
Japan. The Constitution makes him a citizen of the
United States by nativity and a citizen of
California by residence. No claim is made that he
is not loyal to this country. There is no suggestion
that apart from the matter involved here he is not
law-abiding and well disposed. Korematsu,
however, has been convicted of an act not
commonly a crime. It consists merely of being
present in the state whereof he is a citizen, near
the place where he was born, and where all his life
he has lived.
Even more unusual is the series of military orders

which made this conduct a crime. They forbid
such a one to remain, and they also forbid him to
leave. . . .
A citizen’s presence in the locality, however, was

made a crime only if his parents were of Japanese
birth. Had Korematsu been one of four—the others
being, say, a German alien enemy, an Italian alien
enemy, and a citizen of American-born ancestors,
convicted of treason but out on parole—only
Korematsu’s presence would have violated the
order. The difference between their innocence and
his crime would result, not from anything he did,
said, or thought, different than they, but only in
that he was born of different racial stock.
Now, if any fundamental assumption underlies our

system, it is that guilt is personal and not
inheritable. Even if all of one’s antecedents had
been convicted of treason, the Constitution forbids
its penalties to be visited upon him, for it provides
that “no attainder of treason shall work corruption
of blood, or forfeiture except during the life of the
person attainted.” But here is an attempt to make
an otherwise innocent act a crime merely because
this prisoner is the son of parents as to whom he
had no choice, and belongs to a race from which
there is no way to resign. If Congress in peace-
time legislation should enact such a criminal law, I
should suppose this Court would refuse to enforce
it. . . .
It would be impracticable and dangerous idealism

to expect or insist that each specific military
command in an area of probable operations will
conform to conventional tests of constitutionality.
When an area is so beset that it must be put under
military control at all, the paramount
consideration is that its measures be successful,
rather than legal. The armed services must
protect a society, not merely its Constitution. The
very essence of the military job is to marshal
physical force, to remove every obstacle to its
effectiveness, to give it every strategic advantage.
Defense measures will not, and often should not,
be held within the limits that bind civil authority in
peace. No court can require such a commander in
such circumstances to act as a reasonable man; he
may be unreasonably cautious and exacting.
Perhaps he should be. But a commander in
temporarily focusing the life of a community on
defense is carrying out a military program; he is
not making law in the sense the courts know the
term. He issues orders, and they may have a
certain authority as military commands, although
they may be very bad as constitutional law.
But if we cannot confine military expedients by the

Constitution, neither would I distort the
Constitution to approve all that the military may
deem expedient. This is what the Court appears to
be doing, whether consciously or not. I cannot say,
from any evidence before me, that the orders of
General DeWitt were not reasonably expedient
military precautions, nor could I say that they
were. But even if they were permissible military
procedures, I deny that it follows that they are
constitutional. If, as the Court holds, it does follow,
then we may as well say that any military order
will be constitutional and have done with it.
The limitation under which courts always will

labor in examining the necessity for a military
order are illustrated by this case. How does the
Court know that these orders have a reasonable
basis in necessity? No evidence whatever on that
subject has been taken by this or any other court.
There is sharp controversy as to the credibility of
the DeWitt report. So the Court, having no real
evidence before it, has no choice but to accept
General DeWitt’s own unsworn, self-serving
statement, untested by any cross-examination,
that what he did was reasonable. And thus it will
always be when courts try to look into the
reasonableness of a military order.
In the very nature of things, military decisions are

not susceptible of intelligent judicial appraisal.
They do not pretend to rest on evidence, but are
made on information that often would not be
admissible and on assumptions that could not be
proved. Information in support of an order could
not be disclosed to courts without danger that it
would reach the enemy. Neither can courts act on
communications made in confidence. Hence,
courts can never have any real alternative to
accepting the mere declaration of the authority
that issued the order that it was reasonably
necessary from a military viewpoint.
Much is said of the danger to liberty from the

Army program for deporting and detaining these
citizens of Japanese extraction. But a judicial
construction of the due process clause that will
sustain this order is a far more subtle blow to
liberty than the promulgation of the order itself. A
military order, however unconstitutional, is not apt
to last longer than the military emergency. Even
during that period a succeeding commander may
revoke it all. But once a judicial opinion
rationalizes such an order to show that it
conforms to the Constitution, or rather
rationalizes the Constitution to show that the
Constitution sanctions such an order, the Court for
all time has validated the principle of racial
discrimination in criminal procedure and of
transplanting American citizens. The principle
then lies about like a loaded weapon ready for the
hand of any authority that can bring forward a
plausible claim of an urgent need. . . .
I should hold that a civil court cannot be made to

enforce an order which violates constitutional
limitations even if it is a reasonable exercise of
military authority. The courts can exercise only the
judicial power, can apply only law, and must abide
by the Constitution, or they cease to be civil
courts and become instruments of military policy. .
..
My duties as a justice as I see them do not require

me to make a military judgment as to whether
General DeWitt’s evacuation and detention
program was a reasonable military necessity. I do
not suggest that the courts should have attempted
to interfere with the Army in carrying out its task.
But I do not think they may be asked to execute a
military expedient that has no place in law under
the Constitution. I would reverse the judgment
and discharge the prisoner.
The Korematsu decision was softened, but only

slightly, by Ex parte Endo (1944), handed down the
same day. In that case Mitsuye Endo had been
caught escaping from a detention center for
Japanese Americans. She had, however, gone
through the appropriate government procedures and
had been classified as loyal to the United States. The
justices ruled in her favor, holding that the
government does not have the authority to detain
persons whose loyalty has been established. The
Korematsu decision has been severely criticized, and
in 1988 Congress approved $20,000 in reparations
for each living Japanese American who was interned
during the war (see Box 5-3). Finally, in 2018 the
Court ended the possibility of Korematsu lying
“about like a loaded weapon,” as Justice Jackson
famously put it in his dissent. In Trump v. Hawaii,
the majority finally overruled Korematsu with these
words:
[We] express what is already obvious: Korematsu

was gravely wrong the day it was decided, has
been overruled in the court of history, and—to be
clear—“has no place in law under the
Constitution.” (Jackson, J., dissenting).
Box 5-3 Aftermath . . . Fred Korematsu
FOLLOWING his arrest and conviction in 1942 for

refusing to leave his Northern California home in
compliance with President Franklin Roosevelt’s
evacuation orders, Fred T. Korematsu was
sentenced to five years’ probation. He was also
sent with other Japanese Americans to an isolated
internment camp in Topaz, Utah. After the war, he
returned to his home in San Leandro, California,
married, and continued his work as a welder.
President Bill Clinton stands with Fred Korematsu

after awarding him the Presidential Medal of
Freedom on January 15, 1998.
AP Photo/Dennis Cook
Almost forty years later, documents were

discovered providing evidence that officials of the
U.S. Navy and the Justice Department had
intentionally deceived the Supreme Court by
suppressing information showing that Japanese
Americans posed no threat during World War II.
Based on this new evidence, lawyers representing
Korematsu filed a legal action to clear his name. In
November 1983 a federal district court in San
Francisco overturned Korematsu’s conviction.
Charges against Gordon Hirabayashi for violating
a curfew imposed on Japanese Americans, upheld
by the Supreme Court in 1942, were similarly
reversed by a Seattle federal court in 1986. These
legal actions helped fuel a movement that led
Congress in 1988 to approve $20,000 in
reparations for each living Japanese American
who was interned during the war.
In 1998 President Bill Clinton awarded
Korematsu, then seventy-eight years old, the
Presidential Medal of Freedom, the nation’s
highest civilian award. “In the long history of our
country’s constant search for justice,” Clinton
said, “some names of ordinary citizens stand for
millions of souls. Plessy, Brown, Parks. To that
distinguished list, today we add the name of Fred
Korematsu.” Korematsu died in Marin County,
California, on March 30, 2005, at the age of
eighty-six.
Sources: New York Times, January 31, 1983,

November 11, 1983, August 11, 1988, February
19, 1992; San Francisco Chronicle, January 16,
1998.
Korean Conflict
During the war in Korea the justices were called on
to decide the constitutional validity of yet another
executive action taken in the name of national
security. As you read Justice Black’s opinion for the
Court in Youngstown Sheet & Tube Co. v. Sawyer
(1952), compare it to his opinion in Korematsu. Both
involved actions the president took to strengthen
war efforts. Does it make sense to you that the Court
approved the detention of more than 110,000
individuals on the basis of national origin but ruled
that the government could not take possession of the
steel mills? Note the analysis provided in Justice
Jackson’s concurring opinion, in which he lays out an
approach for deciding questions of presidential
power in relation to congressional action. Consider,
too, the dissenting opinion of Chief Justice Frederick
M. Vinson, who concludes that the national
emergency justified the president’s actions.
The attorney representing the steel industry in

Youngstown Sheet & Tube Co. v. Sawyer (1952),
John W. Davis Jr. (left), arriving at the Supreme Court
on May 13, 1952, with acting attorney general Philip
B. Perlman. Davis was the Democratic nominee for
the presidency in 1924, capturing 29 percent of the
popular vote in a loss to Calvin Coolidge. He later
represented the school board defendants in the 1954
school desegregation cases.
© Bettmann/CORBIS
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S.
579 (1952)
court/343/579.html
Vote: 6 (Black, Burton, Clark, Douglas,

Frankfurter, Jackson)
3 (Minton, Reed, Vinson)
OPINION OF THE COURT: Black

CONCURRING OPINIONS: Burton, Clark,
Douglas, Frankfurter, Jackson
DISSENTING OPINION: Vinson
Facts:
In 1951 a labor dispute began in the American
steel industry. In December the United
Steelworkers union announced that it would call a
strike at the end of that month, when its contract
with the steel companies expired. For the next
several months the Federal Mediation and
Conciliation Service and the Federal Wage
Stabilization Board tried to work out a settlement,
but without success. On April 4, 1952, the union
said that its strike would begin on April 9.
President Harry S. Truman was not about to let a

strike hit the steel industry. The nation was
engaged in a war in Korea, and steel was needed
to produce arms and other military equipment.
Only hours before the strike was to begin, Truman
issued an executive order commanding Secretary
of Commerce Charles Sawyer to seize the nation’s
steel mills and keep them in operation. Sawyer in
turn ordered the mill owners to continue to run
their facilities as operators for the United States.
Truman’s seizure order cited no statutory

authority for his action because there was none.
Federal statutes allowed government seizure of
industrial plants for certain specified reasons, but
the settlement of a labor dispute was not one of
them. In fact, the Taft-Hartley Act of 1947 rejected
the idea that labor disputes could be resolved by
such means. Instead, the act authorized the
president to impose an eighty-day cooling-off
period as a way to postpone any strike that
seriously threatened the public interest. Truman,
however, had little regard for the Taft-Hartley Act,
which Congress had passed over his veto. The
president ignored the cooling-off period
alternative and took the direct action of seizing
the mills. The authority vested to him as president
and commander in chief was enough, in Truman’s
view, to authorize the action.
Congress might have improved the president’s

legal ground by immediately passing legislation
authorizing such seizures retroactively, but it did
not (nor did it take any action to stop the
president’s seizures). The mill owners complied
with the seizure orders under protest and filed
suit in federal court to have Truman’s action
declared unconstitutional. The district court ruled
in favor of the steel industry, enjoining the
secretary from seizing the plants, but the same
day the court of appeals stayed the injunction.
Arguments:
For the petitioners, Youngstown Sheet &
Tube Co. et al.:
The president’s action was inconsistent with
and contrary to the remedy Congress expressly
provided in the Taft-Hartley Act. There was and
could be no valid reason for disregarding the
congressional remedy.
The seizure was not an action taken to meet a
sudden national emergency in a situation
where no other remedy was available. It was
taken with the goal of settling a labor dispute
by executive fiat when another remedy was
available. Petitioners stand ready to settle the
strike in the manner prescribed by Congress.
The Constitution does not give the president
the power to seize the petitioners’ property.
The seizure cannot be justified by the
president’s power as commander in chief
because that power is limited to a command or
executive function. The president’s military
functions do not cover any power to legislate
on the war or related questions.
If executive action is not authorized by the
Constitution or by Congress—as is the case
here—it is invalid. There is no place under the
Constitution for the concept of inherent
powers.

States:
The president took action, temporary in nature,
to meet a critical emergency. In so doing, he
acted in the discharge of his constitutional
function as chief executive and as commander
in chief and of his unique constitutional
responsibility for the conduct of foreign affairs.
In short, he used his constitutional powers to
deal with an emergency situation.
In addition to the general grant of executive
power in Article II, Section 1, and the powers
stemming from the commander in chief clause,
the president has a duty to “take Care that the
Laws be faithfully executed.” In In re Neagle
the Court made clear that this clause is
available to the president to justify actions
taken in the interests of carrying out national
policy and protecting the nation’s security.
American history and case law for 150 years
support the conclusion that the president has,
as the Court noted in Hirabayashi, a “wide
scope for the exercise of judgment and
discretion” in determining the nature and
extent of threats to the United States.
The Taft-Hartley Act was not intended to be
either an exclusive or a mandatory means of
dealing with labor disputes that threaten the
security of the United States. In the Defense of
Production Act of 1950, Congress wrote, “It is
the intent of Congress, in order to . . . maintain
uninterrupted production, that there be
effective procedures for the settlement of labor
disputes affecting national defense.”
Mr. Justice Black Delivered the Opinion of the
Court.
We are asked to decide whether the President was

acting within his constitutional power when he
issued an order directing the Secretary of
Commerce to take possession of and operate most
of the Nation’s steel mills. The mill owners argue
that the President’s order amounts to lawmaking,
a legislative function which the Constitution has
expressly confided to the Congress and not to the
President. The Government’s position is that the
order was made on findings of the President that
his action was necessary to avert a national
catastrophe which would inevitably result from a
stoppage of steel production, and that in meeting
this grave emergency the President was acting
within the aggregate of his constitutional powers
as the Nation’s Chief Executive and the
Commander in Chief of the Armed Forces of the
United States. . . .
The President’s power, if any, to issue the order

must stem either from an act of Congress or from
the Constitution itself. There is no statute that
expressly authorizes the President to take
possession of property as he did here. Nor is there
any act of Congress to which our attention has
been directed from which such a power can fairly
be implied. Indeed, we do not understand the
Government to rely on statutory authorization for
this seizure. There are two statutes which do
authorize the President to take both personal and
real property under certain conditions. However,
the Government admits that these conditions were
not met, and that the President’s order was not
rooted in either of the statutes. The Government
refers to the seizure provisions of one of these
statutes (the Defense Production Act) as “much
too cumbersome, involved, and time-consuming
for the crisis which was at hand.”
Moreover, the use of the seizure technique to

solve labor disputes in order to prevent work
stoppages was not only unauthorized by any
congressional enactment; prior to this controversy,
Congress had refused to adopt that method of
settling labor disputes. When the Taft-Hartley Act
was under consideration in 1947, Congress
rejected an amendment which would have
authorized such governmental seizures in cases of
emergency. Apparently it was thought that the
technique of seizure, like that of compulsory
arbitration, would interfere with the process of
collective bargaining. . . .
It is clear that, if the President had authority to

issue the order he did, it must be found in some
provision of the Constitution. . . . Particular
reliance is placed on provisions in Article II which
say that “The executive Power shall be vested in a
President . . . ”; that “he shall take Care that the
Laws be faithfully executed”, and that he “shall be
Commander in Chief of the Army and Navy of the
United States.”
The order cannot properly be sustained as an

exercise of the President’s military power as
Commander in Chief of the Armed Forces. The
Government attempts to do so by citing a number
of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a
theater of war. Such cases need not concern us
here. Even though “theater of war” be an
expanding concept, we cannot with faithfulness to
our constitutional system hold that the
Commander in Chief of the Armed Forces has the
ultimate power as such to take possession of
private property in order to keep labor disputes
from stopping production. This is a job for the
Nation’s lawmakers, not for its military
authorities.
Nor can the seizure order be sustained because of

the several constitutional provisions that grant
executive power to the President. In the
framework of our Constitution, the President’s
power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks
wise and the vetoing of laws he thinks bad. And
the Constitution is neither silent nor equivocal
about who shall make laws which the President is
to execute. The first section of the first article says
that “All legislative Powers herein granted shall be
vested in a Congress of the United States. . . .”
The President’s order does not direct that a

congressional policy be executed in a manner
prescribed by Congress—it directs that a
presidential policy be executed in a manner
prescribed by the President. . . .
The Founders of this Nation entrusted the

lawmaking power to the Congress alone in both
good and bad times. It would do no good to recall
the historical events, the fears of power and the
hopes for freedom that lay behind their choice.
Such a review would but confirm our holding that
this seizure order cannot stand.
Affirmed.
MR. JUSTICE JACKSON,

concurring in the judgment and
opinion of the Court.
That comprehensive and undefined presidential
powers hold both practical advantages and grave
dangers for the country will impress anyone who
has served as legal adviser to a President in time
of transition and public anxiety. While an interval
of detached reflection may temper teachings of
that experience, they probably are a more realistic
influence on my views than the conventional
materials of judicial decision which seem unduly
to accentuate doctrine and legal fiction. But, as we
approach the question of presidential power, we
half overcome mental hazards by recognizing
them. The opinions of judges, no less than
executives and publicists, often suffer the infirmity
of confusing the issue of a power’s validity with
the cause it is invoked to promote, of confounding
the permanent executive office with its temporary
occupant. The tendency is strong to emphasize
transient results upon policies—such as wages or
stabilization—and lose sight of enduring
consequences upon the balanced power structure
of our Republic.
A judge, like an executive adviser, may be

surprised at the poverty of really useful and
unambiguous authority applicable to concrete
problems of executive power as they actually
present themselves. Just what our forefathers did
envision, or would have envisioned had they
foreseen modern conditions, must be divined from
materials almost as enigmatic as the dreams
Joseph was called upon to interpret for Pharaoh. A
century and a half of partisan debate and
scholarly speculation yields no net result but only
supplies more or less apt quotations from
respected sources on each side of any question.
They largely cancel each other. And court
decisions are indecisive because of the judicial
practice of dealing with the largest questions in
the most narrow way.
The actual art of governing under our Constitution

does not, and cannot, conform to judicial
definitions of the power of any of its branches
based on isolated clauses, or even single Articles
torn from context. 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.
Presidential powers are not fixed but fluctuate
depending upon their disjunction or conjunction
with those of Congress. We may well begin by a
somewhat over-simplified grouping of practical
situations in which a President may doubt, or
others may challenge, his powers, and by
distinguishing roughly the legal consequences of
this factor of relativity.
1. When the President acts pursuant to an

express or implied authorization of Congress, his
authority is at its maximum, for it includes all that
he possesses in his own right plus all that
Congress can delegate. In these circumstances,
and in these only, may he be said (for what it may
be worth) to personify the federal sovereignty. If
his act is held unconstitutional under these
circumstances, it usually means that the Federal
Government, as an undivided whole, lacks power.
A seizure executed by the President pursuant to
an Act of Congress would be supported by the
strongest of presumptions and the widest latitude
of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might
attack it.
2. When the President acts in absence of either a

congressional grant or denial of authority, he can
only rely upon his own independent powers, but
there is a zone of twilight in which he and
Congress may have concurrent authority, or in
which its distribution is uncertain. Therefore,
congressional inertia, indifference or quiescence
may sometimes, at least as a practical matter,
enable, if not invite, measures on independent
presidential responsibility. In this area, any actual
test of power is likely to depend on the
imperatives of events and contemporary
imponderables rather than on abstract theories of
law.
3. When the President takes measures
incompatible with the expressed or implied will of
Congress, his power is at its lowest ebb, for then
he can rely only upon his own constitutional
powers minus any constitutional powers of
Congress over the matter. Courts can sustain
exclusive presidential control in such a case only
by disabling the Congress from acting upon the
subject. Presidential claim to a power at once so
conclusive and preclusive must be scrutinized with
caution, for what is at stake is the equilibrium
established by our constitutional system.
Into which of these classifications does this

executive seizure of the steel industry fit? It is
eliminated from the first by admission, for it is
conceded that no congressional authorization
exists for this seizure. . . .
Can it then be defended under flexible tests

available to the second category? It seems clearly
eliminated from that class because Congress has
not left seizure of private property an open field
but has covered it by . . . statutory policies
inconsistent with this seizure. . . .
This leaves the current seizure to be justified only

by the severe tests under the third grouping,
where it can be supported only by any remainder
of executive power after subtraction of such
powers as Congress may have over the subject. In
short, we can sustain the President only by
holding that seizure of such strike-bound
industries is within his domain and beyond control
by Congress. Thus, this Court’s first review of
such seizures occurs under circumstances which
leave presidential power most vulnerable to attack
and in the least favorable of possible
constitutional postures. . . .
The Solicitor General seeks the power of seizure

in three clauses of the Executive Article, the first
reading, “The executive Power shall be vested in a
President of the United States of America.” Lest I
be thought to exaggerate, I quote the
interpretation which his brief puts upon it: “In our
view, this clause constitutes a grant of all the
executive powers of which the Government is
capable.” If that be true, it is difficult to see why
the forefathers bothered to add several specific
items, including some trifling ones.
. . . I cannot accept the view that this clause is a

grant in bulk of all conceivable executive power,
but regard it as an allocation to the presidential
office of the generic powers thereafter stated.
The clause on which the Government next relies is

that “The President shall be Commander in Chief
of the Army and Navy of the United States. . . .”
These cryptic words have given rise to some of the
most persistent controversies in our constitutional
history. Of course, they imply something more
than an empty title. But just what authority goes
with the name has plagued presidential advisers
who would not waive or narrow it by nonassertion,
yet cannot say where it begins or ends. It
undoubtedly puts the Nation’s armed forces under
presidential command. Hence, this loose
appellation is sometimes advanced as support for
any presidential action, internal or external,
involving use of force, the idea being that it vests
power to do anything, anywhere, that can be done
with an army or navy. . . .
I cannot foresee all that it might entail if the Court

should indorse this argument. Nothing in our
Constitution is plainer than that declaration of a
war is entrusted only to Congress. Of course, a
state of war may, in fact, exist without a formal
declaration. But no doctrine that the Court could
promulgate would seem to me more sinister and
alarming than that a President whose conduct of
foreign affairs is so largely uncontrolled, and often
even is unknown, can vastly enlarge his mastery
over the internal affairs of the country by his own
commitment of the Nation’s armed forces to some
foreign venture. . . .
The third clause in which the Solicitor General

finds seizure powers is that “he shall take Care
that the Laws be faithfully executed. . . . That
authority must be matched against words of the
Fifth Amendment that “No person shall be . . .
deprived of life, liberty or property, without due
process of law. . . .” One gives a governmental
authority that reaches so far as there is law, the
other gives a private right that authority shall go
no farther. These signify about all there is of the
principle that ours is a government of laws, not of
men, and that we submit ourselves to rulers only if
under rules.
The Solicitor General lastly grounds support of the

seizure upon nebulous, inherent powers never
expressly granted, but said to have accrued to the
office from the customs and claims of preceding
administrations. The plea is for a resulting power
to deal with a crisis or an emergency according to
the necessities of the case, the unarticulated
assumption being that necessity knows no law. . . .
The appeal . . . that we declare the existence of

inherent powers ex necessitate to meet an
emergency asks us to do what many think would
be wise, although it is something the forefathers
omitted. They knew what emergencies were, knew
the pressures they engender for authoritative
action, knew, too, how they afford a ready pretext
for usurpation. We may also suspect that they
suspected that emergency powers would tend to
kindle emergencies. Aside from suspension of the
privilege of the writ of habeas corpus in time of
rebellion or invasion, when the public safety may
require it, they made no express provision for
exercise of extraordinary authority because of a
crisis. I do not think we rightfully may so amend
their work, and, if we could, I am not convinced it
would be wise to do so, although many modern
nations have forthrightly recognized that war and
economic crises may upset the normal balance
between liberty and authority. . . .
But [contemporary foreign experience] suggests

that emergency powers are consistent with free
government only when their control is lodged
elsewhere than in the Executive who exercises
them. That is the safeguard that would be nullified
by our adoption of the “inherent powers” formula.
Nothing in my experience convinces me that such
risks are warranted by any real necessity,
although such powers would, of course, be an
executive convenience.
In the practical working of our Government, we
already have evolved a technique within the
framework of the Constitution by which normal
executive powers may be considerably expanded
to meet an emergency. Congress may and has
granted extraordinary authorities which lie
dormant in normal times but may be called into
play by the Executive in war or upon proclamation
of a national emergency. . . .
In view of the ease, expedition and safety with

which Congress can grant and has granted large
emergency powers, certainly ample to embrace
this crisis, I am quite unimpressed with the
argument that we should affirm possession of
them without statute. Such power either has no
beginning or it has no end. If it exists, it need
submit to no legal restraint. I am not alarmed that
it would plunge us straightway into dictatorship,
but it is at least a step in that wrong direction. . . .
I cannot be brought to believe that this country

will suffer if the Court refuses further to
aggrandize the presidential office, already so
potent and so relatively immune from judicial
review, at the expense of Congress.
But I have no illusion that any decision by this

Court can keep power in the hands of Congress if
it is not wise and timely in meeting its problems. A
crisis that challenges the President equally, or
perhaps primarily, challenges Congress. If not
good law, there was worldly wisdom in the maxim
attributed to Napoleon that “The tools belong to
the man who can use them.” We may say that
power to legislate for emergencies belongs in the
hands of Congress, but only Congress itself can
prevent power from slipping through its fingers.
MR. CHIEF JUSTICE VINSON,

with whom MR. JUSTICE REED
and MR. JUSTICE MINTON join,
dissenting.
The District Court ordered the mills returned to
their private owners on the ground that the
President’s action was beyond his powers under
the Constitution.
This Court affirms. . . . Because we cannot agree

that affirmance is proper on any ground, and
because of the transcending importance of the
questions presented not only in this critical
litigation, but also to the powers of the President
and of future Presidents to act in time of crisis, we
are compelled to register this dissent. . . .
A review of executive action demonstrates that

our Presidents have on many occasions exhibited
the leadership contemplated by the Framers when
they made the President Commander in Chief, and
imposed upon him the trust to “take Care that the
Laws be faithfully executed.” With or without
explicit statutory authorization, Presidents have at
such times dealt with national emergencies by
acting promptly and resolutely to enforce
legislative programs, at least to save those
programs until Congress could act. Congress and
the courts have responded to such executive
initiative with consistent approval.
Our first President displayed at once the
leadership contemplated by the Framers. When
the national revenue laws were openly flouted in
some sections of Pennsylvania, President
Washington, without waiting for a call from the
state government, summoned the militia and took
decisive steps to secure the faithful execution of
the laws. . . .
Some six months before Pearl Harbor, a dispute at

a single aviation plant at Inglewood, California,
interrupted a segment of the production of
military aircraft. In spite of the comparative
insignificance of this work stoppage to total
defense production, as contrasted with the
complete paralysis now threatened by a shutdown
of the entire basic steel industry, and even though
our armed forces were not then engaged in
combat, President [Franklin] Roosevelt ordered
the seizure of the plant pursuant to the powers
vested in [him] by the Constitution and laws of the
United States, as President of the United States of
America and Commander in Chief of the Army and
Navy of the United States.
The Attorney General ([Robert] Jackson)

vigorously proclaimed that the President had the
moral duty to keep this Nation’s defense effort a
“going concern.” His ringing moral justification
was coupled with a legal justification equally well
stated:
The Presidential proclamation rests upon the

aggregate of the Presidential powers derived from
the Constitution itself and from statutes enacted
by the Congress. . . .
Focusing now on the situation confronting the
President . . . , we cannot but conclude that the
President was performing his duty under the
Constitution to “take Care that the Laws be
faithfully executed.” . . .
The absence of a specific statute authorizing

seizure of the steel mills as a mode of executing
the laws . . . has not until today been thought to
prevent the President from executing the laws.
Unlike . . . the head of a department when
administering a particular statute, the President is
a constitutional officer charged with taking care
that a “mass of legislation” be executed. Flexibility
as to mode of execution to meet critical situations
is a matter of practical necessity. This practical
construction of the “Take Care” clause [was]
adopted by this Court in In re Neagle . . . and
other cases. . . .
In this case, there is no statute prohibiting the

action taken by the President in a matter not
merely important, but threatening the very safety
of the Nation. Executive inaction in such a
situation, courting national disaster, is foreign to
the concept of energy and initiative in the
Executive as created by the Founding Fathers. . . .
The Framers knew, as we should know in these

times of peril, that there is real danger in
Executive weakness. . . .
[Yet, the Court says that] [t]he broad executive

power granted by Article II to an officer on duty
365 days a year cannot . . . be invoked to avert
disaster. Instead, the President must confine
himself to sending a message to Congress
recommending action. Under this messenger-boy
concept of the Office, the President cannot even
act to preserve legislative programs from
destruction so that Congress will have something
left to act upon. . . .
Presidents have been in the past, and any man

worthy of the Office should be in the future, free
to take at least interim action necessary to
execute legislative programs essential to survival
of the Nation. A sturdy judiciary should not be
swayed by the unpleasantness or unpopularity of
necessary executive action, but must
independently determine for itself whether the
President was acting, as required by the
Constitution, to “take Care that the Laws be
faithfully executed.”
Youngstown is interesting in at least two regards.

First, the justices were sharply divided over the
nature of executive power—a subject we covered in
Chapter 4. Two members of the Court (Douglas and
Black) adopted the “mere designation” or
enumerated approach, writing, “The President’s
power, if any, to issue the order must stem either
from an act of Congress or from the Constitution
itself.” Three justices (Vinson, Stanley Reed, and
Sherman Minton) took the opposite position. In their
opinion, the take care clause of Article II provided
the president with a sufficient constitutional basis
for his actions: he was taking steps that were in the
best interest of the country until Congress could act.
Jackson’s famous concurrence settled somewhere
between the two extremes. Although he seems to
read the vesting clause of Article II as a mere
designation of office, as do Black and Douglas,
Jackson concedes that other clauses in Article II can
and should be interpreted flexibly to accommodate
the modern presidency. But, in contrast to the
dissenters, he argued that President Truman could
not seize the mills because he had acted against the
“implied” desires of Congress. As Jackson puts it,
“When the President takes measures incompatible
with the expressed or implied will of Congress, his
power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any
constitutional powers of Congress over the matter.”
In other words, when the president is at odds with
Congress, he must show that he alone has conclusive
and exclusive power, and Congress has none (since
Congress withdrew whatever it has).
A second interesting point is this: although it is

typically the majority opinion that establishes
precedent for the nation, in Youngstown legal
analysts regard Jackson’s concurrence as the most
important statement coming out of the case. Indeed,
some scholars deem it the most important
concurrence ever written. The explanation, it seems,
is that Jackson provided a useful framework for
dealing with presidential power vis-à-vis Congress.
Foreign Policy in the Middle

East
Would the Court adopt the Jackson framework in
similar cases in times of national emergency? Dames
& Moore v. Regan (1981) and Zivotofsky v. Kerry
(2015), both involving foreign policy toward the
Middle East, provide some answers.
In Dames, the justices considered an appeal based

on a serious foreign policy problem from the Carter
administration—the Iran hostage crisis. Dames &
Moore involved the power of the president to seize
Iranian assets and use them as a bargaining chip to
help resolve an international stalemate. To preserve
the assets under his control, President Carter
disallowed any lawsuits by U.S. citizens and
corporations, requesting that the assets be used to
pay off judgments against Iran. Was the president
acting within his legitimate foreign policy powers?
Or was Dames & Moore Company correct in arguing
that he had gone too far? As you read the opinion,
compare it with the views expressed in Youngstown.
See how closely Rehnquist—a former law clerk to
Justice Jackson—ties his opinion to both Black’s
majority views and Jackson’s concurrence in
Youngstown.
Dames & Moore v. Regan 453 U.S. 654 (1981)
court/453/654.html

Powell, Rehnquist, Stevens, Stewart, White)

OPINION CONCURRING IN PART: Stevens
DISSENTING IN PART: Powell
Facts:
On November 4, 1979, Iranians seized the
American embassy in Tehran, captured its
diplomatic personnel, and held them hostage. In
response, President Carter invoked the
International Economic Emergency Powers Act
and froze all assets of the Iranian government and
its agencies within the jurisdiction of the United
States. As part of the regulations enforcing the
order, the Treasury Department ruled that unless
otherwise stipulated the seized Iranian assets
were protected against judgments, decrees, or
attachments by U.S. courts.
On December 19 Dames & Moore Company filed

suit in federal district court against the
government of Iran, the Atomic Energy
Organization of Iran, and a number of Iranian
banks. The suit claimed that the company had
been under contract with the Iranian Atomic
Energy Organization to conduct site inspections
for a proposed nuclear power facility and had not
been fully paid for its services. Dames & Moore
contended that the Iranians still owed the
company almost $3.5 million and asked the court
to grant it the back payments plus interest.
Furthermore, Dames & Moore wanted the district
court to attach Iranian assets in the United States
to ensure payment of the judgment.
The crisis ended in January 1981 when the United

States and Iran reached an agreement and the
hostages were released. As part of the settlement
the United States agreed to terminate all
American lawsuits involving the frozen Iranian
assets. A special Iran–United States Claims
Tribunal was established to settle disputes over
the Iranian assets; the tribunal’s judgments were
to be final and enforceable in the courts of any
nation. To implement these arrangements, the day
before he left office President Carter ordered that
all frozen Iranian assets be moved to the Federal
Reserve Bank in New York for ultimate transfer
back to Iran, with a portion set aside for payment
of Claims Tribunal judgments. In February 1981
President Reagan issued executive orders
reaffirming Carter’s actions.
With these orders in effect, the district court

denied attachments against the Iranian assets to
pay Dames & Moore. The company then filed a
suit against Secretary of the Treasury Donald
Regan. The district court ruled in favor of the
government, and the Supreme Court accepted the
company’s appeal, using expedited procedures to
bring the case immediately before the justices.
Arguments:
For the petitioner, Dames & Moore:
No president has ever done what has been
attempted here. A review of the cases and
international agreements cited by the
government reveals no executive settlement of
a commercial claim of a private American
citizen against a foreign state pending in an
American court at the time of settlement.
The president exceeded his constitutional and
statutory power by removing Iranian assets
from possible attachment by the federal
courts. The president does not have any
inherent authority to settle or remove
enforceable claims of Americans properly
before Article III courts by executive
agreement.
The International Emergency Economic Powers
Act authorizes temporary blocking and freezing
of foreign property. But when read against the
background of its predecessor statute, the
Trading with the Enemy Act, the IEEPA
[International Economic Emergency Powers
Act] does not authorize the president
permanently to transfer foreign property away
from American creditors and back to a hostile
power.
For the respondents, Donald T.

Regan, Secretary of the
Treasury, et al.:
As Justice Jackson noted in Youngstown Sheet
& Tube Co., presidential power is at its
maximum when exercised with the express or
implied authorization of Congress, as is the
case here. The president’s actions were
completely consistent with the language,
purposes, and background of the IEEPA.
In enacting the IEEPA Congress recognized the
necessity for the president to possess the
authority to control dispositions of alien
property in an effort to deal with external
threats to the national security, foreign policy,
or economy of the United States.
The president has and has long exercised the
authority under the Constitution to settle the
claims of American nationals against a foreign
country by executive agreement. This power
has been approved by Congress and the Court
(see United States v. Pink [1942]).
Justice Rehnquist Delivered the Opinion of the

Court.
The parties and the lower courts . . . have all

agreed that much relevant analysis is contained in
Youngstown Sheet & Tube Co. v. Sawyer (1952).
Justice Black’s opinion for the Court in that case,
involving the validity of President Truman’s effort
to seize the country’s steel mills in the wake of a
nationwide strike, recognized that “[t]he
President’s power, if any, to issue the order must
stem either from an act of Congress or from the
Constitution itself.” Justice Jackson’s concurring
opinion elaborated in a general way the
consequences of different types of interaction
between the two democratic branches in assessing
Presidential authority to act in any given case. . . .
Although we have in the past found and do today
find Justice Jackson’s classification of executive
actions into three general categories analytically
useful. . . . Justice Jackson himself recognized that
his three categories represented “a somewhat
over-simplified grouping,” and it is doubtless the
case that executive action in any particular
instance falls, not neatly in one of three
pigeonholes, but rather at some point along a
spectrum running from explicit congressional
authorization to explicit congressional prohibition.
This is particularly true as respects cases such as
the one before us, involving responses to
international crises the nature of which Congress
can hardly have been expected to anticipate in any
detail. . . .
Although we [decline] to conclude that the IEEPA

or the Hostage Act directly authorizes the
President’s suspension of claims for the reasons
noted, we cannot ignore the general tenor of
Congress’ legislation in this area in trying to
determine whether the President is acting alone
or at least with the acceptance of Congress. . . .
Congress cannot anticipate and legislate with
regard to every possible action the President may
find it necessary to take or every possible situation
in which he might act. Such failure of Congress
specifically to delegate authority does not,
“especially . . . in the areas of foreign policy and
national security,” imply “congressional
disapproval” of action taken by the Executive. On
the contrary, the enactment of legislation closely
related to the question of the President’s authority
in a particular case which evinces legislative
intent to accord the President broad discretion
may be considered to “invite” “measures on
independent presidential responsibility,”
Youngstown (Jackson, J., concurring). At least this
is so where there is no contrary indication of
legislative intent and when, as here, there is a
history of congressional acquiescence in conduct
of the sort engaged in by the President. . . .
Crucial to our decision today is the conclusion that

Congress has implicitly approved the practice of
claim settlement by executive agreement. This is
best demonstrated by Congress’ enactment of the
International Claims Settlement Act of 1949. The
Act had two purposes: (1) to allocate to United
States nationals funds received in the course of an
executive claims settlement with Yugoslavia, and
(2) to provide a procedure whereby funds
resulting from future settlements could be
distributed. To achieve these ends Congress
created the International Claims Commission, now
the Foreign Claims Settlement Commission, and
gave it jurisdiction to make final and binding
decisions with respect to claims by United States
nationals against settlement funds. By creating a
procedure to implement future settlement
agreements, Congress placed its stamp of
approval on such agreements. Indeed, the
legislative history of the Act observed that the
United States was seeking settlements with
countries other than Yugoslavia and that the bill
contemplated settlements of a similar nature in
the future. . . .
In addition to congressional acquiescence in the

President’s power to settle claims, prior cases of
this Court have also recognized that the President
does have some measure of power to enter into
executive agreements without obtaining the
advice and consent of the Senate. In United States
v. Pink, for example, the Court upheld the validity
of the Litvinov Assignment, which was part of an
Executive Agreement whereby the Soviet Union
assigned to the United States amounts owed to it
by American nationals so that outstanding claims
of other American nationals could be paid. . . .
Just as importantly, Congress has not disapproved

of the action taken here. Though Congress has
held hearings on the Iranian Agreement itself,
Congress has not enacted legislation or even
passed a resolution, indicating its displeasure with
the Agreement. Quite the contrary, the relevant
Senate Committee has stated that the
establishment of the Tribunal is “of vital
importance to the United States.” We are thus
clearly not confronted with a situation in which
Congress has in some way resisted the exercise of
Presidential authority.
Finally, we . . . emphasize the narrowness of our

decision. We do not decide that the President
possesses plenary power to settle claims, even as
against foreign governmental entities. . . . But
where, as here, the settlement of claims has been
determined to be a necessary incident to the
resolution of a major foreign policy dispute
between our country and another, and where, as
here, we can conclude that Congress acquiesced
in the President’s action, we are not prepared to
say that the President lacks the power to settle
such claims.
Affirmed.
Dames & Moore underscores the same principle that

the Court articulated almost a half century earlier in
Curtiss-Wright —the president has substantial
authority over matters of foreign policy. Yet those
powers are not as unlimited as perhaps Curtiss-
Wright suggested. As emphasized in Youngstown and
Dames & Moore, the president stands on much
firmer constitutional ground when acting with the
assent of Congress, which Rehnquist thought was
the case in the Dames & Moore dispute. But even
that, as we shall see, is no guarantee that the
justices will uphold what they believe to be
unconstitutional actions on the part of the political
branches.
What about the reverse, when Congress and the

president are at odds? Does this automatically spell
disaster for the president? Following Jackson’s
formulation in Youngstown, the Court said no in the
interesting case of Zivotofsky v. Kerry (2015). As you
read the excerpt here note how a seemingly small
dispute over passport regulation turned into an
interesting case pitting the president against
Congress for control over foreign policy. Also notice
how the justices make use of textual, historical, and
structural arguments to shore up their positions.
Zivotofsky v. Kerry, Secretary of State 576 U.S.

________ (2015)
628.html

Vote: 6 (Breyer, Ginsburg, Kagan, Kennedy,

Sotomayor, Thomas)
3 (Alito, Roberts, Scalia)
OPINION OF THE COURT: Kennedy

OPINION CONCURRING IN THE JUDGMENT
IN PART AND DISSENTING IN PART:
Thomas
DISSENTING OPINIONS: Roberts, Scalia
Facts:
Jerusalem’s political status has long been, and
remains, a delicate issue in current international
affairs—with, over the years, Israel and Palestine,
among others, asserting full or partial sovereignty
over the city.
In 1948 President Truman formally recognized

Israel in a signed statement of “recognition,” but
that statement did not recognize Israeli
sovereignty over Jerusalem. More to the point, no
U.S. president, from Truman through Obama, had
ever issued an official statement or declaration
acknowledging any country’s sovereignty over
Jerusalem. Instead, the executive branch
maintained that “the status of Jerusalem . . .
should be decided not unilaterally but in
consultation with all concerned.”
Ari Zivotofsky (right) with his nine-year-old son
Menachem. Menachem’s passport was at the
center of a dispute between Congress and the
president over whether Americans born in
Jerusalem should have their birthplaces listed as
“Jerusalem” or “Israel.”
© Evan Vucci/AP/Corbis
State Department policy on passports and

consular reports of births abroad reflects the
president’s position. The department’s Foreign
Affairs Manual (FAM) instructs its employees to
record the place of birth on a passport as the
“country [having] present sovereignty over the
actual area of birth.” If a citizen objects to the
country listed as sovereign, he or she may list the
city or town of birth rather than the country. The
FAM, however, does not allow citizens to list a
sovereign that conflicts with executive branch
policy. Because the United States does not
recognize any country as having sovereignty over
Jerusalem, the FAM instructs employees to record
the place of birth for citizens born there as
“Jerusalem.”
In 2002 Congress passed the act at issue here, the
Foreign Relations Authorization Act. Section 214
of the act is titled “United States Policy with
Respect to Jerusalem as the Capital of Israel.” The
subsection that lies at the heart of this case,
§214(d), addresses passports. That subsection
attempts to override the FAM by allowing citizens
born in Jerusalem to list their place of birth as
“Israel.” §214(d) states, “For purposes of the
registration of birth, certification of nationality, or
issuance of a passport of a United States citizen
born in the city of Jerusalem, the Secretary shall,
upon the request of the citizen or the citizen’s
legal guardian, record the place of birth as Israel.”
When he signed the act into law, President George

W. Bush issued a signing statement declaring his
position that §214(d) would, “if construed as
mandatory rather than advisory, impermissibly
interfere with the President’s constitutional
authority to formulate the position of the United
States, speak for the Nation in international
affairs, and determine the terms on which
recognition is given to foreign states.” The
president concluded, “U.S. policy regarding
Jerusalem has not changed.”
Some parties were not reassured by the

president’s statement. A cable from the U.S.
consulate in Jerusalem noted that the groups
representing Palestinians had all issued
statements claiming that §214(d) “undermines the
role of the U.S. as a sponsor of the peace process.”
In the Gaza Strip and elsewhere residents
marched in protest.
In response the secretary of state advised
diplomats to express their understanding of
“Jerusalem’s importance to both sides and to
many others around the world.” He noted his
belief that America’s “policy towards Jerusalem”
had not changed.
In 2002 Menachem Binyamin Zivotofsky was born

to U.S. citizens living in Jerusalem. In December of
that year, Zivotofsky’s mother visited the
American Embassy in Tel Aviv to request both a
passport and a consular report of birth abroad
(which certifies citizenship of an American born
outside the United States) for her son. She asked
that his country of birth be listed as “Israel.” The
embassy clerks explained that, pursuant to State
Department policy, the passport would list only
“Jerusalem.” Zivotofsky’s parents objected and, as
his guardians, brought suit on Menachem’s behalf
in a federal district court.
Zivotofsky claimed that §214(d) gave him the right

to have “Israel” recorded as his place of birth in
his passport. The secretary of state responded
that the case presented a nonjusticiable political
question or, in the alternative, that §214(d)
violated the Constitution by interfering with the
president’s constitutional power to “receive
Ambassadors and other public Ministers,” which
embraced the power to recognize a foreign
sovereign.
The district court dismissed the case, Zivotofsky

v. Clinton (2012), on the grounds that it raised a
political question (see Chapter 2). After the court
of appeals affirmed, the case went to the Supreme
Court in 2012. By an 8–1 vote (with only Justice
Breyer dissenting), the Court vacated and
remanded the case, holding that “the Judiciary
must decide if Zivotofsky’s interpretation of the
statute is correct, and whether the statute is
constitutional”—not whether Jerusalem is, in fact,
part of Israel.
On remand the court of appeals agreed with the

secretary of state (and the president), ruling that
214(d) unconstitutionally infringed on the
president’s authority to grant formal recognition
to a foreign sovereign. Zivotofsky again appealed
to the U.S. Supreme Court, which granted
certiorari in 2014.
(Note: In the lower courts, Zivotofsky waived any

argument that his consular report of birth abroad
should be treated differently than his passport. As
a result, the majority addressed only Zivotofsky’s
passport argument. Justice Clarence Thomas,
however, differentiated between passports and
consular reports in his opinion concurring in part
and dissenting in part.)
Arguments:
For the petitioner, Menachem Binyamin
Zivotofsky:
Justice Jackson’s concurring opinion in
Youngstown Sheet & Tube Co. v. Sawyer has
been adopted by this Court as “the accepted
framework for evaluating executive action in
this [foreign-policy] area.” This case falls within
Justice Jackson’s third category.
Congress frequently and routinely legislates,
pursuant to explicit constitutional authority, in
areas that affect foreign nations. One example
is immigration law.
There is no “recognition clause” in the U.S.
Constitution. The president is merely assigned
the ceremonial duty of receiving foreign
ambassadors. And even if there is, history
indicates that Congress has engaged in
legislative recognition of foreign governments
and participated in the recognition process.
For the respondent, John Kerry,

Secretary of State:
The Constitution’s text and structure, as well
as historical practice, establish that the
president has exclusive authority to recognize
foreign states and their governments, as well
as the territorial limits of their sovereignty.
By contrast, the Constitution makes no
provision for the Congress to participate in
recognition decisions, or to override the
president’s decisions.
The executive historically has been understood
to possess inherent constitutional authority to
determine passport content as it pertains to
the conduct of diplomacy. §214(d), which
purports to establish “United States policy with
respect to Jerusalem as the capital of Israel,”
encroaches on the president’s exclusive
constitutional authority to recognize foreign
sovereigns.
Justice Kennedy Delivered the Opinion of the
Court.
A delicate subject lies in the background of this

case. That subject is Jerusalem. Questions
touching upon the history of the ancient city and
its present legal and international status are
among the most difficult and complex in
international affairs. In our constitutional system
these matters are committed to the Legislature
and the Executive, not the Judiciary. As a result, in
this opinion the Court does no more, and must do
no more, than note the existence of international
debate and tensions respecting Jerusalem. Those
matters are for Congress and the President to
discuss and consider as they seek to shape the
Nation’s foreign policies. . . .
The Court addresses two questions to resolve the

interbranch dispute now before it. First, it must
determine whether the President has the exclusive
power to grant formal recognition to a foreign
sovereign. Second, if he has that power, the Court
must determine whether Congress can command
the President and his Secretary of State to issue a
formal statement that contradicts the earlier
recognition. The statement in question here is a
congressional mandate that allows a United States
citizen born in Jerusalem to direct the President
and Secretary of State, when issuing his passport,
to state that his place of birth is “Israel.” . . .
In considering claims of Presidential power this
Court refers to Justice Jackson’s familiar tripartite
framework from Youngstown Sheet & Tube Co. v.
Sawyer (1952) (concurring opinion). The
framework divides exercises of Presidential power
into three categories: First, when “the President
acts pursuant to an express or implied
authorization of Congress, his authority is at its
maximum. . . .” Second, “in absence of either a
congressional grant or denial of authority” there is
a “zone of twilight in which he and Congress may
have concurrent authority. Finally, when “the
President takes measures incompatible with the
expressed or implied will of Congress . . . he can
rely only upon his own constitutional powers
minus any constitutional powers of Congress over
the matter.” To succeed in this third category, the
President’s asserted power must be both
“exclusive” and “conclusive” on the issue.
In this case the Secretary contends that §214(d)

infringes on the President’s exclusive recognition
power by “requiring the President to contradict
his recognition position regarding Jerusalem in
official communications with foreign sovereigns.”
In so doing the Secretary acknowledges the
President’s power is “at its lowest ebb.”
Youngstown. Because the President’s refusal to
implement §214(d) falls into Justice Jackson’s third
category, his claim must be “scrutinized with
caution,” and he may rely solely on powers the
Constitution grants to him alone.
To determine whether the President possesses the

exclusive power of recognition the Court examines
the Constitution’s text and structure, as well as
precedent and history bearing on the question.
Recognition is a “formal acknowledgement” that a

particular “entity possesses the qualifications for
statehood” or “that a particular regime is the
effective government of a state.” . . .
Despite the importance of the recognition power

in foreign relations, the Constitution does not use
the term “recognition,” either in Article II or
elsewhere. The Secretary asserts that the
President exercises the recognition power based
on the Reception Clause, which directs that the
President “shall receive Ambassadors and other
public Ministers.” Art. II, §3. As Zivotofsky notes,
the Reception Clause received little attention at
the Constitutional Convention. In fact, during the
ratification debates, Alexander Hamilton claimed
that the power to receive ambassadors was “more
a matter of dignity than of authority,” a ministerial
duty largely “without consequence.” The
Federalist No. 69.
At the time of the founding, however, prominent

international scholars suggested that receiving an
ambassador was tantamount to recognizing the
sovereignty of the sending state. It is a logical and
proper inference, then, that a Clause directing the
President alone to receive ambassadors would be
understood to acknowledge his power to recognize
other nations.
This in fact occurred early in the Nation’s history

when President Washington recognized the
French Revolutionary Government by receiving its
ambassador. After this incident the import of the
Reception Clause became clear—causing Hamilton
to change his earlier view. He wrote that the
Reception Clause “includes th[e power] of judging,
in the case of a revolution of government in a
foreign country, whether the new rulers are
competent organs of the national will, and ought
to be recognised, or not.” As a result, the
Reception Clause provides support, although not
the sole authority, for the President’s power to
recognize other nations.
The inference that the President exercises the

recognition power is further supported by his
additional Article II powers. It is for the President,
“by and with the Advice and Consent of the
Senate,” to “make Treaties, provided two thirds of
the Senators present concur.” Art. II, §2, cl. 2. In
addition, “he shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint
Ambassadors” as well as “other public Ministers
and Consuls.”
As a matter of constitutional structure, these

additional powers give the President control over
recognition decisions. . . .
The text and structure of the Constitution grant

the President the power to recognize foreign
nations and governments. The question then
becomes whether that power is exclusive. The
various ways in which the President may
unilaterally effect recognition—and the lack of any
similar power vested in Congress—suggest that it
is. So, too, do functional considerations. Put
simply, the Nation must have a single policy
regarding which governments are legitimate in
the eyes of the United States and which are not.
Foreign countries need to know, before entering
into diplomatic relations or commerce with the
United States, whether their ambassadors will be
received; whether their officials will be immune
from suit in federal court; and whether they may
initiate lawsuits here to vindicate their rights.
These assurances cannot be equivocal.
Recognition is a topic on which the Nation must

“speak . . . with one voice.” That voice must be the
President’s. Between the two political branches,
only the Executive has the characteristic of unity
at all times. . . . The President is capable, in ways
Congress is not, of engaging in the delicate and
often secret diplomatic contacts that may lead to a
decision on recognition. . . . These qualities
explain why the Framers listed the traditional
avenues of recognition—receiving ambassadors,
making treaties, and sending ambassadors—as
among the President’s Article II powers. . . .
A clear rule that the formal power to recognize a

foreign government subsists in the President
therefore serves a necessary purpose in
diplomatic relations. [O]f course, . . . Congress has
an important role in other aspects of foreign
policy, and the President may be bound by any
number of laws Congress enacts. In this way
ambition counters ambition, ensuring that the
democratic will of the people is observed and
respected in foreign affairs as in the domestic
realm. See The Federalist No. 51 (J. Madison). . . .
The Secretary urges the Court to define the
executive power over foreign relations in even
broader terms. He contends that under the
Court’s precedent the President has “exclusive
authority to conduct diplomatic relations,” along
with “the bulk of foreign-affairs powers.” In
support of his submission that the President has
broad, undefined powers over foreign affairs, the
Secretary quotes United States v. Curtiss-Wright
Export Corp., which described the President as
“the sole organ of the federal government in the
field of international relations.” This Court
declines to acknowledge that unbounded power. A
formulation broader than the rule that the
President alone determines what nations to
formally recognize as legitimate—and that he
consequently controls his statements on matters
of recognition—presents different issues and is
unnecessary to the resolution of this case.
The Curtiss-Wright case does not extend so far as

the Secretary suggests. In Curtiss-Wright, the
Court considered whether a congressional
delegation of power to the President was
constitutional. . . . Describing why such . . .
delegation may be appropriate, the opinion stated:
“In this vast external realm, with its

important, complicated, delicate and manifold
problems, the President alone has the power
to speak or listen as a representative of the
nation. He makes treaties with the advice and
consent of the Senate; but he alone
negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is
powerless to invade it.”
This description of the President’s exclusive power

was not necessary to the holding of Curtiss-Wright
—which, after all, dealt with congressionally
authorized action, not a unilateral Presidential
determination. Indeed, Curtiss-Wright did not hold
that the President is free from Congress’
lawmaking power in the field of international
relations. . . . [W]hether the realm is foreign or
domestic, it is still the Legislative Branch, not the
Executive Branch, that makes the law.
Having examined the Constitution’s text and this

Court’s precedent, it is appropriate to turn to
accepted understandings and practice. In
separation-of-powers cases this Court has often
“put significant weight upon historical practice.”
Here, history is not all on one side, but on balance
it provides strong support for the conclusion that
the recognition power is the President’s alone. . . .
The first debate over the recognition power arose

in 1793, after France had been torn by revolution.
Once the Revolutionary Government was
established, Secretary of State Jefferson and
President Washington, without consulting
Congress, authorized the American Ambassador to
resume relations with the new regime. Soon
thereafter, the new French Government proposed
to send an ambassador, Citizen Genet, to the
United States. Members of the President’s Cabinet
agreed that receiving Genet would be a binding
and public act of recognition. They decided,
however, both that Genet should be received and
that consultation with Congress was not
necessary. Congress expressed no disagreement
with this position, and Genet’s reception marked
the Nation’s first act of recognition—one made by
the President alone. . . .
This [and other examples show] for the most part,

Congress has respected the Executive’s policies
and positions as to formal recognition. . . . Over
the last 100 years, there has been scarcely any
debate over the President’s power to recognize
foreign states. In this respect the Legislature, in
the narrow context of recognition, on balance has
acknowledged the importance of speaking “with
one voice.” . . . As the power to recognize foreign
states resides in the President alone, the question
becomes whether §214(d) infringes on the
Executive’s consistent decision to withhold
recognition with respect to Jerusalem. . . .
If the power over recognition is to mean anything,

it must mean that the President not only makes
the initial, formal recognition determination but
also that he may maintain that determination in
his and his agent’s statements. This conclusion is
a matter of both common sense and necessity. If
Congress could command the President to state a
recognition position inconsistent with his own,
Congress could override the President’s
recognition determination. . . . [I]f Congress could
alter the President’s statements on matters of
recognition or force him to contradict them,
Congress in effect would exercise the recognition
power.
As Justice Jackson wrote in Youngstown, when a
Presidential power is “exclusive,” it “disabl[es] the
Congress from acting upon the subject.” Here, the
subject is quite narrow: The Executive’s exclusive
power extends no further than his formal
recognition determination. But as to that
determination, Congress may not enact a law that
directly contradicts it. This is not to say Congress
may not express its disagreement with the
President in myriad ways. For example, it may
enact an embargo, decline to confirm an
ambassador, or even declare war. But none of
these acts would alter the President’s recognition
decision. . . .
Although the statement required by §214(d) would

not itself constitute a formal act of recognition, it
is a mandate that the Executive contradict his
prior recognition determination in an official
document issued by the Secretary of State. . . .
The flaw in §214(d) is further underscored by the

undoubted fact that the purpose of the statute was
to infringe on the recognition power—a power the
Court now holds is the sole prerogative of the
President. . . . From the face of §214, from the
legislative history, and from its reception, it is
clear that Congress wanted to express its
displeasure with the President’s policy by, among
other things, commanding the Executive to
contradict his own, earlier stated position on
Jerusalem. This Congress may not do.
It is true, as Zivotofsky notes, that Congress has

substantial authority over passports. . . .
The problem with §214(d), however, lies in how
Congress exercised its authority over passports. It
was an improper act for Congress to “aggrandiz[e]
its power at the expense of another branch” by
requiring the President to contradict an earlier
recognition determination in an official document
issued by the Executive Branch. To allow Congress
to control the President’s communication in the
context of a formal recognition determination is to
allow Congress to exercise that exclusive power
itself. As a result, the statute is unconstitutional.
In holding §214(d) invalid the Court does not

question the substantial powers of Congress over
foreign affairs in general or passports in
particular. This case is confined solely to the
exclusive power of the President to control
recognition determinations, including formal
statements by the Executive Branch
acknowledging the legitimacy of a state or
government and its territorial bounds. Congress
cannot command the President to contradict an
earlier recognition determination in the issuance
of passports.
The judgment of the Court of Appeals for the

District of Columbia Circuit is
Affirmed.
JUSTICE BREYER, concurring.

I continue to believe that this case presents a
political question inappropriate for judicial
resolution. See Zivotofsky v. Clinton (2012)
(BREYER, J., dissenting). But because precedent
precludes resolving this case on political question
grounds, I join the Court’s opinion.
JUSTICE THOMAS, concurring
in the judgment in part and
dissenting in part.
Our Constitution allocates the powers of the
Federal Government over foreign affairs in two
ways. First, it expressly identifies certain foreign
affairs powers and vests them in particular
branches, either individually or jointly. Second, it
vests the residual foreign affairs powers of the
Federal Government—i.e., those not specifically
enumerated in the Constitution—in the President
by way of Article II’s Vesting Clause.
Rather than adhere to the Constitution’s division

of powers, the Court relies on a distortion of the
President’s recognition power to hold both of
these parts of §214(d) unconstitutional. Because I
cannot join this faulty analysis, I concur only in
the portion of the Court’s judgment holding
§214(d) unconstitutional as applied to passports. I
respectfully dissent from the remainder of the
Court’s judgment. . . .
The Constitution specifies a number of foreign

affairs powers and divides them between the
political branches. . . .
These specific allocations, however, cannot

account for the entirety of the foreign affairs
powers exercised by the Federal Government.
Neither of the political branches is expressly
authorized, for instance, to communicate with
foreign ministers, to issue passports, or to repel
sudden attacks. Yet the President has engaged in
such conduct, with the support of Congress, since
the earliest days of the Republic.
The President’s longstanding practice of

exercising unenumerated foreign affairs powers
reflects a constitutional directive that “the
President ha[s] primary responsibility—along with
the necessary power—to protect the national
security and to conduct the Nation’s foreign
relations.” Hamdi v. Rumsfeld. Specifically, the
Vesting Clause of Article II provides that “[t]he
executive Power shall be vested in a President of
the United States.” Art. II, §1. This Clause is
notably different from the Vesting Clause of
Article I, which provides only that “[a]ll legislative
Powers herein granted shall be vested in a
Congress of the United States,” Art. I, §1. By
omitting the words “herein granted” in Article II,
the Constitution indicates that the “executive
Power” vested in the President is not confined to
those powers expressly identified in the document.
Instead, it includes all powers originally
understood as falling within the “executive Power”
of the Federal Government. . . .
Early practice of the founding generation also

supports this understanding of the “executive
Power.” Upon taking office, President Washington
assumed the role of chief diplomat; began to
direct the Secretary of Foreign Affairs who, under
the Articles of Confederation, had reported to the
Congress; and established the foreign policy of the
United States. At the same time, he respected
Congress’ prerogatives to declare war, regulate
foreign commerce, and appropriate funds. . . .
For its part, Congress recognized a broad
Presidential role in foreign affairs. It created an
“Executive department” called the “Department of
Foreign Affairs,” with a Secretary wholly
subordinate to the President. . . .
The statutory provision at issue implicates the

President’s residual foreign affairs power. . . . The
President argues that this provision violates his
foreign affairs powers generally and his
recognition power specifically. Zivotofsky rejoins
that Congress passed §214(d) pursuant to its
enumerated powers and its action must therefore
take precedence.
Neither has it quite right. The President is not

constitutionally compelled to implement §214(d)
as it applies to passports because passport
regulation falls squarely within his residual
foreign affairs power and Zivotofsky has identified
no source of congressional power to require the
President to list Israel as the place of birth for a
citizen born in Jerusalem on that citizen’s
passport. Section 214(d) can, however, be
constitutionally applied to consular reports of
birth abroad because those documents do not fall
within the President’s foreign affairs authority but
do fall within Congress’ enumerated powers over
naturalization.
In the Anglo-American legal tradition, passports

have consistently been issued and controlled by
the body exercising executive power—in England,
by the King; in the colonies, by the Continental
Congress; and in the United States, by President
Washington and every President since. . . .
That the President has the power to regulate
passports under his residual foreign affairs powers
does not, however, end the matter, for Congress
has repeatedly legislated on the subject of
passports. These laws have always been narrow in
scope. For example, Congress enacted laws
prohibiting the issuance of passports to
noncitizens, created an exception to that rule for
“persons liable to military duty,” and then
eliminated that exception. . . .
As with any congressional action, however, such

legislation is constitutionally permissible only
insofar as it is promulgated pursuant to one of
Congress’ enumerated powers. I must therefore
address whether Congress had constitutional
authority to enact §214(d)’s regulation of
passports. . . .
The Constitution contains no Passport Clause, nor

does it explicitly vest Congress with “plenary
authority over passports.” Because our
Government is one of enumerated powers,
“Congress has no power to act unless the
Constitution authorizes it to do so.” United States
v. Comstock (2010) (THOMAS, J., dissenting). And
“[t]he Constitution plainly sets forth the ‘few and
defined’ powers that Congress may exercise.” A
“passport power” is not one of them. . . .
JUSTICE SCALIA would locate Congress’ power to

enact the passport directive of §214(d) in
Congress’ power under the Necessary and Proper
Clause to bring into effect its enumerated power
over naturalization. . . . But this theory does not
account for the President’s power to act in this
area, nor does it confront difficult questions about
the application of the Necessary and Proper
Clause in the case of conflict among the branches.
...
Because the President has residual foreign affairs

authority to regulate passports and because there
appears to be no congressional power that
justifies §214(d)’s application to passports,
Zivotofsky’s challenge to the Executive’s
designation of his place of birth on his passport
must fail.
Although the consular report of birth abroad

shares some features with a passport, it is
historically associated with naturalization, not
foreign affairs. In order to establish a “uniform
Rule of Naturalization,” Congress must be able to
identify the categories of persons who are eligible
for naturalization, along with the rules for that
process. Congress thus has always regulated the
“acquisition of citizenship by being born abroad of
American parents . . . in the exercise of the power
conferred by the Constitution to establish a
uniform rule of naturalization.” . . .
The consular report of birth abroad is well suited

to carrying into execution the power conferred on
Congress in the Naturalization Clause. The report
developed in response to Congress’ requirement
that children born abroad to U. S. citizens register
with the consulate or lose their citizenship. And it
continues to certify the acquisition of U. S.
citizenship at birth by a person born abroad to a
U. S. citizen. . . .
Because regulation of the consular report of birth
abroad is justified as an exercise of Congress’
powers under the Naturalization and Necessary
and Proper Clauses and does not fall within the
President’s foreign affairs powers, §214(d)’s
treatment of that document is constitutional.

whom JUSTICE ALITO joins,
dissenting.
Today’s decision is a first: Never before has this
Court accepted a President’s direct defiance of an
Act of Congress in the field of foreign affairs. We
have instead stressed that the President’s power
reaches “its lowest ebb” when he contravenes the
express will of Congress, “for what is at stake is
the equilibrium established by our constitutional
system.” Youngstown Sheet & Tube Co. v. Sawyer
(1952) (Jackson, J., concurring). . . .
Ultimately, the only power that could support the

President’s position is the one the majority
purports to reject: the “exclusive authority to
conduct diplomatic relations.” The Government
offers a single citation for this allegedly exclusive
power: United States v. Curtiss-Wright Export
Corp. (1936). But as the majority rightly
acknowledges, Curtiss-Wright did not involve a
claim that the Executive could contravene a
statute; it held only that he could act pursuant to a
legislative delegation.
The expansive language in Curtiss-Wright casting

the President as the “sole organ” of the Nation in
foreign affairs certainly has attraction for
members of the Executive Branch. The Solicitor
General invokes the case no fewer than ten times
in his brief. But our precedents have never
accepted such a sweeping understanding of
executive power. . . .
Resolving the status of Jerusalem may be vexing,

but resolving this case is not. Whatever
recognition power the President may have,
exclusive or otherwise, is not implicated by
§214(d). It has not been necessary over the past
225 years to definitively resolve a dispute between
Congress and the President over the recognition
power. Perhaps we could have waited another 225
years. But instead the majority strains to reach the
question based on the mere possibility that
observers overseas might misperceive the
significance of the birthplace designation at issue
in this case. And in the process, the Court takes
the perilous step—for the first time in our history
—of allowing the President to defy an Act of
Congress in the field of foreign affairs.

THE CHIEF JUSTICE and
JUSTICE ALITO join, dissenting.
Before turning to Presidential power under Article
II, I think it well to establish the statute’s basis in
congressional power under Article I. Congress’s
power to “establish an uniform Rule of
Naturalization,” Art. I, §8, cl. 4, enables it to grant
American citizenship to someone born abroad. The
naturalization power also enables Congress to
furnish the people it makes citizens with papers
verifying their citizenship—say a consular report
of birth abroad (which certifies citizenship of an
American born outside the United States) or a
passport (which certifies citizenship for purposes
of international travel). As the Necessary and
Proper Clause confirms, every congressional
power “carries with it all those incidental powers
which are necessary to its complete and effectual
execution.” Even on a miserly understanding of
Congress’s incidental authority, Congress may
make grants of citizenship “effectual” by providing
for the issuance of certificates authenticating
them. . . .
No doubt congressional discretion in executing

legislative powers has its limits; Congress’s
chosen approach must be not only “necessary” to
carrying its powers into execution, but also
“proper.” Congress thus may not transcend
boundaries upon legislative authority stated or
implied elsewhere in the Constitution. But . . .
§214(d) does not transgress any such restriction.
The Court frames this case as a debate about

recognition. Recognition is a sovereign’s official
acceptance of a status under international law. . . .
[But] §214(d) has nothing to do with recognition.

Section 214(d) does not require the Secretary to
make a formal declaration about Israel’s
sovereignty over Jerusalem. And nobody suggests
that international custom infers acceptance of
sovereignty from the birthplace designation on a
passport or birth report, as it does from . . .
treaties or exchanges of ambassadors. Recognition
would preclude the United States (as a matter of
international law) from later contesting Israeli
sovereignty over Jerusalem. But making a notation
in a passport or birth report does not encumber
the Republic with any international obligations. It
leaves the Nation free (so far as international law
is concerned) to change its mind in the future. . . .
In the final analysis, the Constitution may well

deny Congress’s power to recognize—the power to
make an international commitment accepting a
foreign entity as a state, a regime as its
government, a place as a part of its territory, and
so on. But whatever else §214(d) may do, it plainly
does not make (or require the President to make)
a commitment accepting Israel’s sovereignty over
Jerusalem. . . .
JUSTICE THOMAS’s concurrence deems §214(d)

constitutional to the extent it regulates birth
reports, but unconstitutional to the extent it
regulates passports. The concurrence finds no
congressional power that would extend to the
issuance or contents of passports. Including the
power to regulate foreign commerce—even though
passports facilitate the transportation of
passengers, “a part of our commerce with foreign
nations.” Including the power over naturalization
—even though passports issued to citizens, like
birth reports, “have the same force and effect as
proof of United States citizenship as certificates of
naturalization.” . . . The concurrence’s stingy
interpretation of the enumerated powers forgets
that the Constitution does not “partake of the
prolixity of a legal code. . . .” It forgets, in other
words, “that it is a constitution we are
expounding.” McCulloch v. Maryland.
That brings me, in analytic crescendo, to the

concurrence’s suggestion that even if Congress’s
enumerated powers otherwise encompass §214(d),
and even if the President’s power to regulate the
contents of passports is not exclusive, the law
might still violate the Constitution, because it
“conflict[s]” with the President’s passport policy. It
turns the Constitution upside-down to suggest that
in areas of shared authority, it is the executive
policy that preempts the law, rather than the other
way around. Congress may make laws necessary
and proper for carrying into execution the
President’s powers, Art. I, §8, cl. 18, but the
President must “take Care” that Congress’s
legislation “be faithfully executed,” Art. II, §3. And
Acts of Congress made in pursuance of the
Constitution are the “supreme Law of the Land”;
acts of the President (apart from treaties) are not.
Art. VI, cl. 2. . . .
A President empowered to decide all questions

relating to [international disputes about statehood
and territory], immune from laws embodying
congressional disagreement with his position,
would have uncontrolled mastery of a vast share
of the Nation’s foreign affairs.
That is not the chief magistrate under which the

American People agreed to live when they adopted
the national charter. . . .
I dissent.
What should we make of Zivotofsky? First, it
provides direct evidence that Justice Jackson’s third
category will not always lead the Court to nullify
presidential action (as it did in Youngstown). Here
the president was able to demonstrate that his
power to recognize foreign governments belonged
exclusively to him, and for that reason the Court
invalidated §214(d) as an encroachment on his
power. Second, and despite ruling in the president’s
favor, Justice Kennedy acknowledged the role that
Congress plays in foreign affairs: “[W]hether the
realm is foreign or domestic, it is still the Legislative
Branch, not the Executive Branch, that makes the
law.” He even went so far as to cut back on some of
Curtiss-Wright ’s broad claims about presidential
power, as we noted in Chapter 4. Chief Justice John
Roberts, in his dissenting opinion, was even more
direct: “The expansive language in Curtiss-Wright
casting the President as the ‘sole organ’ of the
Nation in foreign affairs certainly has attraction for
members of the Executive Branch. [The brief for
Kerry] invokes the case no fewer than ten times. . . .
But our precedents have never accepted such a
sweeping understanding of executive power.”
Third, Zivotofsky, once again, provides an

opportunity to consider different approaches to the
balance of power between the president and
Congress in the real world of foreign affairs. Of the
range of views presented in the opinions—majority,
concurring, and dissenting—which do you find most
compelling? As you consider this question, reflect
not only on the cases we have covered in this
chapter but also on those we covered in Chapter 3
(especially on the necessary and proper clause) and
in Chapter 4 (theories of presidential power, along
with Curtiss-Wright ).
Which brings us to a final point: Two years after

Zivotofsky, in December 2017, Donald Trump
changed course and “officially recognized Jerusalem
as the capital of Israel.”18 Suppose Congress
responded with a law mandating a return to the
Truman–Obama policy: that the United States does
not recognize Israeli sovereignty over Jerusalem. In
a battle in the Supreme Court, who would prevail?
Congress or the president?
18 See Statement by President Trump on Jerusalem,

December 6, 2017,
https://www.whitehouse.gov/briefings-
statements/statement-president-trump-jerusalem/.
The War on Terrorism

The cases and materials we have considered so far
have special relevance for post–September 11, 2001
America. In the process of waging a “war on
terrorism”—a battle that may endure far longer than
any other conflict Americans have experienced—the
George W. Bush administration sent military forces
into two countries, Afghanistan and Iraq. The
president also took steps to restrict the rights and
liberties of Americans and foreigners alike. To some
observers, these steps amounted to little more than
the kinds of actions often taken by leaders, both in
the United States and abroad, when confronted with
threats to national security (see Box 5-4). In
interpreting Article II, the administration took a
unilateral approach. It argued that the president has
complete authority within his purview—including the
execution of his military powers—to pursue
whatever actions he thinks best regardless of
whether Congress has authorized them or not, and
courts may not review those actions. Others believe
that President Bush’s measures went too far.
Box 5-4 The War against Terrorism in Global

Perspective
In the wake of the terrorist attacks of September

11, 2001, the United States took a number of
steps that curtailed rights and liberties. In the text
we note some of these steps, as well as arguments
for and against them.
Worth noting here is that the United States is not

the only democracy that enacted measures
designed to combat terrorist activities. Others
throughout the world have passed or are
considering laws in the name of national security
that also may repress rights.
Canada. The Canadian parliament has adopted

several measures that raise the concerns of
civil libertarians. One allowed law enforcement
officials to detain foreign terrorism suspects
indefinitely without disclosing the evidence
against them. After the Canadian Supreme
Court struck down the law, the government
introduced new legislation that would allow
detention without a warrant if the detention
was deemed necessary to prevent a terrorist
act.
Denmark. Denmark’s antiterror laws ban
financing of radical groups and give police new
powers to eavesdrop electronically on
suspected radicals. Danish intelligence officers
have stepped up “preventive talks” with
potential radicals.
France. Under a law that took effect in 2004,
France bans “ostentatious” religious symbols in
schools. Most people believed the law was
aimed at the hijab (the headscarf worn by
many Muslim women and girls), but most
voters supported the ban. France also has
undertaken an antiterrorism campaign that
includes surveillance of mosques and raids for
unrelated reasons (such as tax inspections) on
places where Muslims in particular are found
(such as halal butchers’ shops). Terrorist
suspects can be detained for up to four days
without being charged.
Italy. After the July 2005 London bombings
carried out by Islamic extremists, the Italian
parliament approved a new antiterrorism law
that permits authorities to conduct surveillance
of the Internet and phone networks, to
interrogate suspects without lawyers being
present, to impose prison sentences and fines
on persons who purposely hide their faces in
public, and to implement more-expeditious
methods for expelling illegal immigrants who
pose a security threat to the country.
United Kingdom. The British government has
introduced several proposals designed to
tighten existing terrorism laws: banning certain
Islamist organizations; closing mosques
believed to be sources of terrorist agitation and
recruitment; streamlining the process by which
clerics deemed to be radical would be
deported, potentially to countries that practice
torture; stripping naturalized radicals of their
British citizenship; and creating closed pretrial
hearings at which secret evidence could be
introduced. In a setback to the government,
Britain’s highest court ruled that evidence
obtained through torture could not be used at
trial.
Sources: Washington Post; Freedom House

(http://www.freedomhouse.org).
Which side has the better case? To develop answers

to this question, let us consider the steps Congress
and the president took after the September 11
attacks.19 First, just one week later, Congress
enacted a resolution, the Authorization for Use of
Military Force (AUMF), authorizing the president to
“use all necessary and appropriate force against
those nations, organizations, or persons he
determines planned, authorized, committed, or aided
the terrorist attacks” or “harbored such
organizations or persons, in order to prevent any
future acts of international terrorism against the
United States by such nations, organizations or
persons.” Acting under the AUMF, in October 2001
the president ordered U.S. armed forces to
Afghanistan to battle the al-Qaeda terrorist network,
which was behind the attacks, and the Taliban
regime, which supported al-Qaeda.
19 This section draws on James E. Pfander’s One

Supreme Court (New York: Oxford University Press,
2009). We also make use of Lee Epstein, Daniel E.
Ho, Gary King, and Jeffrey A. Segal, “The Supreme
Court during Crisis: How War Affects Only Nonwar
Cases,” New York University Law Review 80 (April
2005): 1–116.
Several weeks after that, President Bush issued a

military order titled Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against
Terrorism, which was designed to accomplish two
ends. First, the administration wanted to detain
enemies of the United States (persons believed by
the president to be members of al-Qaeda and
persons involved in acts of international terrorism
against the United States or who knowingly
harbored such terrorists) in a naval detention center
at Guantanamo Bay, Cuba, for the duration of the
hostilities. The United States had taken this same
action with enemies captured during other
hostilities, but, under its reading of the Geneva
Conventions, it did not feel bound to accord these
“enemy combatants” the same treatment that the
United States had accorded other prisoners.20
Taking this step meant that the administration could
interrogate detainees in whatever manner it felt
appropriate and not necessarily in accord with the
conventions. Also notable is that the government
understood that the war on terrorism might continue
indefinitely, meaning that it could hold the detainees
indefinitely. Second, the administration’s order said
that any individual subject to the order, when tried,
would be tried by a military commission, not in a
state or federal court. Under such a commission, the
accused could be deprived of many of the rights
normally afforded accused persons, such as the
rights to remain silent, to be present at their own
proceedings, and to review the government’s
evidence. Moreover, the president’s order prohibited
a detainee from seeking review of the military
commission’s decision in a federal court through a
writ of habeas corpus or “any other remedy.”
20 The Geneva Conventions are a series of four

international agreements designed, among other
things, to provide protections to civilians during
armed conflicts and to those no longer participating
in such disputes, including wounded and sick
members of the armed forces and prisoners of war.
Since the last convention came into effect in 1950,
196 nations, including the United States, have
ratified the Geneva Conventions.
On what grounds did the administration justify the

terms of the order? It made two kinds of arguments.
First, the administration said it did not require
congressional authorization for its actions. Under its
interpretation of presidential wartime authority and
Supreme Court decisions, it believed that Article II
provided the executive with plenary authority to
detain the enemy combatants. This is a position
embraced by some of the cases and opinions we
have considered, especially Curtiss-Wright and
Thomas’s concurrence in Zivotofsky (though the
latter antedated Bush’s order). But it is an argument
that Justice Jackson’s concurrence in Youngstown
Sheet & Tube could be seen to reject. There was
another problem too with Bush’s claim of authority
to hold enemy combatants (at least those who were
U.S. citizens) without formal charges: a federal law
(18 U.S.C. §4001(a)) that said, “No citizen shall be
imprisoned or otherwise detained by the United
States except pursuant to an Act of Congress.” This
law was enacted to overturn an act of the Cold Act
era, the Emergency Detention Act of 1950, which
had authorized the attorney general, in time of
emergency, to detain anyone reasonably thought
likely to engage in espionage or sabotage. Congress
replaced it with 18 U.S.C. §4001(a) in 1971 out of
fear that the 1950 law could “authorize a repetition
of the World War II internment of citizens of
Japanese ancestry.”21 Congress meant to preclude
another episode like the one at issue in Korematsu v.
United States (1944).
21 See Justice Souter’s opinion in Hamdi v.

Rumsfeld.
In the face of these potential difficulties, the
administration had a back-up argument. Government
lawyers claimed that §4001(a) was, in fact, satisfied
because Congress had authorized the use of
detentions through the AUMF, its resolution
authorizing the use of military force.
How did the Court respond to these actions and

arguments by the administration and to legislation
Congress later passed to support the president’s
order? Not particularly enthusiastically, as Table 5-2
and Hamdi v. Rumsfeld (2004) suggest.
Table 5-2
Note: Excerpts of Rasul v. Bush, Hamdan v. Rumsfeld,

and Boumediene v. Bush appear in the online case
archive.
Hamdi v. Rumsfeld 542 U.S. 507 (2004)
court/542/507.html
Oral arguments may be found at

On the question of the validity of Hamdi’s

detention:
Vote: 5 (Breyer, Kennedy, O’Connor, Rehnquist,

Thomas)
4 (Ginsburg, Scalia, Souter, Stevens)
On the question of Hamdi’s access to courts and

lawyers:

Rehnquist, Scalia, Souter, Stevens)
1 (Thomas)
OPINION ANNOUNCING THE JUDGMENT OF

THE COURT: O’Connor
OPINION CONCURRING IN PART,
DISSENTING IN PART, AND CONCURRING
IN JUDGMENT: Souter
DISSENTING OPINIONS: Scalia, Thomas
Facts:
One week after the September 11, 2001 al-Qaeda
terrorist attacks on the United States, Congress
passed the Authorization for Use of Military Force
(AUMF) resolution, which gave the president
authority to “use all necessary and appropriate
force against those nations, organizations, or
persons he determines planned, authorized,
committed, or aided the terrorist attacks” or
“harbored such organizations or persons, in order
to prevent any future acts of international
terrorism against the United States.” On the basis
of this congressional grant of authority, President
Bush ordered American armed forces to
Afghanistan to attack al-Qaeda and the Taliban
regime that supported it.
During this military effort, Afghan elements

supporting the United States captured twenty-
year-old Yaser Esam Hamdi and delivered him to
U.S. forces. Hamdi was an American citizen by
virtue of his birth in Louisiana, but his family had
moved to Saudi Arabia when he was a child. After
being interrogated in Afghanistan, Hamdi was
transferred first to the U.S. naval base at
Guantanamo Bay, Cuba, then to military prisons in
Norfolk, Virginia, and Charleston, South Carolina.
The government claimed that Hamdi was an
“enemy combatant” and as such could be held
indefinitely without formal charges, court
proceedings, access to counsel, or the freedom to
communicate with anyone beyond the prison
walls.
In 2004 the Supreme Court upheld the military

detention of Yaser Hamdi, a U.S. citizen captured
during hostilities in Afghanistan, but also ruled
that Hamdi must be given an opportunity to rebut
the government’s designation of him as an “enemy
combatant.”
AP Photo/Asharq-al Awsat
In June 2002 Hamdi’s father, Esam Fouad Hamdi,

filed a petition for habeas corpus on behalf of his
son against Secretary of Defense Donald
Rumsfeld, claiming the continued detention
without formal charges or access to lawyers or the
courts violated the younger Hamdi’s constitutional
right to due process of law. Hamdi’s father argued
that his son was not engaged in military activity
but had gone to Afghanistan as a relief worker.
The United States countered that Hamdi had
received military training in Afghanistan and had
joined a Taliban unit prior to his capture in a
theater of war. The government’s allegations as to
Hamdi’s participation in Taliban activities were
submitted in the form of a statement by Michael
Mobbs, a Defense Department official. This
document, referred to as the Mobbs Declaration,
contained little in the way of direct factual
evidence.
After a series of hearings at the district and circuit

court levels, the U.S. Court of Appeals for the
Fourth Circuit ruled in favor of the government’s
position, holding that Hamdi could be detained
and was entitled only to the limited judicial
determination of whether the government had
acted properly under its war powers.
Arguments:
For the petitioner, Yaser Esam Hamdi et
al.:
Well acquainted with the danger posed by the
government’s power to effect detention, the
founders enshrined the power to suspend the
writ of habeas corpus in Article I and limited its
exercise to cases of rebellion or invasion. It
ensures that the executive cannot discard the
judicial process and imprison citizens at its
pleasure; only Congress has the power to
suspend the Great Writ.
The Constitution gives the executive no
inherent power to detain citizens indefinitely
during war or peace. While the commander in
chief clause necessarily entails plenary
executive authority in areas of actual fighting,
the power over citizens incident to this
authority is only temporary. The executive
enjoys the authority to detain citizens seized in
areas of actual fighting for only a limited period
of time as required by military necessity. Once
the citizen is removed from the area of actual
fighting, the Constitution requires statutory
authorization to hold that citizen indefinitely.
Federal law (18 U.S.C. § 4001(a)) makes clear
that only Congress can authorize the prolonged
detention of citizens.
For the respondents, Donald

Rumsfeld, Secretary of Defense,
et al.:
In our constitutional system, the responsibility
for waging war is committed to the political
branches. In time of war, the president, as
commander in chief, has the authority to
capture and detain enemy combatants for the
duration of hostilities. That includes enemy
combatants presumed to be U.S. citizens. See
Ex parte Quirin (1942).
The president’s determination that an
individual is an enemy combatant is entitled to
the utmost deference by a court.
Hamdi’s detention is bolstered by, and by no
means contrary to, the actions of Congress.
Congress has affirmed the type of classic
wartime detention at issue in this case.
Immediately following the September 11
attacks, Congress not only recognized by
statute that “the President has authority under
the Constitution to take action to deter and
prevent acts of international terrorism against
the United States” but also explicitly backed
the president’s use of “all necessary and
appropriate force” in connection with the
current conflict. The AUMF satisfies the
requirements of 18 U.S.C. §4001(a); it is
authorization of the detention of citizens and
noncitizens alike.
Justice O’Connor Announced the Judgment of

the Court and Delivered an Opinion, in which the
Chief Justice, Justice Kennedy, and Justice Breyer
Join.
At this difficult time in our Nation’s history, we are

called upon to consider the legality of the
Government’s detention of a United States citizen
on United States soil as an “enemy combatant”
and to address the process that is constitutionally
owed to one who seeks to challenge his
classification as such. . . . We hold that although
Congress authorized the detention of combatants
in the narrow circumstances alleged here, due
process demands that a citizen held in the United
States as an enemy combatant be given a
meaningful opportunity to contest the factual
basis for that detention before a neutral
decisionmaker. . . .
The threshold question before us is whether the

Executive has the authority to detain citizens who
qualify as “enemy combatants.” There is some
debate as to the proper scope of this term, and the
Government has never provided . . . the full
criteria that it uses in classifying individuals as
such. It has made clear, however, that, for
purposes of this case, the “enemy combatant” that
it is seeking to detain is an individual who, it
alleges, was “‘part of or supporting forces hostile
to the United States or coalition partners’” in
Afghanistan and who “‘engaged in an armed
conflict against the United States’” there. We
therefore answer only the narrow question before
us: whether the detention of citizens falling within
that definition is authorized.
The Government maintains that no explicit

congressional authorization is required, because
the Executive possesses plenary authority to
detain pursuant to Article II of the Constitution.
We do not reach the question whether Article II
provides such authority, however, because we
agree with the Government’s alternative position,
that Congress has in fact authorized Hamdi’s
detention, through the AUMF [the Authorization
for Use of Military Force resolution]. . . . and that
the AUMF satisfied §4001(a)’s requirement that a
detention be “pursuant to an Act of Congress.”
The AUMF authorizes the President to use “all

necessary and appropriate force” against “nations,
organizations, or persons” associated with the
September 11, 2001, terrorist attacks. There can
be no doubt that individuals who fought against
the United States in Afghanistan as part of the
Taliban, an organization known to have supported
the al Qaeda terrorist network responsible for
those attacks, are individuals Congress sought to
target in passing the AUMF. We conclude that
detention of individuals falling into the limited
category we are considering, for the duration of
the particular conflict in which they were
captured, is so fundamental and accepted an
incident to war as to be an exercise of the
“necessary and appropriate force” Congress has
authorized the President to use.
The capture and detention of lawful combatants

and the capture, detention, and trial of unlawful
combatants, by “universal agreement and
practice,” are “important incident[s] of war.” Ex
parte Quirin [1942]. The purpose of detention is to
prevent captured individuals from returning to the
field of battle and taking up arms once again. . . .
There is no bar to this Nation’s holding one of its

own citizens as an enemy combatant. In Quirin,
one of the detainees, Haupt, alleged that he was a
naturalized United States citizen. We held that
“[c]itizens who associate themselves with the
military arm of the enemy government, and with
its aid, guidance and direction enter this country
bent on hostile acts, are enemy belligerents within
the meaning of . . . the law of war.” . . . A citizen,
no less than an alien, can be “part of or supporting
forces hostile to the United States or coalition
partners” and “engaged in an armed conflict
against the United States”; such a citizen, if
released, would pose the same threat of returning
to the front during the ongoing conflict.
In light of these principles, it is of no moment that

the AUMF does not use specific language of
detention. Because detention to prevent a
combatant’s return to the battlefield is a
fundamental incident of waging war, in permitting
the use of “necessary and appropriate force,”
Congress has clearly and unmistakably authorized
detention in the narrow circumstances considered
here.
Hamdi objects, nevertheless, that Congress has

not authorized the indefinite detention to which he
is now subject. . . . As the Government concedes,
“given its unconventional nature, the current
conflict is unlikely to end with a formal cease-fire
agreement.” The prospect Hamdi raises is
therefore not far-fetched. If the Government does
not consider this unconventional war won for two
generations, and if it maintains during that time
that Hamdi might, if released, rejoin forces
fighting against the United States, then the
position it has taken throughout the litigation of
this case suggests that Hamdi’s detention could
last for the rest of his life. . . .
Hamdi contends that the AUMF does not

authorize indefinite or perpetual detention.
Certainly, we agree that indefinite detention for
the purpose of interrogation is not authorized.
Further, we understand Congress’ grant of
authority for the use of “necessary and
appropriate force” to include the authority to
detain for the duration of the relevant conflict, and
our understanding is based on longstanding law-
of-war principles [that detention may last no
longer than active hostilities]. If the practical
circumstances of a given conflict are entirely
unlike those of the conflicts that informed the
development of the law of war, that understanding
may unravel. But that is not the situation we face
as of this date. Active combat operations against
Taliban fighters apparently are ongoing in
Afghanistan. The United States may detain, for the
duration of these hostilities, individuals
legitimately determined to be Taliban combatants
who “engaged in an armed conflict against the
United States.” If the record establishes that
United States troops are still involved in active
combat in Afghanistan, those detentions are part
of the exercise of “necessary and appropriate
force,” and therefore are authorized by the AUMF.
Ex parte Milligan (1866) does not undermine our

holding about the Government’s authority to seize
enemy combatants. . . . In that case, the Court
made repeated reference to the fact that its
inquiry into whether the military tribunal had
jurisdiction to try and punish Milligan turned in
large part on the fact that Milligan was not a
prisoner of war, but a resident of Indiana arrested
while at home there. That fact was central to its
conclusion. Had Milligan been captured while he
was assisting Confederate soldiers by carrying a
rifle against Union troops on a Confederate
battlefield, the holding of the Court might well
have been different. The Court’s repeated
explanations that Milligan was not a prisoner of
war suggest that had these different
circumstances been present he could have been
detained under military authority for the duration
of the conflict, whether or not he was a citizen. . . .
Even in cases in which the detention of enemy

combatants is legally authorized, there remains
the question of what process is constitutionally
due to a citizen who disputes his enemy-
combatant status. . . .
Though they reach radically different conclusions
on the process that ought to attend the present
proceeding, the parties begin on common ground.
All agree that, absent suspension, the writ of
habeas corpus remains available to every
individual detained within the United States. Only
in the rarest of circumstances has Congress seen
fit to suspend the writ. At all other times, it has
remained a critical check on the Executive,
ensuring that it does not detain individuals except
in accordance with law. All agree suspension of
the writ has not occurred here. . . .
. . . [A]s critical as the Government’s interest may

be in detaining those who actually pose an
immediate threat to the national security of the
United States during ongoing international
conflict, history and common sense teach us that
an unchecked system of detention carries the
potential to become a means for oppression and
abuse of others who do not present that sort of
threat. See Ex parte Milligan. . . . We reaffirm
today the fundamental nature of a citizen’s right
to be free from involuntary confinement by his
own government without due process of law, and
we weigh the opposing governmental interests
against the curtailment of liberty that such
confinement entails.
On the other side of the scale are the weighty and

sensitive governmental interests in ensuring that
those who have in fact fought with the enemy
during a war do not return to battle against the
United States. . . . [T]he law of war and the
realities of combat may render such detentions
both necessary and appropriate, and our due
process analysis need not blink at those realities.
Without doubt, our Constitution recognizes that
core strategic matters of war making belong in the
hands of those who are best positioned and most
politically accountable for making them. . . .
Striking the proper constitutional balance here is

of great importance to the Nation during this
period of ongoing combat. But it is equally vital
that our calculus not give short shrift to the values
that this country holds dear or to the privilege
that is American citizenship. It is during our most
challenging and uncertain moments that our
Nation’s commitment to due process is most
severely tested; and it is in those times that we
must preserve our commitment at home to the
principles for which we fight abroad. . . .
We therefore hold that a citizen-detainee seeking

to challenge his classification as an enemy
combatant must receive notice of the factual basis
for his classification, and a fair opportunity to
rebut the Government’s factual assertions before a
neutral decisionmaker. These essential
constitutional promises may not be eroded.
At the same time, the exigencies of the

circumstances may demand that, aside from these
core elements, enemy combatant proceedings may
be tailored to alleviate their uncommon potential
to burden the Executive at a time of ongoing
military conflict. . . . [T]he Constitution would not
be offended, [for example], by a presumption in
favor of the Government’s evidence, so long as
that presumption remained a rebuttable one and
fair opportunity for rebuttal were provided. Thus,
once the Government puts forth credible evidence
that the habeas petitioner meets the enemy
combatant criteria, the onus could shift to the
petitioner to rebut that evidence with more
persuasive evidence that he falls outside the
criteria. A burden-shifting scheme of this sort
would meet the goal of ensuring that the errant
tourist, embedded journalist, or local aid worker
has a chance to prove military error while giving
due regard to the Executive once it has put forth
meaningful support for its conclusion that the
detainee is in fact an enemy combatant. . . .
We think it unlikely that this basic process will

have the dire impact on the central functions of
warmaking that the Government forecasts. The
parties agree that initial captures on the
battlefield need not receive the process we have
discussed here; that process is due only when the
determination is made to continue to hold those
who have been seized. . . . While we accord the
greatest respect and consideration to the
judgments of military authorities in matters
relating to the actual prosecution of a war, and
recognize that the scope of that discretion
necessarily is wide, it does not infringe on the
core role of the military for the courts to exercise
their own time-honored and constitutionally
mandated roles of reviewing and resolving claims
like those presented here. . . .
In so holding, we necessarily reject the

Government’s assertion that separation of powers
principles mandate a heavily circumscribed role
for the courts in such circumstances. Indeed, the
position that the courts must forgo any
examination of the individual case and focus
exclusively on the legality of the broader detention
scheme cannot be mandated by any reasonable
view of separation of powers, as this approach
serves only to condense power into a single
branch of government. We have long since made
clear that a state of war is not a blank check for
the President when it comes to the rights of the
Nation’s citizens. . . . Likewise, we have made
clear that, unless Congress acts to suspend it, the
Great Writ of habeas corpus allows the Judicial
Branch to play a necessary role in maintaining this
delicate balance of governance, serving as an
important judicial check on the Executive’s
discretion in the realm of detentions. . . .
. . . Plainly, the “process” Hamdi has received is

not that to which he is entitled under the Due
Process Clause.
There remains the possibility that the standards

we have articulated could be met by an
appropriately authorized and properly constituted
military tribunal. . . .
Hamdi asks us to hold that the Fourth Circuit also

erred by denying him immediate access to counsel
upon his detention and by disposing of the case
without permitting him to meet with an attorney.
Since our grant of certiorari in this case, Hamdi
has been appointed counsel, with whom he has
met for consultation purposes on several
occasions, and with whom he is now being granted
unmonitored meetings. He unquestionably has the
right to access to counsel in connection with the
proceedings on remand. No further consideration
of this issue is necessary at this stage of the case.
The judgment of the United States Court of

Appeals for the Fourth Circuit is vacated, and the
case is remanded for further proceedings.
It is so ordered.

JUSTICE GINSBURG joins,
concurring in part, dissenting
in part, and concurring in the
judgment.
The threshold issue is how broadly or narrowly to
read §4001(a), . . . the tone of which is severe: “No
citizen shall be imprisoned or otherwise detained
by the United States except pursuant to an Act of
Congress.” . . . The fact that Congress intended to
guard against a repetition of the World War II
internments when it . . . gave us §4001(a) provides
a powerful reason to think that §4001(a) was
meant to require clear congressional authorization
before any citizen can be placed in a cell. . . .
Under this principle of reading §4001(a) robustly

to require a clear statement of authorization to
detain, [the government’s arguments do not]
suffice to justify Hamdi’s detention. . . .
Since the [AUMF] was adopted one week after the

attacks of September 11, 2001, it naturally speaks
with some generality, but its focus is clear, and
that is on the use of military power. [It] never so
much as uses the word detention, and there is no
reason to think Congress might have perceived
any need to augment Executive power to deal with
dangerous citizens within the United States, given
the well-stocked statutory arsenal of defined
criminal offenses covering the gamut of actions
that a citizen sympathetic to terrorists might
commit. . . .
Because I find Hamdi’s detention . . . unauthorized

by the Force Resolution, I would not reach any
questions of what process he may be due in
litigating disputed issues in a proceeding under
the habeas statute or prior to the habeas enquiry
itself. For me, it suffices that the Government has
failed to justify holding him in the absence of a
further Act of Congress, criminal charges, [or] a
showing that the detention conforms to the laws of
war. . . .
Since this disposition does not command a

majority of the Court, however, the need to give
practical effect to the conclusions of eight
members of the Court rejecting the Government’s
position calls for me to join with the plurality in
ordering remand on terms closest to those I would
impose. Although I think litigation of Hamdi’s
status as an enemy combatant is unnecessary, the
terms of the plurality’s remand will allow Hamdi
to offer evidence that he is not an enemy
combatant, and he should at the least have the
benefit of that opportunity. . . .
Subject to these qualifications, I join with the

plurality in a judgment of the Court vacating the
Fourth Circuit’s judgment and remanding the
case.

JUSTICE STEVENS joins,
dissenting.
This case brings into conflict the competing
demands of national security and our citizens’
constitutional right to personal liberty. Although I
share the Court’s evident unease as it seeks to
reconcile the two, I do not agree with its
resolution.
Where the Government accuses a citizen of

waging war against it, our constitutional tradition
has been to prosecute him in federal court for
treason or some other crime. Where the
exigencies of war prevent that, the Constitution’s
Suspension Clause, Art. I, §9, c1.2, allows
Congress to relax the usual protections
temporarily. Absent suspension, however, the
Executive’s assertion of military exigency has not
been thought sufficient to permit detention
without charge. No one contends that the
congressional Authorization for Use of Military
Force, on which the Government relies to justify
its actions here, is an implementation of the
Suspension Clause. Accordingly, I would reverse
the decision below. . . .
JUSTICE O’CONNOR, writing for a plurality of this

Court, asserts that captured enemy combatants
(other than those suspected of war crimes) have
traditionally been detained until the cessation of
hostilities and then released. That is probably an
accurate description of wartime practice with
respect to enemy aliens. The tradition with
respect to American citizens, however, has been
quite different. Citizens aiding the enemy have
been treated as traitors subject to the criminal
process. . . .
. . . [T]he reasoning and conclusion of [Ex parte]

Milligan logically cover the present case. The
Government justifies imprisonment of Hamdi on
principles of the law of war and admits that,
absent the war, it would have no such authority.
But if the law of war cannot be applied to citizens
where courts are open, then Hamdi’s
imprisonment without criminal trial is no less
unlawful than Milligan’s trial by military tribunal. .
..
Hamdi is entitled to a habeas decree requiring his

release unless (1) criminal proceedings are
promptly brought, or (2) Congress has suspended
the writ of habeas corpus. A suspension of the writ
could, of course, lay down conditions for
continued detention, similar to those that today’s
opinion prescribes under the Due Process Clause.
But there is a world of difference between the
people’s representatives’ determining the need for
that suspension (and prescribing the conditions
for it), and this Court’s doing so.
The plurality finds justification for Hamdi’s

imprisonment in the Authorization for Use of
Military Force. . . .
This is not remotely a congressional suspension of
the writ, and no one claims that it is. . . . The
Suspension Clause of the Constitution, which
carefully circumscribes the conditions under
which the writ can be withheld, would be a sham
if it could be evaded by congressional prescription
of requirements other than the common-law
requirement of committal for criminal prosecution
that render the writ, though available, unavailing.
If the Suspension Clause does not guarantee the
citizen that he will either be tried or released,
unless the conditions for suspending the writ exist
and the grave action of suspending the writ has
been taken; if it merely guarantees the citizen that
he will not be detained unless Congress by
ordinary legislation says he can be detained; it
guarantees him very little indeed. . . .
Several limitations give my views in this matter a

relatively narrow compass. They apply only to
citizens, accused of being enemy combatants, who
are detained within the territorial jurisdiction of a
federal court. This is not likely to be a numerous
group. . . . Where the citizen is captured outside
and held outside the United States, the
constitutional requirements may be different.
Moreover, even within the United States, the
accused citizen-enemy combatant may lawfully be
detained once prosecution is in progress or in
contemplation. . . .
I frankly do not know whether these tools are

sufficient to meet the Government’s security
needs, including the need to obtain intelligence
through interrogation. It is far beyond my
competence, or the Court’s competence, to
determine that. But it is not beyond Congress’s. If
the situation demands it, the Executive can ask
Congress to authorize suspension of the writ—
which can be made subject to whatever conditions
Congress deems appropriate, including even the
procedural novelties invented by the plurality
today. To be sure, suspension is limited by the
Constitution to cases of rebellion or invasion. But
whether the attacks of September 11, 2001,
constitute an “invasion,” and whether those
attacks still justify suspension several years later,
are questions for Congress rather than this Court.
If civil rights are to be curtailed during wartime, it
must be done openly and democratically, as the
Constitution requires, rather than by silent
erosion through an opinion of this Court. . . .
Many think it not only inevitable but entirely

proper that liberty give way to security in times of
national crisis—that, at the extremes of military
exigency, inter arma silent leges. Whatever the
general merits of the view that war silences law or
modulates its voice, that view has no place in the
interpretation and application of a Constitution
designed precisely to confront war and, in a
manner that accords with democratic principles,
to accommodate it. Because the Court has
proceeded to meet the current emergency in a
manner the Constitution does not envision, I
respectfully dissent.
JUSTICE THOMAS, dissenting.

The Executive Branch, acting pursuant to the
powers vested in the President by the Constitution
and with explicit congressional approval, has
determined that Yaser Hamdi is an enemy
combatant and should be detained. This detention
falls squarely within the Federal Government’s
war powers, and we lack the expertise and
capacity to second guess that decision. As such,
petitioners’ habeas challenge should fail, and
there is no reason to remand the case. The
plurality reaches a contrary conclusion by failing
adequately to consider basic principles of the
constitutional structure as it relates to national
security and foreign affairs. . . .
I do not think that the Federal Government’s war

powers can be balanced away by this Court.
Arguably, Congress could provide for additional
procedural protections, but until it does, we have
no right to insist upon them. But even if I were to
agree with the general approach the plurality
takes, I could not accept the particulars. The
plurality utterly fails to account for the
Government’s compelling interests and for our
own institutional inability to weigh competing
concerns correctly. I respectfully dissent.
Note that Justice Sandra Day O’Connor, writing for

Chief Justice Rehnquist and Justices Kennedy and
Breyer in Hamdi, refused to rely on the
administration’s claim of inherent executive powers,
holding instead that the AUMF authorized the
detention of enemy combatants (even if they were
U.S. citizens). She reasoned that because the
justification for detention is to prevent hostile
combatants from returning to the battlefield,
detention powers were necessary and appropriate to
fight the war, and were implied under the AUMF.
Justice Clarence Thomas agreed that the
government could detain Hamdi, but on different
grounds. He was the only member of the Court who
seemed to endorse the president’s view that, as
president, he had inherent authority to detain
enemies. To Thomas, the detention power “falls
squarely within the Federal Government’s war
powers.”
Four justices voted for Hamdi on the detention issue,

but for different reasons. Justices David Souter and
Ruth Bader Ginsburg believed the AUMF had not
authorized the detentions. To support their position,
they turned to §4001(a), which, recall, provides that
“no citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an
Act of Congress.” To Souter and Ginsburg, the
AUMF “never so much as uses the word detention,”
much less authorizes them. Scalia and Stevens
agreed but believed the problem was even broader.
They argued that the government can detain citizens
only through the criminal justice system or by
suspending the writ of habeas corpus, which the
AUMF had not done.
Although the justices divided over Hamdi’s

detention, they were nearly unanimous in their belief
that “a state of war is not a blank check for the
President when it comes to the rights of the Nation’s
citizens.” They ruled that even though the
government could detain Hamdi as an enemy
combatant, he was entitled to challenge his
classification and to be afforded “a fair opportunity
to rebut the Government’s factual assertions before
a neutral decisionmaker.” But Hamdi never received
that opportunity. Following the Court’s decision, his
lawyers and the government reached an agreement
that allowed him to return to Saudi Arabia in
exchange for renouncing his American citizenship.
Hamdi answered questions about the rights of U.S.

citizens who are captured during military conflict,
but it did not address similar issues with respect to
noncitizens. The justices considered this aspect of
the president’s war powers in Rasul v. Bush (2004),
decided the same day as Hamdi. Rasul centered on
the status of some six hundred men who had been
captured during hostilities in Afghanistan and
transported to Guantanamo. The prisoners were
detained without formal charges and without access
to courts or attorneys. The relatives of two
Australians and twelve Kuwaitis filed habeas corpus
petitions on the detainees’ behalf claiming they were
illegally incarcerated. The lower federal courts
dismissed these lawsuits, holding that the federal
courts have no jurisdiction outside the United States.
The relatives of the detainees requested Supreme
Court review.
A six-justice majority reversed, ruling that U.S. law

confers jurisdiction on the federal courts over such
habeas corpus petitions. Federal authority extends to
areas under the control of the United States, such as
the Guantanamo naval base, as well as to the
military custodians of the detainees. Under the
Court’s decision, incarcerated captives, whether
American citizens or aliens, have the right to
challenge their imprisonment in federal court.
The decision in Rasul was based on an interpretation

of federal statutes, not on the Constitution. The
ruling is important, however, because it allows
access to the courts where the constitutional validity
of the detainees’ continued imprisonment may be
challenged.
Hamdi and Rasul dealt with the government’s power

to detain suspected terrorists and limit challenges in
the federal courts to their detention. But they were
not the Court’s last words on the executive power in
the war against terrorism. Just as Lincoln and
Roosevelt resorted to military tribunals or
commissions, so too did President Bush. And just as
during those earlier wartime administrations—recall
Milligan and Quirin—the president’s actions were
challenged. In Hamdan v. Rumsfeld (2006) the Court
considered the order issued by President Bush that
subjected “enemy combatants” to military
commissions.
Justice Stevens, writing for the majority, outlawed

the use of these commissions, reiterating the view
that even during wars the “Executive is bound to
comply with the Rule of Law.”22 The Court did not,
however, entirely shut the door. Part of the majority’s
concern about the commissions was that Congress
had not authorized them. But under the Court’s
ruling, as Justice Breyer noted, “[n]othing prevents
the President from returning to Congress to seek the
authority he believes necessary.” And, in fact, the
administration took that step—with success. Within
months of the Court’s decision in Hamdan, Congress
passed the Military Commissions Act (MCA), which
authorized the use of military commissions for trying
suspected terrorists and denied federal courts
jurisdiction to hear the detainees’ habeas corpus
applications.
22 In addition to the issue of the constitutionality of

the military commissions, Hamdan raised a
jurisdictional issue. Shortly after the Court agreed to
hear Hamdan, on December 30, 2005, Congress
enacted the Detainee Treatment Act (DTA), which
said that “no court, justice, or judge shall have
jurisdiction to hear or consider” habeas corpus
petitions filed by Guantanamo detainees. Although
the act was silent about pending cases, the Bush
administration believed that it removed the Supreme
Court’s jurisdiction to resolve Hamdan’s suit.
Accordingly, the administration asked the justices to
dismiss the writ of certiorari. In light of the
government’s request, some commentators thought
that Hamdan presented an opportunity for the Court
to clarify its ruling in Ex parte McCardle (excerpted
in Chapter 2) and, more generally, the appropriate
reading of the exceptions clause. But Justice
Stevens, writing for himself and Justices Breyer,
Ginsburg, Kennedy, and Souter, said that it was
“unnecessary” to consider the various constitutional
arguments about McCardle and the exceptions
clause because the DTA did not expressly cover
pending cases. Justices Scalia and Alito, in contrast,
believed that Congress had taken away the Court’s
jurisdiction to hear the case.
Based in part on their review of the history and

origins of the writ of habeas corpus, the justices
struck down parts of the law in Boumediene v.
Bush (2008). In a closely divided vote, they held that
the Guantanamo Bay detainees have a right to
challenge their imprisonment in the federal courts.
Writing for the majority, Justice Kennedy declared,
“The laws and Constitution are designed to survive,
and remain in force, in extraordinary times. Liberty
and security can be reconciled; and in our system
they are reconciled within the framework of the law.
The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a
part of that law.” He held that “if the privilege of
habeas corpus is to be denied to the detainees now
before us, Congress must act in accordance with the
requirements of the Suspension Clause.” In the view
of the majority, the procedures outlined in the DTA
did not provide an adequate substitute for the
“privilege” of habeas corpus.
The four dissenters objected strongly to Kennedy’s

analysis. Justice Scalia wrote, “The game of bait-and-
switch that today’s opinion plays upon the Nation’s
Commander in Chief will make the war harder on us.
It will almost certainly cause more Americans to be
killed.” President Bush remarked that his
administration would “abide by the Court’s
decision,” but he did not agree with it.
What are the lessons of Hamdi, Rasul, Hamdan, and

Boumediene—all four of which the executive lost in
part or in full? Are they in line with other cases you
have read in this chapter? Is the central idea one
that follows from Jackson’s concurrence in
Youngstown, that in the interest of the nation’s
security, the justices may be willing to allow the
president to take actions during times of war that
they would otherwise prohibit, if he has the backing
of Congress? If so, do you agree that this is the
appropriate way for the justices to proceed? On one
hand, why would legislative approval be so
important if the president believes he is acting in the
country’s best interest? On the other, should the
Court allow the president, even with Congress’s
support, to curtail rights and liberties? Keep in mind
that in Boumediene, the Court took the position that
it should not: Congress had approved of the
detentions, but the Court still ruled against the
executive.
President Bush, of course, was not the last president

to claim broad constitutional authority for the
executive in such circumstances. His successor,
Barack Obama, continued to assert authority to
detain terrorist suspects who “substantially
supported terrorist organizations.” And although
Obama’s Justice Department dropped the term
enemy combatant, President Trump restored it,
tweeting that “building a great Border Wall, with
drugs (poison) and enemy combatants pouring into
our Country, is all about National Defense.”23
23 @realDonaldTrump, March 25, 2018.
In 2017 Trump also took the step of issuing a

proclamation (a type of directive) titled “Enhancing
Vetting Capabilities and Processes for Detecting
Attempted Entry Into the United States by Terrorists
or Other Public-Safety Threats.” As its name
suggests, the proclamation restricted people from
eight countries from entering the United States. The
eight countries—Chad, Iran, Iraq, Libya, North
Korea, Syria, Venezuela, and Yemen—according to
the president, had inadequate systems for managing
and sharing information about their nationals.
Trump claimed that he had authority to issue the

directive under the Immigration and Nationality Act
(INA), which authorizes the president to restrict the
entry of aliens whenever he finds that their entry
“would be detrimental to the interests of the United
States.” In Trump v. Hawaii (2018) (the travel ban
case), the state of Hawaii and the Muslim
Association of Hawaii, among others, argued that the
directive violated the INA. They also claimed that
the directive violated the religious establishment
clause of the First Amendment because most of the
countries covered by the proclamation have Muslim-
majority populations. They argued that the president
singled out Muslims for disfavored treatment, and
they used Trump’s own public statements to back up
their claim.
Writing for a 5–4 Court, Chief Justice Roberts held

for the president. He found, first, that the directive
falls “squarely within the scope of Presidential
authority under the INA.” “By its plain language,”
the chief justice wrote, the INA “grants the
President broad discretion to suspend the entry of
aliens into the United States.” Second, out of a belief
that “judicial inquiry into the national-security realm
raises concerns for the separation of powers by
intruding on the President’s constitutional
responsibilities in the area of foreign affairs,”
Roberts applied a very deferential standard of
review to evaluate the religious establishment claim.
It could only succeed, he wrote, if the proclamation
lacked “any purpose other than a ‘bare . . . desire to
harm a politically unpopular group.’” But, to the
majority, it did have other purposes—legitimate
purposes grounded in “national security concerns,
quite apart from any religious hostility.”
Justice Sonia Sotomayor, in dissent, vehemently

disagreed, comparing the majority’s holding to that
of Korematsu v. United States (1944):
In Korematsu, the Court gave “a pass [to] an
odious, gravely injurious racial classification”
authorized by an executive order. As here, the
Government invoked an ill-defined national-
security threat to justify an exclusionary policy
of sweeping proportion. As here, the exclusion
order was rooted in dangerous stereotypes about
a particular group’s supposed inability to
assimilate and desire to harm the United States.
. . . And as here, there was strong evidence that
impermissible hostility and animus motivated the
Government’s policy. . . .
Roberts did not let Sotomayor’s claim go

unaddressed:
Whatever rhetorical advantage the dissent may

see in [invoking Korematsu], Korematsu has
nothing to do with this case. The forcible
relocation of U.S. citizens to concentration
camps, solely and explicitly on the basis of race,
is objectively unlawful and outside the scope of
Presidential authority. But it is wholly inapt to
liken that morally repugnant order to a facially
neutral policy denying certain foreign nationals
the privilege of admission. The entry suspension
is an act that is well within executive authority
and could have been taken by any other
President—the only question is evaluating the
actions of this particular President in
promulgating an otherwise valid Proclamation.
As we noted earlier, Roberts concluded by overruling

Korematsu, a step that Sotomayor approved but, she
wrote, one that “does not make the majority’s
decision here acceptable or right. . . . [It] merely
replaces one ‘gravely wrong’ decision with another.”
Trump v. Hawaii will not be the last word on the

constitutionality of government actions in wartime
and over foreign affairs, nor will it be the last time
the Court debates these matters. Just as authority
over external relations presents an invitation to
struggle between the president and Congress, it also
has generated differences of opinion, to say the
least, among the justices over their appropriate role.
Annotated Readings
Books on the domestic context of separation of
powers problems include Sotirios A. Barber, The
Constitution and the Delegation of Congressional
Power (Chicago: University of Chicago Press, 1975);
Barbara H. Craig, Chadha: The Story of an Epic
Constitutional Struggle (New York: Oxford
University Press, 1988); and Jessica Korn, The Power
of Separation: American Constitutionalism and the
Myth of Legislative Veto (Princeton, NJ: Princeton
University Press, 1998).
Books on foreign policy and war include Howard
Ball, Bush, the Detainees, and the Constitution: The
Battle over Presidential Power in the War on
Terrorism (Lawrence: University Press of Kansas,
2007); John Hart Ely, War and Responsibility:
Constitutional Lessons of Vietnam and Its Aftermath
Louis Fisher, Nazi Saboteurs on Trial: A Military
Tribunal and American Law (Lawrence: University
Press of Kansas, 2003); Louis Fisher, Presidential
War Power, 2nd ed. (Lawrence: University Press of
Kansas, 2004); Louis Henkin, Foreign Affairs and the
Constitution (New York: Oxford University Press,
1996); Peter Irons, Justice at War: The Story of the
Japanese American Internment Cases (New York:
Oxford University Press, 1983); Elizabeth D.
Leonard, Lincoln’s Avengers: Justice, Revenge, and
Reunion after the Civil War (New York: W. W. Norton,
2004); Maeva Marcus, Truman and the Steel Seizure
Case: The Limits of Presidential Power (Durham, NC:
Duke University Press, 1994); Scott M. Matheson,
Presidential Constitutionalism in Perilous Times
Christopher May, In the Name of War: Judicial
Review and the War Powers since 1918 (Cambridge,
MA: Harvard University Press, 1989); Brian McGinty,
Lincoln and the Court (Cambridge, MA: Harvard
University Press, 2008); Eric A. Posner and Adrian
Vermeule, Terror in the Balance: Security, Liberty,
and the Courts (New York: Oxford University Press,
2007); William H. Rehnquist, All the Laws but One:
Civil Liberties in Wartime (New York: Knopf, 1998);
W. Taylor Reveley III, War Powers of the President
and Congress (Charlottesville: University of Virginia
Press, 1981); Martin S. Sheffer, The Judicial
Development of Presidential War Powers (Westport,
CT: Praeger, 1999); Gordon Silverstein, Imbalance of
Powers: Constitutional Interpretation and the
Making of American Foreign Policy (New York:
Oxford University Press, 1996); and Geoffrey R.
Stone, War and Liberty: An American Dilemma (New
York: W. W. Norton, 2007).
For works on the writ of habeas corpus, see Eric M.

Freedman, Habeas Corpus: Rethinking the Great
Writ of Liberty (New York: New York University
Press, 2003); Nancy J. King and Joseph L. Hoffmann,
Habeas for the Twenty-first Century: Uses, Abuses,
and the Future of the Great Writ (Chicago:
University of Chicago Press, 2011); and Justin J.
Wert, Habeas Corpus in America: The Politics of
Individual Rights (Lawrence: University Press of
Kansas, 2011).
Part Three Nation-State
Relations
Allocating Government Power
6. FEDERALISM
7. THE COMMERCE POWER
8. THE POWER TO TAX AND SPEND
Allocating Government
Power
IF WE WERE TO CATALOG the types of

governments that exist in the world today, we would
have a fairly diverse list. Some are unitary systems
in which power is located in a central authority that
may or may not mete out power to its subdivisions.
Others are virtually the opposite, with authority
resting largely in local governments and only certain
powers reserved to national authority. When the
framers drafted the Constitution, they had to make
some basic decisions about the allocation of
government power between the states and the
national government they were creating. Their
choice, generally speaking, was federalism: a system
in which “a constitution divides governmental power
between a central government and one or more
subdivisional governments, giving each substantial
functions.”1
1 J. W. Peltason, Corwin and Peltason’s

Understanding the Constitution, 14th ed. (Fort
Worth, TX: Harcourt Brace, 1997), 17. See also J. W.
Peltason and Sue Davis, Corwin and Peltason’s
Understanding the Constitution, 15th ed. (Fort
Worth, TX: Harcourt Brace, 2000), chap. 1.
That decision turned out to be a good one, and we
reap the advantages of it today. For example,
because the government is multilayered, Americans
have many points of access to influence the system.
If your state enacts legislation you do not like, you
might find grounds to challenge it in federal court or
lobby your representative in Congress urging federal
action to counter it. You could even “vote with your
feet” and move to a state that has laws you prefer.
Moreover, the system provides for further checks on
the exercise of government power because federal,
state, and even local systems are all involved in
policy making. Finally, it encourages
experimentation and provides for flexibility. Justice
Louis D. Brandeis once wrote, “It is one of the happy
incidents of the federal system that a single
courageous State may, if its citizens choose, serve as
a laboratory; and try novel social and economic
experiments without risk to the rest of the country.”2
Because of their proximity to many problems, state
and local governments may be better positioned to
fashion effective public policy than is the federal
government. If successful, such policy innovations
may be copied in other states or even adopted
nationwide. The states were first to implement
tougher laws to discourage drunk driving, policies to
protect workers’ rights, welfare reforms, and so
forth. Other problems, such as those associated with
foreign policy, are better left to the national
government, which can act in behalf of the entire
country.
2 Dissent in New State Ice Co. v. Liebmann, 285 U.S.
262 at 311 (1932).
But federalism is not perfect. It can add considerable

inefficiency to government operations. The
implementation of certain kinds of policies might
require the coordination of the national government,
fifty state governments, and numerous subdivisions,
which inevitably slows down the process.
For our purposes, the most relevant concern about

federalism is its complexity. It is quite difficult for
citizens to keep abreast of such a decentralized
system. People may not understand which level of
government makes specific policies. In addition,
government may seem so remote to some citizens
that they may not even know the names of their
representatives. At the other end of the spectrum,
governments sometimes do not understand or abide
by the boundaries of their own power. American
history is full of examples of allegations by states
that the federal government has gone too far in
regulating “their” business; indeed, this was one
issue over which the Civil War, the most extreme
disagreement, was fought.
Yet, in most circumstances, it is neither war that has

resolved these disputes nor the entities themselves
that have shed light on their complexities. Rather,
since the nation’s founding, the U.S. Supreme Court
has played a substantial role in delineating and
defining the contours of American federalism. The
chapters that follow discuss why and how the Court
has done so. Chapter 6 focuses on the various
theories of federal–state relations with which the
Court has dealt. Chapters 7 and 8 consider the
exercise of government power over the most
contentious issues: the regulation of commerce and
the power to tax and spend.
But first, we explore several issues emanating from

our discussion so far: the kind of system the framers
adopted, the amending of that system, and its
complexity, which often leads to the involvement of
“neutral” arbiters—judges and Supreme Court
justices.
The Framers and Federalism

We have already mentioned that the framers
selected federalism from among several alternative
forms of government, although the word federalism
does not appear in the Constitution. The founders
had some general vision of the sort of government
they wanted or, more to the point, the sort they did
not want. They rejected a unitary system as wholly
incompatible with basic values and traditions
already existing within the states. They also rejected
a confederation in which power would reside with
the states; after all, that is what they had under the
Articles of Confederation, the charter they came to
Philadelphia to revise.
How to divide power, then, became the delegates’
central concern. In the end, they wrote into the
document a rather elaborate “pattern of allocation.”
What does this system look like? In other words, who
gets what? Table III-1 depicts the allocation of
powers emanating from the Constitution. As we can
see, the different levels of government have some
exclusive and some concurrent powers, but they are
also prohibited from operating in certain spheres.
Table III-I
Sources: Adapted from J. W. Peltason, Corwin and

Peltason’s Understanding the Constitution, 14th ed.
(Fort Worth, TX: Harcourt Brace, 1997), 20–22; and C.
Herman Pritchett, Constitutional Law of the Federal
System (Englewood Cliffs, NJ: Prentice Hall, 1984), 58.
Despite the framers’ attempt to allocate power,

ambiguity resulted. One source of confusion was the
question of constitutional relationships; that is, in
the parlance of the eighteenth century, the framers
looked at the Constitution as a contract, but a
contract between whom? Some commentators argue
that it specifies the relationship between the people
and the national government, and that the former
empower the latter. Justice Joseph Story wrote,
The constitution of the United States was

ordained and established, not by the states in
their sovereign capacities, but emphatically, as
the preamble of the constitution declares, by
“the people of the United States.” . . . The
constitution was not, therefore, necessarily
carved out of existing state sovereignties, nor a
surrender of powers already existing in state
institutions.3
3 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304

at 324–325 (1816).
Others suggest that the contract is between the

states and the nation. In a 1798 resolution of the
Virginia Assembly, James Madison wrote,
That this Assembly doth explicitly and
peremptorily declare that it views the powers of
the Federal Government as resulting from the
compact, to which the States are parties, as
limited by the plain sense and intention of the
instrument constituting that compact; as no
further valid than they are authorized by the
grants enumerated in that compact; and that in
case of deliberate, palpable, and dangerous
exercise of other powers not granted by the said
compact, the States, who are the parties thereto,
have the right, and are in duty bound, to
interpose for arresting the progress of the evil,
and for maintaining within their respective
limits, the authorities, rights, and liberties
appertaining to them.4
4 Reprinted in Urofsky, Documents of American

Constitutional and Legal History, 159.
This debate is not abstract: it has real consequences.

In its most violent incarnation, the Civil War,
Southern leaders took Madison’s logic to its limit.
They argued that the Constitution represented a
contract between the states and the federal
government, with the states creating the national
government. When the federal government—
controlled by the Northern states—abrogated its end
of the agreement, the contract was no longer valid.
The Civil War ended that particular dispute, but the
principle continued to flare up in less extreme but
important forms. The history of some Southern
states refusing to abide by federal civil rights laws is
one example.
This problem continues to manifest itself, largely

because the Constitution supports both sides and
therefore neither. Those who favor the national
government–people approach point to the
document’s preamble: “We the people of the United
States . . . do ordain and establish this Constitution
[our italics].” To support the national government–
state argument, proponents turn to the language of
Article VII, that the ratification of nine states “shall
be sufficient for the Establishment of this
Constitution between the States so ratifying [our
italics].” When issues related to the contractual
nature of the Constitution arise, therefore, many
look to the Supreme Court to resolve them. As we
shall see in Chapter 6, different Courts have
approached this debate in varying ways, adopting
one view over the other at distinct points in
American history.
The Tenth and Eleventh

Amendments
Arguments over who the parties to the constitutional
contract are may never be fully resolved, but
another point of ambiguity was thought so onerous
that it could not be left to interpretation. That area is
the balance of power between the states and the
federal government. The original charter, in the view
of some, placed too much authority with the federal
government. In particular, states’ rights advocates
pointed to two clauses in the Constitution as working
against their interests.
The first is the necessary and proper clause:

Congress has the power “To make all Laws which
shall be necessary and proper for carrying into
Execution [its] Powers, and all other Powers vested
by this Constitution in the Government of the United
States, or in any Department or Officer thereof.”
The other is the supremacy clause: “This

Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
These clauses seem to allocate a great deal of power

to the national government. Yet, as Madison wrote in
Federalist No. 45,
The powers delegated by the proposed

Constitution to the Federal Government, are few
and defined. Those which are to remain in the
State Governments are numerous and indefinite.
The former will be exercised principally on
external objects, as war, peace, negotiation, and
foreign commerce; with which last the power of
taxation will for the most part be connected. The
powers reserved to the several States will extend
to all the objects, which, in the ordinary course
of affairs, concern the lives, liberties and
properties of the people; and the internal order,
improvement, and prosperity of the State.
Nevertheless, states remained concerned that the

national government would attempt to cut into their
power and sovereignty, and the language of the
Constitution did little to allay their fears. At worst, it
suggested that the federal institutions would always
be supreme; at best, it was highly ambiguous. Even
Madison recognized its lack of clarity when he wrote
in Federalist No. 39,
The proposed Constitution therefore . . . is in

strictness neither a national nor a federal
Constitution; but a composition of both. In its
foundation it is federal, not national; in the
sources from which the ordinary powers of the
Government are drawn, it is partly federal, and
partly national: in the operation of these powers,
it is national, not federal. In the extent of them,
again, it is federal; not national: And finally in
the authoritative mode of introducing
amendments, it is neither wholly federal, nor
wholly national.
Madison clearly thought this ambiguity was an asset
of the new system of government, an advantage that
made it fit compatibly into the overall philosophies of
separation of powers and checks and balances. But
this argument proved insufficient; when the
perceived unfair balance of power proved to be an
obstacle to the ratification of the Constitution, those
favoring its adoption promised to remedy it.
This remedy took the form of the Tenth Amendment,

which—depending on the interpretation—seems
quite different from the rest of the Bill of Rights. The
first nine amendments deal mainly with the rights of
the people vis-à-vis the federal government, such as
the First Amendment: “Congress shall make no law
respecting an establishment of religion.” But the
Tenth Amendment states, “The powers not delegated
to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the
States respectively, or to the people.” With these
words in place, states’ rights advocates were
mollified, at least temporarily. To be sure, some
understood the Tenth Amendment to do little more
than to affirm that the Constitution created a
national government limited to its “delegated”
powers. In the view of some states’ rights advocates,
however, the amendment established the rights of
states, creating a protected area—an enclave—for
state power.5
5 For more on the Tenth Amendment as an enclave,

see Martin H. Redish, The Constitution as Political
Structure (New York: Oxford University Press,
1995). Redish rejects this interpretation of the
amendment.
We will have many opportunities to explore this

debate in the chapters to come. For now, it is worth
noting that supporters of state authority quickly
learned that the Tenth Amendment did not offer the
states complete protection against federal
encroachment. Just three years after the amendment
was ratified, the Supreme Court in Chisholm v.
Georgia (1793) upheld the authority of the federal
courts to hear cases brought against a state by
citizens of another state. The idea that the fortunes
of a state could be decided by a federal tribunal was
unacceptable to state power advocates. They
demanded constitutional protection against such
intrusions. The result was the Eleventh Amendment,
ratified in 1795, which restricted the power of the
federal courts to hear disputes brought against a
state by the citizens of another state or by citizens of
other nations. As history would quickly show,
however, neither the Tenth nor the Eleventh
Amendment settled the perennial question of the
proper distribution of political power between the
federal government and the states.
Why not? Given the elaborate system of American

federalism depicted in Table III-1, why is the division
of power the center of so much controversy? In part,
the answer takes us back to the contractual nature
of the Constitution. As we shall see in Chapter 6,
which explores general theoretical approaches to
federalism, the Court has had some difficulty
determining the parties to the contract, and its
confusion encouraged litigation. In more concrete
terms, no matter how elaborate the design, the
contract does not (and perhaps cannot) address the
range of real disputes that arise between nation and
state.
Indeed, the irony here is that the complexity of the

system, coupled with the language of the
Constitution, is what fosters the need for
interpretation. We often must ask, Where do state
powers begin and federal powers end, and vice
versa? States have the authority to regulate
intrastate commerce, and the federal government
regulates interstate commerce, but is it so easy to
delineate those boundaries? Which entity controls
the manufacturing of goods in one state that are
shipped to another? And, more to the point, what
happens when the state and federal governments
have different ideas regarding how to regulate the
manufacturing?
If that problem is not enough, compare the

constitutional language of the Tenth Amendment
with that of the necessary and proper and
supremacy clauses. The supremacy clause prohibits
states from passing laws that directly conflict with
the Constitution, federal laws, and so forth. But so
often the issues are not that clear. Is the federal
authority supreme only in its sphere of operations—
those activities where it has clear constitutional
mandates—as some argue the Tenth Amendment
dictates? Or is it the case that every time the federal
government enters into a particular realm, it
automatically preempts the actions of states? Or
does the answer depend on the intent of Congress—
that is, whether it intended to preempt state action?
It should be clear that American federalism is

something of a two-edged sword. On one hand, the
balance of power the framers created pacified those
who were opposed to ratifying the Constitution, and
this balance continues to define the contours of the
U.S. system of government. On the other hand, the
complexity of federalism has given rise to tensions
between the levels of government, often leading to
disputes that require settlement by the courts. It
may be that the system has been resilient because it
constantly requires fresh interpretation. But we will
leave that for you to decide as we now turn to how
the Supreme Court has formulated theories and
specific rulings in response to two distinct but
interrelated issues: the general contours of state–
federal relations and the important powers of
commerce and taxing and spending.
Chapter Six Federalism
DURING THE 1960s Congress amended the Fair

Labor Standards Act (FLSA) of 1938 to require state
governments to pay virtually all their employees a
specified minimum wage and to compensate them
for overtime work. Were these amendments
constitutional? Does Congress have the
constitutional power to dictate to the states how
they should treat their own government employees?
Or does such congressional action interfere with
state authority and autonomy? The answer depends
on how we view the letter and spirit of the
Constitution. We would reach very different
conclusions depending on whether we subscribed to
the dual or cooperative approach to nation–state
relations (see Table 6-1).
Proponents of dual federalism would want the Court

to strike down the law. As advocates of states’ rights,
they would argue that the Constitution represents an
agreement between the states and the federal
government in which the states empower the central
government and that, therefore, states are not
subservient to the federal government. In other
words, because each state is supreme within its own
sphere, the federal government could no more
impose minimum wage requirements on states than
the states could impose them on the federal
government. To support their theory, dual federalists
invoke the Tenth Amendment, arguing that it creates
an “enclave” of states’ rights that Congress may not
invade—especially if Congress encroaches on a
traditional state function.1
1 See Redish, The Constitution as Political Structure.

The idea here is that even if Congress possessed the
power, it would be unable to exercise it if it impinged
on the “enclave.”
Cooperative federalism takes the opposite view.

Proponents argue that the people, not the states,
created and animated the federal government. This
view holds that the supremacy clause and the
necessary and proper clause, not the Tenth
Amendment, control the balance of power between
the federal government and the states. That
amendment, according to cooperative federalism,
grants no additional powers to the states. It serves
only to emphasize that the federal government is
limited to the powers the Constitution assigns to it.
As long as Congress bases the law regulating wages
and hours on an enumerated (or implied) power, the
law passes constitutional muster. The Tenth
Amendment creates no bar, or so the argument goes.
The history of nation–state relations issues before

the Supreme Court has been characterized by
swings back and forth between variants of
cooperative federalism and dual federalism. In fact,
a sharply divided Supreme Court voted 5 to 4 to
strike down the amendments to the Fair Labor
Standards Act (FLSA) of 1976. The case was
National League of Cities v. Usery, in which the
majority held that the provisions violated the Tenth
Amendment and were an unconstitutional
interference with states. Just nine years later,
however, in another 5–4 decision, the Court upheld
the maximum hours and minimum wage provisions
of the law in Garcia v. San Antonio Metropolitan
Transit Authority (1985), which effectively overruled
the 1976 decision.
In this chapter we explore three aspects of the

constitutional division of power between the federal
government and the states. First, we examine the
doctrinal cycle of nation–state relations, tracing the
historical swings between cooperative and dual
federalism. Second, we look at the Eleventh
Amendment and the doctrine of sovereign immunity,
which promote the status of the states by shielding
them from lawsuits. We end the chapter with a
discussion of a recurring issue of federalism: What
happens when both the states and the federal
government want to regulate the same activity?
Table 6-1
The Doctrinal Cycle of Nation–

State Relations
The Court’s about-face from National League of
Cities to Garcia is not an anomaly in this area of the
law; rather, it is a symptom of the general confusion
that has surrounded American federalism since the
eighteenth century. As depicted in Table 6-2,
throughout U.S. history the Supreme Court’s
allegiance has shifted from cooperative federalism to
dual federalism (or one of their variants) and back
again. As a consequence the justices have moved
between states’ rights and national supremacy
positions over time.
From our introduction to this part of the book, you

learned that the Tenth Amendment was included in
the Bill of Rights to allay concerns that the national
government would run roughshod over the states.
Vexing from the start, however, has been the
question of how to interpret its words: “The powers
not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”
As the preceding discussion suggests, to dual
federalists it is a states’ rights amendment—one that
creates an enclave that protects states from
unwarranted federal intrusions. To cooperative
federalists, it does little more than confirm that the
Constitution created a federal government limited to
its “delegated” powers. Disputes over these
competing views raise questions that implicate the
very nature of the Constitution.
As we review the doctrinal cycles in the following

pages, we highlight those disputes where a state has
claimed that actions of the federal government
directly impinge on the state’s constitutional
authority or where the federal government had
similar complaints about state actions. In Chapters 7
and 8 we look more specifically at federalism’s
effects by considering the regulation of commerce
and the exercise of the fiscal powers of taxation and
spending. It has been within these policy areas that
some of the most significant federalism battles have
been fought.
The Marshall Court and the Rise

of National Supremacy
An ardent Federalist, Chief Justice John Marshall
was true to his party’s tenets over the course of his
long career on the Court. In case after case (in
particular, Cohens v. Virginia, 1821), he was more
than willing to elevate the powers of the federal
government above those of the states—even when he
knew that some states were questioning the
authority of the Court or failing to respect its
decisions.
Such behavior may not be unusual in new

democracies, as our discussion of the problems of
the Russian Constitutional Court demonstrates (see
Box 6-1). But that did not deter Marshall from
making a number of important statements on
national supremacy—with perhaps the most
significant coming in McCulloch v. Maryland (1819).
In Chapter 3 we saw how Marshall used this case to
assert that Congress has implied powers. Here, we
shall see that McCulloch also served as Marshall’s
vehicle to expound the notion of national supremacy;
note in particular his view of the Tenth Amendment.
We offer a brief review of the essential facts to
remind you of the issues in this case.
Table 6-2
Box 6-1 Federalism and Judicial Power in

Global Perspective
AS OUR DISCUSSIONS of McCulloch v. Maryland

in this chapter and in Chapter 3 illustrate, the
states of the United States zealously guarded their
power from federal encroachment during Chief
Justice Marshall’s tenure. The justices were well
aware of the possibility that at least some states
would disregard their decisions, and, in fact, some
did.
As it turns out, the U.S. Supreme Court is not the

only judicial tribunal to face such challenges.
Quite early in its history, the Russian
Constitutional Court confronted a similar lack of
respect from its country’s republics.
Created in 1991, the Russian court was given

substantial powers, including the ability to review
the constitutionality of all state (republic) actions
(in the absence of a concrete dispute) at the
request of various executive and legislative
bodies. In other words, if a member of Russia’s
parliament or even the president believed that a
republic was violating constitutional mandates, he
or she could bring the claim directly to the court,
which could then issue a ruling.
In March 1992 a group of Russian legislators took

advantage of this right to challenge an action of
Tatarstan, a republic within the Russian
Federation. Specifically, they argued that a
referendum Tatarstan hoped to put to its citizens
was unconstitutional. The referendum asked
whether the citizens agreed or disagreed “that the
Tatarstan Republic is a sovereign state and a party
to international law, basing its relations with the
Russian Federation as partners.”
The justices accepted the case and scheduled

hearings, which Tatarstan officials refused to
attend. After hearing the arguments, the justices
held that, in fact, the referendum violated several
constitutional provisions, especially those
establishing national supremacy: “The denial of
the supremacy of federal laws over the laws of
members of the federation is contrary to the
constitutional status of the republics in a
federated state and precludes the establishment of
a law-governed state.”
When the Tatar government decided to ignore the

ruling, the justices requested that their chair
(chief justice), Valerii Zor’kin, persuade
parliament to seek compliance with their decision.
The parliament issued a resolution that supported
the court’s ruling and requested that the president
enforce it. That was insufficient, however, to deter
Tatarstan from going ahead with its referendum
about a week later, and a majority of the voters
cast ballots in favor of the measure.
To be sure, the U.S. Supreme Court continues to

confront challenges from the states, but blatant
disregard for its decisions is unusual today.
Whether the Russian Constitutional Court will be
able to attain a similar status is a question only
time can answer. As of this writing, however, the
court remains a relatively weak institution. One
dissertation concluded that the court’s authority
has actually decreased over time, “particularly
with the regions in the Russian federal system.”
Sources: Herman Schwartz, The Struggle for

Constitutional Justice in Post-Communist Europe
(Chicago: University of Chicago Press, 2000);
Robert Sharlet, “The Russian Constitutional Court:
The First Term,” Post-Soviet Affairs 9 (1993): 1–
39; Julia Wishnevsky, “Russian Constitutional
Court: A Third Branch of Government?,” RFE/RL
Research Report 2 (1993): 1; Sabrina Lyne Pinnell,
“The Russian Constitutional Court: An Analysis of
Its Evolution within a Developing Federal System”
(PhD dissertation, University of California, Santa
Barbara, 2007).
McCulloch v. Maryland 17 U.S. (4 Wheat.) 316

(1819)
court/17/316.html
Vote: 6 (Duvall, Johnson, Livingston, Marshall,
Story, Washington)

Facts:
Congress established the Second Bank of the
United States in 1816. Because of inefficiency and
corruption, the bank was very unpopular, and
many blamed it for the nation’s economic
problems. To show its displeasure, the Maryland
legislature passed a law saying that banks
operating in the state that were not chartered by
the state—in other words, the national bank—
could issue banknotes only on special paper, which
the state taxed. The Maryland law was clearly a
state attack on an operation of the federal
government. Was it constitutional for the state to
use its authority to block a federal program? This
question became a legal dispute when James
McCulloch, the cashier of the Baltimore branch of
the Bank of the United States, refused to pay the
tax and Maryland took legal action to enforce its
law. The United States challenged the
constitutionality of the Maryland tax, and in return
Maryland disputed the constitutionality of the
bank.2
2 The first part of the opinion deals with the

question of whether Congress had the power to
create the bank. See the excerpt in Chapter 3. The
second part deals with the constitutionality of the
Maryland tax. Marshall clearly delineates this
division.
Arguments:
For the plaintiff in error, James
McCulloch:
The necessary and proper clause justifies the

establishment of the bank. It allows Congress
to use all usual and suitable means of
executing its constitutional powers. Congress
has the power to raise revenue to support the
government, and a bank is a suitable means to
exercise that power.
Under the supremacy clause, the laws of the
United States are supreme and control all state
constitutions and legislation.
Allowing states to tax the bank implicitly allows
them to control the federal government, even
to the point of its destruction. That possibility
was precisely the situation the framers wished
to avoid. They did not intend for the federal
government to operate upon the discretion of
the states.
For the defendant in error, state

of Maryland et al.:
The Tenth Amendment ensures that all powers
not expressly enumerated to the federal
government are reserved to the states. The
federal government has enumerated powers to
collect taxes, borrow money, and pay public
debts, but a bank fulfills none of those ends.
Therefore, it is beyond the scope of
congressional power and is a power reserved
to the states.
This interpretation of the Tenth Amendment is
supported by the history of the Constitution,
which was ratified as a compact between
states, not by the people as one aggregate
mass.
The necessary and proper clause should be
interpreted as a restriction on Congress’s
power to choose the means of executing its
enumerated powers. The framers said
“necessary and proper,” instead of “necessary
or proper,” to avoid granting general and
unlimited discretion to the federal government.
Taxation is an acknowledged power of the
states, and states have sovereign power to tax,
independent of the Constitution. The
Constitution prohibits states only from taxing
imposts or tonnage duties, and therefore
states may tax anything else.
Mr. Chief Justice Marshall Delivered the

The constitution of our country, in its most

interesting and vital parts, is to be considered; the
conflicting powers of the government of the Union
and of its members, as marked in that
constitution, are to be discussed; and an opinion
given, which may essentially influence the great
operations of the government. . . .
In discussing this . . . the counsel for the state of

Maryland have deemed it of some importance, in
the construction of the constitution, to consider
that instrument not as emanating from the people,
but as the act of sovereign and independent
states. The powers of the general government, it
has been said, are delegated by the states, who
alone are truly sovereign; and must be exercised
in subordination to the states, who alone possess
supreme dominion.
It would be difficult to sustain this proposition.

The convention which framed the constitution was
indeed elected by the state legislatures. But the
instrument, when it came from their hands, was a
mere proposal, without obligation, or pretensions
to it. It was reported to the then existing Congress
of the United States, with a request that it might
“be submitted to a convention of delegates,
chosen in each state by the people thereof, under
the recommendation of its legislature, for their
assent and ratification.” This mode of proceeding
was adopted; and by the convention, by Congress,
and by the state legislatures, the instrument was
submitted to the people. They acted upon it in the
only manner in which they can act safely,
effectively, and wisely, on such a subject, by
assembling in convention. It is true, they
assembled in their several states—and where else
should they have assembled? No political dreamer
was ever wild enough to think of breaking down
the lines which separate the states, and of
compounding the American people into one
common mass. Of consequence, when they act,
they act in their states. But the measures they
adopt do not, on that account, cease to be the
measures of the people themselves, or become the
measures of the state governments. . . .
The government of the Union, then . . . is,

emphatically, and truly, a government of the
people. . . .
It is the government of all; its powers are

delegated by all; it represents all, and acts for all.
Though any one state may be willing to control its
operations, no state is willing to allow others to
control them. The nation, on those subjects on
which it can act, must necessarily bind its
component parts. But this question is not left to
mere reason; the people have, in express terms,
decided it by saying, “this constitution, and the
laws of the United States, which shall be made in
pursuance thereof,” “shall be the supreme law of
the land,” and by requiring that the members of
the state legislatures, and the officers of the
executive and judicial departments of the states
shall take the oath of fidelity to it. The government
of the United States, then, though limited in its
powers, is supreme; and its laws, when made in
pursuance of the constitution, form the supreme
law of the land, “anything in the constitution or
laws of any State to the contrary
notwithstanding.”
Among the enumerated powers, we do not find

that of establishing a bank or creating a
corporation. But there is no phrase in the
instrument which, like the articles of
confederation, excludes incidental or implied
powers; and which requires that everything
granted shall be expressly and minutely described.
Even the 10th amendment, which was framed for
the purpose of quieting the excessive jealousies
which had been excited, omits the word
“expressly,” and declares only that the powers
“not delegated to the United States, nor
prohibited to the states, are reserved to the states
or to the people”; thus leaving the question,
whether the particular power which may become
the subject of contest has been delegated to the
one government, or prohibited to the other, to
depend on a fair construction of the whole
instrument. The men who drew and adopted this
amendment had experienced the embarrassments
resulting from the insertion of this word in the
articles of confederation, and probably omitted it
to avoid those embarrassments. A constitution, to
contain an accurate detail of all the subdivisions of
which its great powers will admit, and of all the
means by which they may be carried into
execution, would partake of a prolixity of a legal
code, and could scarcely be embraced by the
human mind. It would probably never be
understood by the public. Its nature, therefore,
requires, that only its great outlines should be
marked, its important objects designated, and the
minor ingredients which compose those objects be
deduced from the nature of the objects
themselves. That this idea was entertained by the
framers of the American constitution, is not only
to be inferred from the nature of the instrument,
but from the language. . . .
After this declaration, it can scarcely be necessary
to say that the existence of state banks can have
no possible influence on the question. No trace is
to be found in the constitution of an intention to
create a dependence of the government of the
Union on those of the states, for the execution of
the great powers assigned to it. Its means are
adequate to its ends; and on those means alone
was it expected to rely for the accomplishment of
its ends. To impose on it the necessity of resorting
to means which it cannot control, which another
government may furnish or withhold, would
render its course precarious; the result of its
measures uncertain, and create a dependence on
other governments, which might disappoint its
most important designs and is incompatible with
the language of the constitution. But were it
otherwise, the choice of means implies a right to
choose a national bank in preference to state
banks, and Congress alone can make the election.
After the most deliberate consideration, it is the

unanimous and decided opinion of this court that
the act to incorporate the bank of the United
States is a law made in pursuance of the
constitution, and is part of the supreme law of the
land. . . .
It being the opinion of the court, that the act

incorporating the bank is constitutional; and that
the power of establishing a branch in the State of
Maryland might be properly exercised by the bank
itself, we proceed to inquire . . . whether the State
of Maryland may, without violating the
constitution, tax that branch? . . .
The argument on the part of the State of
Maryland, is, not that the States may directly
resist a law of Congress, but that they may
exercise their acknowledged powers upon it, and
that the constitution leaves them this right in the
confidence that they will not abuse it.
That the power to tax involves the power to

destroy; that the power to destroy may defeat and
render useless the power to create; that there is a
plain repugnance, in conferring on one
government a power to control the constitutional
measures of another, which other, with respect to
those very measures, is declared to be supreme
over that which exerts the control, are
propositions not to be denied. But all
inconsistencies are to be reconciled by the magic
of the word Confidence. Taxation, it is said, does
not necessarily and unavoidably destroy. To carry
it to the excess of destruction would be an abuse,
to presume which, would banish that confidence
which is essential to all government.
But is this a case of confidence? Would the people

of any one State trust those of another with a
power to control the most insignificant operations
of their State government? We know they would
not. Why, then, should we suppose that the people
of any one State should be willing to trust those of
another with a power to control the operations of
a government to which they have confided their
most important and most valuable interests? In
the legislature of the Union alone, are all
represented. The legislature of the Union alone,
therefore, can be trusted by the people with the
power of controlling measures which concern all,
in the confidence that it will not be abused. This,
then, is not a case of confidence, and we must
consider it as it really is.
If we apply the principle for which the State of

Maryland contends, to the constitution generally,
we shall find it capable of changing totally the
character of that instrument. We shall find it
capable of arresting all the measures of the
government, and of prostrating it at the foot of the
States. The American people have declared their
constitution, and the laws made in pursuance
thereof, to be supreme; but this principle would
transfer the supremacy, in fact, to the States.
If the States may tax one instrument, employed by

the government in the execution of its powers,
they may tax any and every other instrument.
They may tax the mail; they may tax the mint; they
may tax patent rights; they may tax the papers of
the custom-house; they may tax judicial process;
they may tax all the means employed by the
government, to an excess which would defeat all
the ends of government. This was not intended by
the American people. They did not design to make
their government dependent on the States. . . .
It has also been insisted, that, as the power of

taxation in the general and State governments is
acknowledged to be concurrent, every argument
which would sustain the right of the general
government to tax banks chartered by the States,
will equally sustain the right of the States to tax
banks chartered by the general government.
But the two cases are not on the same reason. The
people of all the States have created the general
government, and have conferred upon it the
general power of taxation. The people of all the
States, and the States themselves, are
represented in Congress, and, by their
representatives, exercise this power. When they
tax the chartered institutions of the States, they
tax their constituents; and these taxes must be
uniform. But, when a State taxes the operations of
the government of the United States, it acts upon
institutions created, not by their own constituents,
but by people over whom they claim no control. It
acts upon the measures of a government created
by others as well as themselves, for the benefit of
others in common with themselves. The difference
is that which always exists, and always must exist,
between the action of the whole on a part, and the
action of a part on the whole—between the laws of
a government declared to be supreme, and those
of a government which, when in opposition to
those laws, is not supreme.
But if the full application of this argument could

be admitted, it might bring into question the right
of Congress to tax the State banks, and could not
prove the right of the States to tax the Bank of the
United States.
The court has bestowed on this subject its most

deliberate consideration. The result is a conviction
that the states have no power, by taxation or
otherwise, to retard, impede, burden, or in any
manner control the operations of the
constitutional laws enacted by Congress to carry
into execution the powers vested in the general
government. This is, we think, the unavoidable
consequence of that supremacy which the
constitution has declared.
We are unanimously of opinion that the law passed

by the legislature of Maryland, imposing a tax on
the Bank of the United States, is unconstitutional
and void.
Constitutional scholars regard McCulloch as an

unequivocal statement of national power over the
states. Its strength lies in Marshall’s treatment of
the three relevant constitutional provisions: the
necessary and proper clause, the Tenth Amendment,
and the supremacy clause.
First, as you may recall from Chapter 3, according to

McCulloch the necessary and proper clause permits
Congress to pass legislation implied by its
enumerated functions, bounded chiefly in this way:
“Let the end be legitimate, let it be within the scope
of the constitution, and all means which are
appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional.”3
3 Also recall from the excerpt in Chapter 3 that

Marshall declared, “Should Congress, in the
execution of its powers, adopt measures which are
prohibited by the Constitution, or should Congress,
under the pretext of executing its powers, pass laws
for the accomplishment of objects not intrusted to
the Government, it would become the painful duty of
this tribunal, should a case requiring such a decision
come before it, to say that such an act was not the
law of the land.”
Second, because the Tenth Amendment reserves to

the states or to the people only power that has not
been delegated (expressly or otherwise) to Congress,
it stands as no significant bar to Congress’s exercise
of its powers, including those that are implied. Given
Marshall’s treatment of the necessary and proper
clause, implied powers seem quite expansive. This
also seems to be an explicit rejection of the
“enclave” approach to the Tenth Amendment.
Third, the supremacy clause places the national

government at the top within its sphere of operation,
a sphere that again, according to Marshall’s
interpretation of the necessary and proper clause, is
expansive. If the supremacy clause means anything,
it means that no state may “retard, impede, burden,
or in any manner control the operations of the
constitutional laws enacted by Congress.” Note, too,
Marshall’s view of the constitutional arrangement.
As one would expect, he fully endorses the position
that the charter represents a contract between the
federal government and the people—not the states.
McCulloch’s holdings—supporting congressional

creation of the bank and negating state taxation of it
—were not particularly surprising. Most observers
thought the Marshall Court would rule the way it
did. It was the chief justice’s language and the
constitutional theories he offered that sparked a
serious debate in a states’ rights newspaper, the
Richmond Enquirer. The argument started just
weeks after McCulloch was decided, as a barrage of
states’ rights advocates wrote letters to the
newspaper’s editor condemning the ruling.
Apparently concerned that if their views took hold,
the Union would revert back to its form under the
Articles of Confederation, Marshall took an unusual
step for a Supreme Court justice: he responded to
his critics. Initially, he wrote two articles, carried by
a Philadelphia newspaper, defending McCulloch. But
when an old enemy, Spencer Roane, the Virginia
Supreme Court judge who was the target of the
Court’s decision in Martin v. Hunter’s Lessee (1816),
launched an unbridled attack, Marshall responded
with nine essays published under the pseudonym “A
Friend of the Constitution.”4
4 For records of these essays, see Gerald Gunther,

ed., John Marshall’s Defense of McCulloch v.
Maryland (Stanford, CA: Stanford University Press,
1969).
Table 6-3
The Taney Court and States’

Rights
While Marshall was chief justice of the United
States, it was his view of nation–state relations, not
Roane’s, that prevailed. But their dispute
foreshadowed a series of events that took place from
the 1830s through the 1860s, events that would
change the country forever (see Table 6-3). The first
occurred in November 1832. After Congress passed
a tariff act that the South thought unfairly
burdensome, South Carolina adopted an ordinance
that nullified the federal law. Several days later, the
state said it was prepared to enforce its nullification
by military force and, if necessary, secession from
the Union. It is not surprising that South Carolina
took the lead in the battle for state sovereignty. The
state was the home of John C. Calhoun, a former vice
president of the United States and an outspoken
proponent of slavery and states’ rights. Indeed,
Calhoun is best remembered as an advocate of the
doctrine of concurrent majorities, a view that would
provide states with a veto over federal policies. This
doctrine was the underpinning for South Carolina’s
ordinance of nullification.
The president, Andrew Jackson, was no great

nationalist; rather, he believed that states’ rights
were not incompatible with the powers of the federal
government. But even he took issue with South
Carolina’s ordinance. Just a month after the state
acted, as Table 6-3 illustrates, Jackson issued a
proclamation warning the state that it could not
secede from the Union. The president’s action
infuriated South Carolina, but it temporarily averted
a major crisis, as no other state attempted to act on
the nullification doctrine.
Another event that would have major implications

was Chief Justice Marshall’s death in 1835 and
Roger Taney’s ascension to the chief justiceship. In
some ways, Marshall and Taney were alike. Both had
begun their political careers in their respective
states—Virginia and Maryland—and then held major
positions within the executive branch of the national
government. Both were committed partisan activists.
The difference was that they were committed to
opposing conceptions of government structure,
particularly of nation–state relations. In contrast to
Marshall’s Federalist sentiments, Taney was a
Jacksonian Democrat, a full believer in the ideas
espoused by President Jackson, under whom he had
served as attorney general, secretary of war, and
secretary of the Treasury, and who had appointed
him chief justice. The two chief justices’ views on the
Bank of the United States provide a clear example of
their political ideas in action. In 1819 Marshall lent
his full support to the bank; in 1832 Taney helped
write President Jackson’s veto message on the
bank’s recharter:
It is maintained by the advocates of the bank

that its constitutionality in all its features ought
to be considered as settled by precedent and by
the decision of the Supreme Court. To this
conclusion I can not assent. Mere precedent is a
dangerous source of authority, and should not be
regarded as deciding questions of constitutional
power except where the acquiescence of the
people and the States can be considered as well
settled.
Had Taney been Jackson’s only appointment to the

Court, the course of federalism might not have been
altered. But that was not the case. The Court had
changed from being composed of justices from the
Federalist and Jeffersonian party eras to becoming
dominated by Jacksonian Democrats. Table 6-4
shows that by 1841 Joseph Story was the only justice
remaining from the Marshall Court that decided
McCulloch. The others, like Taney, were schooled in
Jacksonian democracy. It was, as R. Kent Newmyer
has noted, no longer “the Marshall Court. But, then
again it was not the age of Marshall.”5 This
observation holds on two levels: doctrinally and
politically. The Taney Court ushered in substantial
legal changes, especially in federal–state relations.
Although there is no true Taney corollary to
Marshall’s opinion in McCulloch, examples of
Taney’s views abound. In many opinions he
explicated the doctrine of dual federalism, that
national and state governments are equivalent
sovereigns within their own spheres of operation.
Unlike Marshall, he read the Tenth Amendment in a
broad sense, asserting that it did, in fact, reserve to
the states certain powers and limited the power of
the federal government over the states.
5 R. Kent Newmyer, The Supreme Court under

Marshall and Taney (New York: Crowell, 1968), 94.
Table 6-4
Early Taney Court decisions were not politically
controversial. They may have represented a break
from previous doctrine, but they matched the tenor
of the times. Although Jackson had his feuds with the
states (as his battle with South Carolina illustrates),
his general philosophical approach to federalism and
governance aligned with popular opinion. The issue
of slavery was another matter. It had been the cause
of acrimony at the Philadelphia convention in 1787,
and animosity between the North and the South had
continued. The country remained united only
through compromises, such as the “three-fifths” plan
in the U.S. Constitution, by which a slave was
counted as three-fifths of a person for taxation and
representation purposes, and the Missouri
Compromise of 1820, which provided a plan for
slavery in newly admitted states and the territories.
By the 1850s old battles were heating up; for
example, after California was admitted to the Union
as a free state, South Carolina once again issued a
secession call.
Dred Scott
Library of Congress
Slavery, therefore, represented the most immediate

concern of the day, splitting the nation into two
ideological camps. On a different level, however, it
was a symptom of a larger problem: the growing
resistance of Southern states to federal supremacy.
As the North’s criticism of slavery became more
vocal, calls for secession or, at the very least, for
adoption of Calhoun’s “concurrent majority”
doctrine, became more widespread in the South.
It was at this critical moment that the Taney Court
interceded in both issues—slavery and federal
supremacy—by planting its feet firmly in the states’
rights camp. With its decision in the infamous case
of Scott v. Sandford, the Court may have contributed
to the collapse of the Union. Also, as you read
Taney’s opinion in this case, note his theory of the
nature of the constitutional contract. How do his
views differ from Marshall’s in McCulloch?
Scott v. Sandford 60 U.S. (19 How.) 393 (1857)
court/60/393.html
Vote: 7 (Campbell, Catron, Daniel, Grier, Nelson,

Taney, Wayne)
2 (Curtis, McLean)
OPINION OF THE COURT: Taney

CONCURRING OPINIONS: Campbell,
Catron, Daniel, Grier, Nelson, Wayne
DISSENTING OPINIONS: Curtis, Mclean
Facts:
Dred Scott was born into slavery in Virginia about
1795.6 His original owner was Peter Blow, a
plantation owner. Although the title to Scott would
be transferred several times, Blow’s family
remained connected to Scott throughout his life.
6 Sources for the facts of this case are National
Cyclopaedia of American Biography, vol. 2 (New
York: James T. White, 1892), 306–307; Dictionary
of American Biography, vol. 8 (New York: Charles
Scribner’s Sons, 1935), 488–489; American
National Biography, vol. 19 (New York: Oxford
University Press, 1999), 487–489. Original
documents relating to the case are available at
“The Revised Dred Scott Case Collection,”
Washington University,
http://digital.wustl.edu/dredscott/.
Blow moved to St. Louis with his family and slaves

in 1827. In 1833, after Blow’s death, Scott was
sold to John Emerson, a surgeon in the U.S. Army.
The following year Emerson took Scott to the free
state of Illinois, and in 1836 to the Upper
Louisiana Territory, which was to remain free of
slavery under the Missouri Compromise of 1820.
While in the Wisconsin Territory, Scott married
Harriet Robinson, also a slave. They had two
daughters.
Eventually, Scott and Emerson returned to

Missouri, but the doctor died shortly thereafter,
and title to Scott transferred to his widow, E. Irene
Sanford Emerson.7 She had little need for a slave
and hired him out to other families in St. Louis.
Scott, however, was a poor worker and produced
little income. Irene Emerson then moved to
Massachusetts, leaving Scott and his family
behind. She married Calvin Clifford Chaffee, a
New England abolitionist, without telling him that
she held title to a slave in St. Louis.8
7 The name Sanford was misspelled Sandford in
the official records.
8 Just prior to the Court’s decision in Scott v.

Sandford, an embarrassed Calvin Chaffee
discovered his wife’s previous ownership of the
slave. When the justices ruled against Scott,
Chaffee and Sanford transferred title to Scott to
Taylor Blow, another son of his original owner.
They did so to facilitate Scott’s emancipation.
Under state law, a Missouri slave could be freed
only if the owner was a Missouri citizen. Blow
emancipated Dred Scott and his family on May 26,
1857, just two and a half months after the
Supreme Court’s ruling. By this time, Scott had
become a local celebrity in St. Louis. He spent the
rest of his life as a porter at Barnum’s Hotel. He
lived just over a year as a free man, dying of
tuberculosis on September 17, 1858. Henry Blow
paid for his funeral and burial in St. Louis.
In 1846 Henry T. Blow, wealthy son of Scott’s

original owner, initiated a lawsuit in Missouri state
courts to gain Scott’s freedom. Blow and Scott
believed that Scott no longer had slave status
because he had lived on free soil. While the courts
considered this petition, Scott remained in the
custody of the St. Louis sheriff and was hired out
at $5 per month.
Scott received a favorable decision at the trial

court level but lost in the Missouri Supreme
Court. When state courts rejected Scott’s bid for
emancipation, Blow arranged for Scott’s
ownership to be transferred to Irene Chaffee’s
brother, John Sanford of New York. This sale
allowed Scott to take his case to federal court
under diversity of citizenship jurisdiction—Scott
was a citizen of Missouri and Sanford was a
citizen of New York. Sanford argued that the suit
should be dismissed because members of the
“African race” could not be citizens. The lower
federal courts seemed perplexed by the issue. In
the end, they ruled in favor of Sanford but
suggested that for legal purposes Scott may be a
citizen. From 1854 to 1857, while the federal
courts considered his cause, Scott lived in St.
Louis with virtually no restraints on his freedom.
By the time the case arrived at the U.S. Supreme

Court for final judgment in 1856, the facts and the
political situation had become increasingly
complex. In 1854, under mounting pressure,
Congress had repealed the Missouri Compromise,
replacing it with legislation declaring
congressional neutrality on the issue of slavery.
Given this new law and the growing tensions
between the North and the South and the free and
slave states, some observers speculated that the
Court would decline to decide the case: it had
become too controversial and political.
For at least a year, the Court chose that route.

Historians, in fact, have suggested that after
hearing the case the justices wanted simply to
affirm the state court’s decision, thereby evading
the issue of slavery and citizenship for blacks. But
when Justice James Wayne, a Jackson appointee
from Georgia, insisted that the Court deal with
these concerns, the majority of the others—
including Chief Justice Taney, a former slaveholder
—went along. Waiting until after the presidential
election, a very divided Court (nine separate
opinions were written) announced its decision.
Arguments:9
9 U.S. Reports contains the following statement
about arguments in this case: “The reporter
regrets that want of room will not allow him to
give the arguments of counsel; but he regrets it
the less, because the subject is thoroughly
examined in the opinion of the court, the opinions
of the concurring judges, and the opinions of the
judges who dissented from the judgment of the
court.” Not only are the arguments not recorded
in U.S. Reports (as they often were for nineteenth-
century cases), but we also cannot locate briefs.
Accordingly, we follow the reporter’s advice and
develop arguments from the Court’s opinion.
For the plaintiff in error, Dred

Scott:
Scott is entitled to freedom under the Missouri
Compromise, the congressional emancipation
act that prohibited citizens from holding and
owning slaves in the Louisiana Purchase
territories. Because he was living in
emancipated territories, Congress emancipated
him.
Scott is also entitled to freedom under Illinois
state emancipation law. He was taken to Illinois
and thereupon was made free, and the mere
fact that he was taken back to Missouri does
not revert him back to a state of slavery.
Art. IV, Sect. 3, Cl. 2, of the Constitution gives
Congress the power to “to dispose of and make
all needful rules and regulations respecting the
territory or other property belonging to the
United States,” which includes regulating
slavery in all territories of the nation.
For the defendant in error, John

F. A. Sanford:
Considering the debates during the drafting of
the Constitution, it is clear that the framers did
not intend for the word citizen to encompass
people of the African race. Even if Scott were a
citizen of a state, he would not be a citizen of
the United States under the Constitution.
Therefore, he does not have the right to sue in
a court of the United States, and the Court has
no jurisdiction over this case.
The Supreme Court had previously set
precedent establishing that the freedom or
servitude of a slave returning to a slave state
from a free state depends on the laws of the
original home state. Following precedent, the
Court has no jurisdiction to revise state court
holdings on state law.
The plain text of the Constitution protects the
right to slave ownership, and for this reason,
the Missouri Compromise is unconstitutional.
Mr. Chief Justice Taney Delivered the Opinion

of the Court.
The question is simply this: can a negro whose
ancestors were imported into this country and
sold as slaves, become a member of the political
community formed and brought into existence by
the Constitution of the United States, and as such
become entitled to all the rights, and privileges,
and immunities, guarantied by that instrument to
the citizen. One of which rights is the privilege of
suing in a court of the United States in the cases
specified in the Constitution. . . .
The words “people of the United States” and

“citizens” are synonymous terms, and mean the
same thing. They both describe the political body,
who, according to our republican institutions,
form the sovereignty, and who hold the power and
conduct the government through their
representatives. . . .The question before us is,
whether [“negroes”] compose a portion of this
people, and are constituent members of this
sovereignty. We think they are not, and that they
are not included, and were not intended to be
included, under the word “citizens” in the
Constitution, and can, therefore, claim none of the
rights and privileges which that instrument
provides for and secures to citizens of the United
States. On the contrary, they were at that time
considered as a subordinate and inferior class of
beings, who had been subjugated by the dominant
race, and whether emancipated or not, yet
remained subject to their authority, and had no
rights or privileges but such as those who held the
power and the government might choose to grant
them.
It is not the province of the court to decide upon
the justice or injustice, the policy or impolicy of
these laws. The decision of that question belonged
to the political or lawmaking power; to those who
formed the sovereignty and framed the
Constitution. The duty of the court is to interpret
the instrument they have framed, with the best
lights we can obtain on the subject, and to
administer it as we find it, according to its true
intent and meaning when it was adopted. . . .
. . . [We] must not confound the rights of

citizenship which a State may confer within its
own limits and the rights of citizenship as a
member of the Union. It does not by any means
follow, because he has all the rights and privileges
of a citizen of a State, that he must be a citizen of
the United States. He may have all of the rights
and privileges of the citizen of a State and yet not
be entitled to the rights and privileges of a citizen
in any other State. . . . Each State may still confer
them upon an alien, or anyone it thinks proper, or
upon any class or description of persons, yet he
would not be a citizen in the sense in which that
word is used in the Constitution of the United
States. . . .
It becomes necessary, therefore, to determine who

were citizens of the several States when the
Constitution was adopted. . . .
In the opinion of the court, the legislation and

histories of the times, and the language used in
the Declaration of Independence, show, that
neither the class of persons who had been
imported as slaves, nor their descendants,
whether they had become free or not, were then
acknowledged as a part of the people, nor
intended to be included in the general words used
in that memorable instrument.
It is difficult at this day to realize the state of

public opinion in relation to that unfortunate race,
which prevailed in the civilized and enlightened
portions of the world at the time of the
Declaration of Independence, and when the
Constitution of the United States was framed and
adopted. . . .
They had for more than a century before been

regarded as beings of an inferior order, and
altogether unfit to associate with the white race,
either in social or political relations; and so far
inferior, that they had no rights which the white
man was bound to respect; and that the negro
might justly and lawfully be reduced to slavery for
his benefit. He was bought and sold, and treated
as an ordinary article of merchandise and traffic,
whenever a profit could be made by it. This
opinion was at that time fixed and universal in the
civilized portion of the white race. . . .
The legislation of the different colonies furnishes

positive and indisputable proof of this fact. . . .
. . . [T]hese laws . . . [which] were still in force

when the Revolution began and are a faithful
index to the state of feeling towards the class of
persons of whom they speak, show that a
perpetual and impassable barrier was intended to
be erected between the white race and the one
which they had reduced to slavery, and governed
as subjects with absolute and despotic power, and
which they then looked upon as so far below them
in the scale of created beings, that intermarriages
between white persons and negroes or mulattoes
were regarded as unnatural and immoral, and
punished as crimes, not only in the parties, but in
the person who joined them in marriage. And no
distinction in this respect was made between the
free negro or mulatto and the slave, but this
stigma, of the deepest degradation, was fixed
upon the whole race. . . .
This state of public opinion had undergone no

change when the Constitution was adopted, as is
equally evident from its provisions and language. .
..
. . . [T]here are two clauses in the Constitution

which point directly and specifically to the negro
race as a separate class of persons, and show
clearly that they were not regarded as a portion of
the people or citizens of the Government then
formed.
One of these clauses reserves to each of the

thirteen States the right to import slaves until the
year 1808, if it thinks proper. . . . And by the other
provision the States pledge themselves to each
other to maintain the right of property of the
master, by delivering up to him any slave who may
have escaped from his service, and be found
within their respective territories. By the first
above-mentioned clause, therefore, the right to
purchase and hold this property is directly
sanctioned and authorized for twenty years by the
people who framed the Constitution. And by the
second, they pledge themselves to maintain and
uphold the right of the master in the manner
specified, as long as the Government they then
formed should endure. And these two provisions
show, conclusively, that neither the description of
persons therein referred to, nor their descendants,
were embraced in any of the other provisions of
the Constitution; for certainly these two clauses
were not intended to confer on them or their
posterity the blessings of liberty, or any of the
personal rights so carefully provided for the
citizen. . . .
No one, we presume, supposes that any change in

public opinion or feeling, in relation to this
unfortunate race, in the civilized nations of Europe
or in this country, should induce the court to give
to the words of the Constitution a more liberal
construction in their favor than they were
intended to bear when the instrument was framed
and adopted. Such an argument would be
altogether inadmissible in any tribunal called on
to interpret it. If any of its provisions are deemed
unjust, there is a mode prescribed in the
instrument itself by which it may be amended; but
while it remains unaltered, it must be construed
now as it was understood at the time of its
adoption. It is not only the same in words, but the
same in meaning, and delegates the same powers
to the Government, and reserves and secures the
same rights and privileges to the citizen; and as
long as it continues to exist in its present form, it
speaks not only in the same words, but with the
same meaning and intent with which it spoke
when it came from the hands of its framers, and
was voted on and adopted by the people of the
What the construction was at that time we think

can hardly admit of doubt. . . .
And upon a full and careful consideration of the

subject, the court is of opinion that, upon the facts
stated in the plea in abatement, Dred Scott was
not a citizen of Missouri within the meaning of the
Constitution of the United States, and not entitled
as such to sue in its courts; and, consequently,
that the Circuit Court had no jurisdiction of the
case, and that the judgment on the plea in
abatement is erroneous. . . .
We proceed, therefore, to inquire whether the

facts relied on by the plaintiff entitled him to his
freedom. . . .
. . . [T]he difficulty which meets us at the

threshold of this part of the inquiry is whether
Congress was authorized to pass [the Missouri
Compromise] under any of the powers granted to
it by the Constitution; for if the authority is not
given by that instrument, it is the duty of this
court to declare it void and inoperative, and
incapable of conferring freedom upon any one who
is held as a slave under the laws of any one of the
States.
The counsel for the plaintiff has laid much stress

upon that article in the Constitution which confers
on Congress the power “to dispose of and make all
needful rules and regulations respecting the
territory or other property belonging to the United
States”; but, in the judgment of the court, that
provision has no bearing on the present
controversy, and the power there given, whatever
it may be, is confined, and was intended to be
confined, to the territory which at that time
belonged to, or was claimed by, the United States,
and was within their boundaries as settled by the
Treaty with Great Britain, and can have no
influence upon a territory afterwards acquired
from a foreign government. It was a special
provision for a known and particular Territory, and
to meet a present emergency, and nothing more. .
..
The language used in the clause, the arrangement

and combination of the powers, and the somewhat
unusual phraseology it uses when it speaks of the
political power to be exercised in the government
of the territory, all indicate the design and
meaning of the clause to be such as we have
mentioned. It does not speak of any territory, nor
of Territories, but uses language which, according
to its legitimate meaning, points to a particular
thing. The power is given in relation only to the
territory of the United States—that is, to a
territory then in existence, and then known or
claimed as the territory of the United States. It
begins its enumeration of powers by that of
disposing, in other words, making sale of the
lands, or raising money from them, which, as we
have already said, was the main object of the
cession, and which is accordingly the first thing
provided for in the article. It then gives the power
which was necessarily associated with the
disposition and sale of the lands—that is, the
power of making needful rules and regulations
respecting the territory. And whatever
construction may now be given to these words,
everyone, we think, must admit that they are not
the words usually employed by statesmen in
giving supreme power of legislation. They are
certainly very unlike the words used in the power
granted to legislate over territory which the new
Government might afterwards itself obtain by
cession from a State, either for its seat of
Government or for forts, magazines, arsenals,
dockyards, and other needful buildings.
This brings us to examine by what provision of the

Constitution the present Federal Government
under its delegated and restricted powers, is
authorized to acquire territory outside of the
original limits of the United States, and what
powers it may exercise therein over the person or
property of a citizen of the United States, while it
remains a territory, and until it shall be admitted
as one of the States of the Union. . . .
There is certainly no power given by the

Constitution to the Federal Government to
establish or maintain colonies bordering on the
United States or at a distance to be ruled and
governed at its own pleasure, nor to enlarge its
territorial limits in any way except by the
admission of new States.
Taking this rule to guide us, it may be safely

assumed that citizens of the United States who
migrate to a Territory belonging to the people of
the United States cannot be ruled as mere
colonists, dependent upon the will of the General
Government and to be governed by any laws it
may think proper to impose. The principle upon
which our Governments rest and upon which alone
they continue to exist, is the union of States,
sovereign and independent within their own limits
in their internal and domestic concerns, and
bound together as one people by a General
Government, possessing certain enumerated and
restricted powers delegated to it by the people of
the several States, and exercising supreme
authority within the scope of the powers granted
to it throughout the dominion of the United States.
A power, therefore, in the General Government to
obtain and hold colonies and dependent territories
over which they might legislate without restriction
would be inconsistent with its own existence in its
present form. Whatever it acquires, it acquires for
the benefit of the people of the several States who
created it. It is their trustee acting for them, and
charged with the duty of promoting the interests
of the whole people of the Union in the exercise of
the powers specifically granted.
Upon these considerations, it is the opinion of the

court that the Act of Congress which prohibited a
citizen from holding and owning property of this
kind in the territory of the United States north of
the line therein mentioned, is not warranted by
the Constitution, and is therefore void; and that
neither Dred Scott himself, nor any of his family,
were made free by being carried into this
territory; even if they had been carried there by
the owner, with the intention of becoming a
permanent resident. . . .
Upon the whole, therefore, it is the judgment of

this court, that it appears by the record before us
that the plaintiff in error is not a citizen of
Missouri, in the sense in which that word is used
in the Constitution; and that the Circuit Court of
the United States, for that reason, had no
jurisdiction in the case, and could give no
judgment in it.
Its judgment for the defendant must,

consequently, be reversed, and a mandate issued
directing the suit to be dismissed for want of
jurisdiction.
MR. JUSTICE CURTIS,

dissenting.
To determine whether any free persons,
descended from Africans held in slavery, were
citizens of the United States under the
Confederation, and consequently at the time of the
adoption of the Constitution of the United States,
it is only necessary to know whether any such
persons were citizens of either of the States under
the Confederation, at the time of the adoption of
the Constitution.
Of this there can be no doubt. At the time of the

ratification of the Articles of Confederation, all
free native-born inhabitants of the States of New
Hampshire, Massachusetts, New York, New Jersey,
and North Carolina, though descended from
African slaves, were not only citizens of those
States, but such of them as had the other
necessary qualifications possessed the franchise of
electors, on equal terms with other citizens. . . .
Did the Constitution of the United States deprive
them or their descendants of citizenship?
That Constitution was ordained and established by

the people of the United States, through the
action, in each State, of those persons who were
qualified by its laws to act thereon, in behalf of
themselves and all other citizens of that State. In
some of the States, as we have seen, colored
persons were among those qualified by law to act
on this subject. These colored persons were not
only included in the body of “the people of the
United States,” by whom the Constitution was
ordained and established, but in at least five of the
States they had the power to act, and doubtless
did act, by their suffrages, upon the question of its
adoption. It would be strange, if we were to find in
that instrument anything which deprived of their
citizenship any part of the people of the United
States who were among those by whom it was
established.
I can find nothing in the Constitution which,

proprio vigore [by its own force], deprives of their
citizenship any class of persons who were citizens
of the United States at the time of its adoption, or
who should be native-born citizens of any State
after its adoption; nor any power enabling
Congress to disfranchise persons born on the soil
of any State, and entitled to citizenship of such
State by its Constitution and laws. And my opinion
is, that, under the Constitution of the United
States, every free person born on the soil of a
State, who is a citizen of that State by force of its
Constitution or laws, is also a citizen of the United
States.
Taney’s opinion held that Scott was still a slave for
the following reasons: First, although Scott could
become a citizen of a state, he could not be
considered, in a legal sense, to be a citizen of the
United States; the nation’s history and the words of
the Constitution and other documents foreclosed
that possibility. As a result, Scott could not sue in
federal courts. Second, Congress had no
constitutional power to regulate slavery in the
territories (in reaching this result, the Court struck
down the Missouri Compromise, which Congress had
already repealed); the Constitution protects the right
to property, a category that, according to Taney,
included slaves. Third, the status of slaves depended
on the law of the state to which they voluntarily
returned, regardless of where they had been.
Because the Missouri Supreme Court ruled that
Scott was a slave, the U.S. Supreme Court would
follow suit. Embedded in these holdings is a strong
commitment to dual federalism. Although Taney did
not explicitly cite the Tenth Amendment, his use of
its language made clear that he viewed it as a brake
on the federal government.
Scott was decided as the nation was on the verge of

collapse (see Table 6-3). Taney’s holding, coupled
with his vision of the nature of the federal–state
relationship, rather than calming matters, probably
added fuel to the fire. From the perspective of
Northerners and abolitionists, the opinion was
among the most evil and heinous the Court ever
issued. Opponents of slavery used the ruling to rally
support for their position; they took aim at Taney
and the Court, claiming that the institution was so
pro-South that it could not be taken seriously.
Northern newspapers aroused anti-Court sentiment
around the country with stories about the decision.
As one wrote,
The whole slavery agitation was reopened by the

proceedings in the Supreme Court today, and
that tribunal voluntarily introduced itself into the
political arena. . . . Much feeling is excited by
this decree, and the opinion is freely expressed
that a new element of sectional strife has been
wantonly imposed upon the country.10
10 Quoted by Charles Warren in The Supreme Court

in United States History, vol. 2 (Boston: Little,
Brown, 1926), 304.
Members of Congress lambasted the Court for the

raw and unnecessary display of judicial power it had
exercised in striking down the Missouri
Compromise. A history on the period asserted,
“Never has the Supreme Court been treated with
such ineffable contempt, and never has that tribunal
so often cringed before the clamor of the mob.”11 As
for the chief justice, his reputation was forever
tarnished. Even after Taney’s death, Congress
resisted commissioning a bust of him to sit beside
those of other chief justices in the Capitol’s Supreme
Court room. At the time, Senator Charles Sumner
said, “I object to that; that now an emancipated
country should make a bust to the author of the Dred
Scott decision. . . . [T]he name of Taney is to be
hooted down the page of history. Judgment is
beginning now; and an emancipated country will
fasten upon him the stigma which he deserves.”12
11 Quoted by Bernard Schwartz in A History of the

Supreme Court (New York: Oxford University Press,
1993), 154.
12 Congressional Globe (23 February 1865) 38th

Cong., 2d sess., 1012. It was not until 1874 that
busts of Samuel Chase and Roger Taney were
approved “without debate.” See Warren, The
Supreme Court in United States History, 393–394.
To Southerners, Scott was a cause for celebration.

Indeed, Taney’s notions of slavery and dual
federalism appeared in a more energized form just a
few years later when South Carolina issued its
Declaration of the Causes of Secession. President
Abraham Lincoln presented precisely the opposite
view—the Marshall approach—in his 1861 inaugural
address, but his words could not prevent the
outbreak of war.
At its core the Civil War was not only about slavery
but also about the supremacy of the national
government over the states. It was the culmination
of the debates between the Federalists and Anti-
Federalists, between Marshall and Roane, and so
forth. When the Union won the war, it seemed to
have also won the debate over the nature of federal–
state relations. In the immediate aftermath of the
battle, the Court acceded, though not willingly, to
congressional power over the defeated region.
The Post–Civil War Era and the

Return of Dual Federalism
Once the Civil War concluded, Congress moved
swiftly to embed into the Constitution the victories
that Union armies had won on the battlefield. Three
constitutional amendments were proposed and
ratified. The Thirteenth and Fifteenth Amendments
focused on issues of slavery and race. The Thirteenth
(1865) put an official end to slavery and the
Fifteenth (1870) barred the denial of voting rights on
account of race. The Fourteenth Amendment (1968)
shifted much governmental authority from the states
to the federal government. It also directly overruled
Taney’s Dred Scott opinion by declaring, “All persons
born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.” As a
consequence, United States citizenship became
superior to state citizenship. Constitutionally, the
dual federalism of the Jacksonian era had ended.
Did the conclusion of the Civil War and the rise of

national supremacy mean that Taney’s dual
federalism had seen its last days? Indeed, it
remained under wraps for several decades but then
resurfaced in a somewhat different form as the
nation became engulfed in the Industrial Revolution
and the rise of big business. From the 1890s to the
1930s laissez-faire economic philosophies ruled the
day. The Supreme Court’s decisions during this
period generally favored business interests by
invalidating laws that regulated commerce and the
economy. The Tenth Amendment was frequently
relied on to justify striking down federal legislation.
Even outside the sphere of commerce and business,

the Court once again began articulating the
philosophy of dual federalism. Take, for example, the
justices’ decision in Coyle v. Smith (1911). This
dispute involved a congressional directive telling a
newly admitted state where it must locate its capital.
Did Congress’s power to admit new states extend to
placing such conditions on statehood? Or was the
congressional order an unconstitutional intrusion
into state sovereignty? As you read Justice Horace
Lurton’s opinion, note the vivid language of dual
federalism, including the position that the national
government is a “union of states” and that the states
must be “equal in power, dignity and authority, each
competent to exert that residuum of sovereignty not
delegated to the United States by the Constitution
itself.” Lurton goes so far as to declare that “without
the States in union, there could be no such political
body as the United States.” Finally, notice the
Court’s narrow interpretation of Congress’s implied
powers.
Coyle v. Smith 221 U.S. 559 (1911)
court/221/559/html
Vote: 7 (Day, Harlan, Hughes, Lamar, Lurton, Van

Devanter, White)
2 (Holmes, McKenna)
OPINION of the Court: Lurton
Facts:
Article IV, Section 3, of the Constitution authorizes
Congress to admit new states. On June 16, 1906,
Congress exercised this power by passing the
Enabling Act inviting the Oklahoma Territory to
join the Union. The invitation, however, came with
certain conditions. One of those conditions
required that the state capital be in Guthrie,
where the territorial capital was located, and that
the state refrain from relocating the capital or
making any provisions for relocation before 1913.
The terms of the Enabling Act were to be
“irrevocable.”
Why this restriction was imposed is a bit

uncertain, but it seemingly had to do with a
Republican-dominated Congress granting
statehood to a heavily Democratic territory. The
city of Guthrie, however, was Oklahoma’s lone
Republican stronghold.
The territory accepted the terms of the invitation,

and in 1907 Oklahoma became the forty-sixth
state. But just three years later the state’s voters
supported a measure to move the capital to
Oklahoma City. Democratic governor Charles
Haskell and the state legislature did not wait until
1913 to take action on the voters’ wishes, but
immediately enacted implementing legislation and
began securing the necessary funds to effect the
relocation.
W. H. Coyle, a large Guthrie landowner who would

suffer economic losses if the capital were to be
moved, filed suit against Oklahoma secretary of
state Thomas Smith to block the relocation.
Oklahoma’s supreme court upheld the state’s
actions, and Coyle requested Supreme Court
review.
Arguments:
For the petitioner, W. H. Coyle:
Congress’s constitutional authority to admit
states is absolute, and in its discretion it can
impose whatever conditions it deems
appropriate.
Congress has a history of imposing such
conditions, often doing so to ensure that new
states adhere to the constitutional obligation to
have a “republican form of government.”
Oklahoma freely agreed to the provisions of
the Enabling Act. Those provisions are
irrevocable.
For the respondent, Thomas P.

Smith, Oklahoma secretary of
state:
In requiring Oklahoma to yield a portion of its
state sovereignty, Congress violated the
constitutional principle of state equality under
which all states stand on equal footing.
Congress cannot deny a state its police
powers, which include the authority to locate
the state capital where it can most effectively
serve the state’s citizens.
A state cannot be bound by unconstitutional
provisions contained in an agreement imposed
by Congress.
Mr. Justice Lurton Delivered the Opinion of

the Court.
The only question for review by us is whether the

provision of the enabling act was a valid limitation
upon the power of the State after its admission
which overrides any subsequent state legislation
repugnant thereto.
The power to locate its own seat of government

and to determine when and how it shall be
changed from one place to another, and to
appropriate its own public funds for that purpose,
are essentially and peculiarly state powers. That
one of the original thirteen States could now be
shorn of such powers by an act of Congress would
not be for a moment entertained. The question
then comes to this: can a State be placed upon a
plane of inequality with its sister States in the
Union if the Congress chooses to impose
conditions which so operate at the time of its
admission? . . .
The power of Congress in respect to the admission

of new States is found in the third section of the
fourth Article of the Constitution. That provision is
that “New States may be admitted by the
Congress into this Union.” The only expressed
restriction upon this power is that no new State
shall be formed within the jurisdiction of any other
State, nor by the junction of two or more States,
or parts of States, without the consent of such
States, as well as of the Congress.
But what is this power? It is not to admit political

organizations which are less or greater, or
different in dignity or power, from those political
entities which constitute the Union. It is, as
strongly put by counsel, a “power to admit
States.”
The definition of “a State” is found in the powers

possessed by the original States which adopted
the Constitution, a definition emphasized by the
terms employed in all subsequent acts of Congress
admitting new States into the Union. The first two
States admitted into the Union were the States of
Vermont and Kentucky, one as of March 4, 1791,
and the other as of June 1, 1792. No terms or
conditions were exacted from either. Each act
declares that the State is admitted “as a new and
entire member of the United States of America.”
Emphatic and significant as is the phrase admitted
as “an entire member,” even stronger was the
declaration upon the admission in 1796 of
Tennessee, as the third new State, it being
declared to be “one of the United States of
America,” “on an equal footing with the original
States in all respects whatsoever,” phraseology
which has ever since been substantially followed
in admission acts, concluding with the Oklahoma
act, which declares that Oklahoma shall be
admitted “on an equal footing with the original
States.”
The power is to admit “new States into this

Union.”
“This Union” was and is a union of States, equal in

power, dignity and authority, each competent to
exert that residuum of sovereignty not delegated
to the United States by the Constitution itself. To
maintain otherwise would be to say that the
Union, through the power of Congress to admit
new States, might come to be a union of States
unequal in power, as including States whose
powers were restricted only by the Constitution,
with others whose powers had been further
restricted by an act of Congress accepted as a
condition of admission. Thus, it would result, first,
that the powers of Congress would not be defined
by the Constitution alone, but in respect to new
States, enlarged or restricted by the conditions
imposed upon new States by its own legislation
admitting them into the Union; and, second, that
such new States might not exercise all of the
powers which had not been delegated by the
Constitution, but only such as had not been
further bargained away as conditions of
admission.
The argument that Congress derives from the duty

of “guaranteeing to each State in this Union a
republican form of government” power to impose
restrictions upon a new State which deprives it of
equality with other members of the Union, has no
merit. . . . [I]t obviously does not confer power to
admit a new State which shall be any less a State
than those which compose the Union. . . .
. . . The constitutional provision concerning the

admission of new States is not a mandate, but a
power to be exercised with discretion. From this
alone, it would follow that Congress may require,
under penalty of denying admission, that the
organic laws of a new State at the time of
admission shall be such as to meet its approval. A
constitution thus supervised by Congress would,
after all, be a constitution of a State, and, as such,
subject to alteration and amendment by the State
after admission. Its force would be that of a state
constitution, and not that of an act of Congress. . .
.
So far as this court has found occasion to advert to

the effect of enabling acts as affirmative
legislation affecting the power of new States after
admission, there is to be found no sanction for the
contention that any State may be deprived of any
of the power constitutionally possessed by other
States, as States, by reason of the terms in which
the acts admitting them to the Union have been
framed. . . .
. . . [W]hen a new State is admitted into the Union,

it is so admitted with all of the powers of
sovereignty and jurisdiction which pertain to the
original States, and that such powers may not be
constitutionally diminished, impaired or shorn
away by any conditions, compacts or stipulations
embraced in the act under which the new State
came into the Union which would not be valid and
effectual if the subject of congressional legislation
after admission. . . .
. . . The legislation in the Oklahoma enabling act

relating to the location of the capital of the State,
if construed as forbidding a removal by the State
after its admission as a State, is referable to no
power granted to Congress over the subject, and if
it is to be upheld at all, it must be implied from the
power to admit new States. If power to impose
such a restriction upon the general and
undelegated power of a State be conceded as
implied from the power to admit a new State,
where is the line to be drawn against restrictions
imposed upon new States? The insistence finds no
support in the decisions of this court. . . .
Has Oklahoma been admitted upon an equal

footing with the original States? If she has, she, by
virtue of her jurisdictional sovereignty as such a
State, may determine for her own people the
proper location of the local seat of government.
She is not equal in power to them if she cannot.
In Texas v. White [1869] Chief Justice Chase said
in strong and memorable language that, “the
Constitution, in all of its provisions, looks to an
indestructible Union, composed of indestructible
States.”
In Lane County v. Oregon [1869], he said:
“The people of the United States constitute

one nation, under one government, and this
government, within the scope of the powers
with which it is invested, is supreme. On the
other hand, the people of each State compose
a State having its own government, and
endowed with all the functions essential to
separate and independent existence. The
States disunited might continue to exist.
Without the States in union, there could be no
such political body as the United States.”
To this we may add that the constitutional equality

of the States is essential to the harmonious
operation of the scheme upon which the Republic
was organized. When that equality disappears, we
may remain a free people, but the Union will not
be the Union of the Constitution.
Judgment affirmed.
The immediate dispute in Coyle v. Smith was a

relatively narrow one. The admission of a new state,
after all, is an uncommon occurrence. Importantly,
however, the dual federalism principles articulated
in Coyle, including an elevated protection of states’
rights and a narrow construction of federal authority,
can be readily found in other areas of constitutional
importance during this era. Most significant were
the Court’s decisions on the regulation of commerce.
The commerce clause cases centered on some of

history’s most important disputes over the allocation
of government power. Because of their crucial role in
American constitutional development, we discuss the
Court’s commerce rulings in detail in the next
chapter. Here, however, it is important to summarize
their relevance to the federalism questions of the
early twentieth century.
Article I grants Congress the power “to regulate

commerce . . . among the several States,” leaving
purely intrastate commerce to be governed by the
states. Although this division of authority appears to
be a logical one, the distinction between interstate
commerce and intrastate commerce is subject to
interpretation. From the 1890s into the 1930s, the
Supreme Court narrowly constructed the meaning of
interstate commerce and under the Tenth
Amendment vigorously protected the authority of the
states to regulate commercial activity outside that
definition. Underlying these dual federalism rulings,
of course, was a strong adherence to the
antiregulatory, laissez-faire philosophy of that era.
In United States v. E. C. Knight Co. (1895), for

example, the Court struck down a federal antitrust
effort in the sugar industry on the ground that
enterprises such as manufacturing and refining take
place within state boundaries and therefore qualify
as intrastate commerce not subject to federal
regulation. This was true, the Court said, in spite of
the fact that the manufactured products may
subsequently be shipped to other states. Interstate
commerce does not begin, according to Chief Justice
Melville Fuller’s opinion for the Court, until the
manufactured goods “commence their final
movement from the State of their origin to that of
their destination.” The manufacturing stage,
therefore, remained under the regulatory powers of
the states.
In Hammer v. Dagenhart (1918) (excerpted in

Chapter 7), the justices applied these same
principles in considering the constitutionality of the
Federal Child Labor Act of 1915. The law prohibited
the shipment in interstate commerce of factory
goods made by children under the age of fourteen or
by children ages fourteen to sixteen who worked
more than eight hours a day. Congress had
attempted to keep child labor within its
constitutional authority by targeting the interstate
shipment of such goods, but the Court saw the
statute for what it really was: an effort intended to
eliminate child labor in the manufacturing stage.
Writing for a divided Court, Justice William R. Day
stated that the law was “repugnant to the
Constitution” in two ways: “It not only transcends
the authority delegated to Congress over commerce,
but also exerts a power as to a purely local matter to
which the Federal authority does not extend.” Taking
an enclave approach to the Tenth Amendment, Day
wrote,
In interpreting the Constitution it must never be

forgotten that the nation is made up of states, to
which are intrusted the powers of local
government. And to them and to the people the
powers not expressly delegated to the national
government are reserved. The power of the
states to regulate their purely internal affairs by
such laws as seem wise to the local authority is
inherent, and has never been surrendered to the
general government. To sustain this statute
would not be, in our judgment, a recognition of
the lawful exertion of congressional authority
over interstate commerce, but would sanction an
invasion by the Federal power of the control of a
matter purely local in its character, and over
which no authority has been delegated to
Congress in conferring the power to regulate
commerce among the states.
Day’s opinion was a clear endorsement of dual

federalism, but to some commentators its analysis of
the Tenth Amendment rests on tenuous grounds.
First, in its adoption of the enclave approach to the
amendment it rejects Marshall’s logic in McCulloch:
if the federal government is exercising one of its
enumerated or implied powers, the Tenth
Amendment has no role to play; it does not provide
additional protections to the states. And second, as
C. Herman Pritchett points out, Justice Day
misstated the Tenth Amendment: it does not contain
the word expressly. In so doing, he not only ignored
Marshall’s reasoning in McCulloch—it was critical to
Marshall’s interpretation of congressional powers
that the word expressly did not appear—but he also
might have ignored the history surrounding the
Tenth Amendment. When Congress considered it,
one representative proposed to “add the word
‘expressly’ so as to read ‘the powers not expressly
delegated by this Constitution.’” James Madison and
others objected, and the motion was defeated.13 So
Day assumed “a position that was historically
inaccurate.”14

Constitution, 343.
14 Pritchett, Constitutional Law of the Federal

System, 60–61.
Decisions such as E. C. Knight and Hammer were

compatible with the legal and political opinion of the
day. The Court’s willingness to embrace a free
enterprise philosophy reflected the general mood of
Americans, many of whom were benefiting
financially from the vigorous growth of the economy.
By the 1930s, however, the Court’s laissez-faire, dual
federalism philosophy met stiff opposition. When the
Great Depression seized the nation following the
stock market crash of 1929, the people demanded
government action to solve the economic crisis. In
1932 they elected President Franklin Roosevelt and
Democratic majorities in Congress. Roosevelt
promoted his New Deal program that included
unprecedented federal control of commerce and the
economy. Many elements of the New Deal were
inconsistent with the Court’s view of interstate
commerce and the role of the Tenth Amendment.
The result was an inevitable clash between the
Supreme Court and the political branches.
Between 1935 and 1936 the Court struck down a

number of major legislative enactments, including
codes of fair completion for various industries
(Schechter Poultry v. United States, 1935)
(excerpted in Chapter 7); production, price, and
labor regulations for the nation’s mines (Carter v.
Carter Coal, 1936); and limitations on agricultural
acreage planted (United States v. Butler, 1936)
(excerpted in Chapter 8). These decisions were
based on specific violations of congressional
authority along with Tenth Amendment intrusions
into the powers reserved for the states.
This exercise of judicial review led to a historic

confrontation between the Court and the president,
during which Roosevelt even proposed to alter the
structure of the Court in order to appoint new
justices with philosophies more consistent with his
view of federal authority. The battle ended in 1937
when, in National Labor Relations Board v. Jones &
Laughlin Steel Corporation (excerpted in Chapter 7),
the Court shifted position and began taking a more
generous view of the role of the federal government
in economic regulation and a narrower view of the
powers reserved to the states.
The year 1937 marks the end of nearly a half-century

of Court adherence to a dual federalism philosophy.
It is important to understand, however, that the dual
federalism of this period differed from the dual
federalism of the Taney Court. For Chief Justice
Taney dual federalism was a means of equalizing
state and federal power. During the 1890s through
the 1930s dual federalism was seen as part of a
laissez-faire philosophy to curtail federal regulation
and promote free enterprise capitalism.
The (Re)Emergence of National

Supremacy: Cooperative
Federalism
Although the Court’s abandonment of dual
federalism began in 1937, the death knell rang most
loudly with the decision in United States v. Darby
(1941). For reasons we explain in Chapter 7, Darby
is a significant modern-day statement of Congress’s
power under the commerce clause, but here we
focus on Darby’s equally important interpretation of
the Tenth Amendment.
Darby involved a challenge to an important piece of
New Deal legislation, the Fair Labor Standards Act
(FLSA). Passed in 1938 under Congress’s power to
regulate interstate commerce, the law provided that
all employers “engaged in interstate commerce, or in
the production of goods for that commerce” must
pay all their employees a minimum wage of twenty-
five cents per hour and not permit employees to
work longer than forty-four hours per week without
paying them one and one-half times their regular pay
for their overtime hours. Fred W. Darby, the owner of
a lumber company, was indicted for violating the law.
Darby did not dispute the charges. Rather, invoking

the logic of Hammer, he challenged the law’s
validity, arguing against a broad interpretation of
congressional powers and a narrow approach to the
Tenth Amendment. The government responded that
the Tenth Amendment merely reserves to the states
“the powers not delegated to the United States.”
This, the government asserted, is merely a statement
of fact that adds no new powers to the states and
does not limit the authority that has been given to
the federal government.
Writing for a unanimous Court, Justice Harlan Fiske

Stone agreed with the government’s position. Not
only did he uphold the FLSA, but he also overruled
Hammer:
The conclusion is inescapable that Hammer v.
Dagenhart was a departure from the principles
which have prevailed in the interpretation of the
Commerce Clause both before and since the
decision and that such vitality, as a precedent, as
it then had has long since been exhausted. It
should be and now is overruled.
As for Darby’s Tenth Amendment argument, Stone

wrote,
Our conclusion is unaffected by the Tenth

Amendment which provides: “The powers not
delegated to the United States by the
Constitution nor prohibited by it to the states are
reserved to the states respectively or to the
people.” The amendment states but a truism that
all is retained which has not been surrendered.
There is nothing in the history of its adoption to
suggest that it was more than declaratory of the
relationship between the national and state
governments as it had been established by the
Constitution before the amendment or that its
purpose was other than to allay fears that the
new national government might seek to exercise
powers not granted, and that the states might
not be able to exercise fully their reserved
powers.
From the beginning and for many years the
amendment has been construed as not depriving the
national government of authority to resort to all
means for the exercise of a granted power which are
appropriate and plainly adapted to the permitted
end.
Justice Stone’s opinion in Darby brought the Court

back full circle to Marshall’s view of nationalism.
Not only did Darby explicitly overrule Hammer and
uphold the FLSA, but it also gutted attempts to use
the Tenth Amendment as an enclave of states’ rights.
The Court denied that the amendment constituted a
tool that litigants could wield to build up state
authority that they could then use to challenge the
federal government’s proper exercise of enumerated
and implied powers. According to Justice Stone, and
supported by a surprisingly unanimous Court, the
Tenth Amendment was “but a truism.”
For the next thirty-five years dual federalism was out

and Stone’s version of cooperative federalism was in.
Under this doctrine, at least theoretically, the
various levels of government shared policy-making
responsibilities. In practice, it meant, as Stone’s
opinion implies, that the national government took
the lead in formulating many policy goals, which it
expected state and local officials to implement.
Consistent with this new approach, the Court
generally deferred to Congress in establishing
economic regulatory policy. By the 1960s the federal
government reigned supreme.
But change was in the wind. The election of Richard
Nixon to the presidency in 1968 was an indication of
growing dissatisfaction with an increasingly
expansive federal government. Although Nixon was
not a strong supporter of dual federalism, he favored
increased state participation in federal programs.
When it came to judicial appointments, Nixon
desired justices who exercised judicial restraint
generally and leaned toward a law-and-order posture
in particular. Such individuals also tended to have
greater sympathy for the role of state governments
than did the post–New Deal era justices who
preceded them. Nixon had the good fortune of being
able to appoint a new chief justice, Warren Burger,
and three associate justices, enough to alter the
ideological makeup of the Court.
The first significant sign of change occurred with the

announcement of the Court’s ruling in National
League of Cities v. Usery (1976), the case with which
we introduced this chapter. National League
centered once again on the FLSA, which the Court
had upheld in United States v. Darby. This case
crystallized when Congress in 1974 expanded the
scope of the FLSA to require the state governments
to pay all their employees the minimum wage and to
disallow them from working in excess of maximum
hours requirements. This, of course, represented a
major change in the scope of the law. It was one
thing for Congress to use its commerce power
authority to regulate wages and hours for workers in
the private sector, but it was a much different matter
for the federal government to dictate how state
governments must treat their own state employees.
Various cities and states challenged the

constitutionality of the new amendments. In
particular, they argued that the amendments
represented a “collision” between federal expansion
and states’ rights in violation of the Tenth
Amendment.
In their scrutiny of the FLSA, the four Nixon

appointees plus Justice Potter Stewart provided an
undeniable signal that dual federalism—in the form
of a revival of the Tenth Amendment enclave—was
far from dead. Writing for the Court, Justice William
H. Rehnquist struck down the new extension of the
FLSA as impinging on state sovereignty. Rehnquist’s
opinion did not question the validity of federal
regulation of private employers. He concluded,
however, that when Congress is regulating the states
as states—even if the law falls within one of
Congress’s enumerated or implied powers—the
Tenth Amendment enclave comes into play. “There
are attributes of sovereignty attaching to every state
government,” he wrote, “which may not be impaired
by Congress, not because Congress may lack an
affirmative grant of legislative authority to reach the
matter, but because the Constitution prohibits it
from exercising the authority in that manner.”
Where is the line separating constitutional from

unconstitutional federal intrusions into state
business? Rehnquist provided an answer when he
wrote, “Congress may not exercise that power so as
to force directly upon the States its choices as to
how essential decisions regarding the conduct of
integral governmental functions are to be made.”
“While clearly not delineating these functions,”
Joseph Kobylka has observed, “the Court did say that
they must be ‘essential to [the] separate and
independent existence of the states.’”15 Examples of
functions outside congressional authority and “well
within the area of traditional operations of state and
local governments” included firefighting, police
protection, sanitation, public health, and parks and
recreation.
15 Joseph F. Kobylka, “The Court, Justice Blackmun,

and Federalism,” Creighton Law Review 19 (1985–
1986): 21.
Writing in dissent, Justice William J. Brennan Jr. took

great issue with Rehnquist’s analysis. He accused
Rehnquist of ignoring Darby and subsequent cases
when he used the Tenth Amendment to protect
states. Brennan argued that as long as Congress is
not interfering with individual rights and liberties
and is properly exercising one of its constitutional
powers—here to regulate commerce among the
states—the Court should uphold the regulation; the
Tenth Amendment provides no additional rights to
the states. This approach made sense to Brennan
because states are already protected in Congress,
which, of course, is composed of representatives
from the states.
As it turned out, Brennan, and not Rehnquist, would

win the battle (at least in the short term) when the
Court overruled National League of Cities in Garcia
v. San Antonio Metropolitan Transit Authority
(1985). Part of the problem with National League, as
Justice Harry Blackmun explained, was that it was
difficult for the Court to distinguish traditional and
essential state functions from those that are
nontraditional and less essential. But, in upholding
the federal law, did Blackmun give too much
deference to Congress?

Authority 469 U.S. 528 (1985)
court/469/528.html

Vote: 5 (Blackmun, Brennan, Marshall, Stevens,

White)
4 (Burger, O’Connor, Powell, Rehnquist)

DISSENTING OPINIONS: Powell, O’Connor,
Rehnquist
Facts:
Garcia was virtually a carbon copy of National
League of Cities. That latter case arose when
Congress in 1974 expanded the scope of the FLSA
and brought virtually all state public employees,
who were excluded in the original legislation,
under its reach. Various cities and states and two
organizations representing their collective
interests, the National League of Cities and the
National Governors’ Conference, challenged the
constitutionality of the new amendments. In
particular, they argued that the amendments
represented a “collision” between federal
expansion and states’ rights in violation of the
Tenth Amendment. The Court, in National League
of Cities, agreed.
Garcia, too, centered on amendments to the FLSA,

in this case amendments that obligated states to
meet minimum wage and overtime requirements
for almost all public employees. The facts,
however, were a bit more complicated than those
in National League of Cities.
The San Antonio Transit System (SATS) began

operation in 1959. At first the mass transit system
was a moneymaking venture, but by 1969 it was
operating at a loss and turned to the federal
government for assistance. The federal Urban
Mass Transit Administration (UMTA) provided it
with a $4 million grant. In 1978 the city replaced
SATS with the San Antonio Metropolitan Transit
Authority (SAMTA), which also was subsidized by
federal grants. Between 1970 and 1980 the transit
system received more than $51 million, or 40
percent of its costs, from the federal government.
The case started in 1979 when, “in response to a
specific inquiry about the applicability of the FLSA
to employees of SAMTA,” the U.S. Department of
Labor issued an opinion holding that SAMTA must
abide by the act’s wage provisions. SAMTA filed a
challenge to the department’s holding, and Joe G.
Garcia and other SAMTA employees, in turn,
initiated a suit against their employer for overtime
pay.
When this case and a companion, Donovan v. San

Antonio Metropolitan Transit Authority, reached
the U.S. Supreme Court, SAMTA relied heavily on
National League of Cities. It argued that “transit
is a traditional [city] function,” and, as the
operator of that function, it was not covered by
FLSA amendments. The U.S. government and
Garcia countered by arguing that National League
of Cities was not necessarily applicable. In their
view, application of the FLSA to public transit did
not violate the Tenth Amendment because (1)
operation of a transit system is not a traditional
government function, and (2) operation of a transit
system is not a core government function that
must be exempted from federal commerce power
legislation to preserve the states’ independence.
Arguments:
For the appellant, Joe G. Garcia:
Transit is not a traditional government function;
instead it is traditionally a private business
enterprise that has always been subject to
federal labor regulation. Exempting state-run
transit systems from regulation because of the
Tenth Amendment would encourage state
takeover of all transit systems in order to avoid
regulation. That is clearly not the intended
purpose of the Tenth Amendment.
National League of Cities v. Usery limits federal
authority only to the extent necessary to
preserve state sovereignty in essential state
functions. State sovereignty is most directly
expressed in lawmaking and law enforcement
powers, not in the state’s provision of
particular goods and services. In this case, the
provision of service is in question, not
lawmaking or law enforcement powers.
Funding from the federal government made
possible the state’s entry into the public transit
arena. Therefore, the public transit systems are
cooperative efforts of the federal government
and the state. It would be illogical to conclude
that the very federal aid that helped create this
system is not subject to federal regulation.
For the appellee, San Antonio

Metropolitan Transit Authority:
National League of Cities v. Usery established
precedent that state power to determine
wages and hours is an attribute of state
sovereignty. In this case, the very same act
that threatened state sovereignty in National
League is again in question. The Tenth
Amendment protects against this.
Transit is a traditional state function because it
is purely local, has a long history of state and
local regulation through their power to regulate
street transportation, and historically has not
been subject to federal regulation any more
than any of the activities protected in National
League.
The transit system is indistinguishable from the
hospitals that were exempted from federal
regulation in National League. Both have roots
in the private sector, and both receive
significant funding from the government.
The federal government is really making an
argument about its spending power, not its
commerce clause power. It is clear from
National League that federal funding is
irrelevant in determining whether an activity is
protected.

Court.
We revisit in these cases an issue raised in

National League of Cities v. Usery (1976). In that
litigation, this Court, by a sharply divided vote,
ruled that the Commerce Clause does not
empower Congress to enforce the minimum-wage
and overtime provisions of the Fair Labor
Standards Act (FLSA) against the States “in areas
of traditional government functions.” Although
National League of Cities supplied some examples
of “traditional governmental functions,” it did not
offer a general explanation of how a “traditional”
function is to be distinguished from a
“nontraditional” one. Since then, federal and state
courts have struggled with the task, thus imposed,
of identifying a traditional function for purposes of
state immunity under the Commerce Clause.
In the present cases, a Federal District Court

concluded that municipal ownership and operation
of a mass-transit system is a traditional
governmental function and thus, under National
League of Cities, is exempt from the obligations
imposed by the FLSA. Faced with the identical
question, three Federal Courts of Appeals and one
state appellate court have reached the opposite
conclusion.
Our examination of this “function” standard

applied in these and other cases over the last
eight years now persuades us that the attempt to
draw the boundaries of state regulatory immunity
in terms of “traditional governmental function” is
not only unworkable but is also inconsistent with
established principles of federalism and, indeed,
with those very federalism principles on which
National League of Cities purported to rest. That
case, accordingly, is overruled. . . .
The central theme of National League of Cities

was that the States occupy a special position in
our constitutional system and that the scope of
Congress’ authority under the Commerce Clause
must reflect that position. Of course, the
Commerce Clause by its specific language does
not provide any special limitation on Congress’
actions with respect to the States. It is equally
true, however, that the text of the Constitution
provides the beginning rather than the final
answer to every inquiry into questions of
federalism, for “[b]ehind the words of the
constitutional provisions are postulates which
limit and control.” National League of Cities
reflected the general conviction that the
Constitution precludes “the National Government
[from] devour[ing] the essentials of state
sovereignty.” In order to be faithful to the
underlying federal premises of the Constitution,
courts must look for the “postulates which limit
and control.”
What has proved problematic is not the perception

that the Constitution’s federal structure imposes
limitations on the Commerce Clause, but rather
the nature and content of those limitations. One
approach to defining the limits on Congress’
authority to regulate the States under the
Commerce Clause is to identify certain underlying
elements of political sovereignty that are deemed
essential to the States’ “separate and independent
existence.” This approach obviously underlay the
Court’s use of the “traditional governmental
function” concept in National League of Cities. It
also has led to the separate requirement that the
challenged federal statute “address matters that
are indisputably ‘attribute[s] of state
sovereignty.’” . . . The opinion did not explain what
aspects of such decisions made them such an
“undoubted attribute,” and the Court since then
has remarked on the uncertain scope of the
concept. The point of the inquiry, however, has
remained to single out particular features of a
State’s internal governance that are deemed to be
intrinsic parts of state sovereignty.
We doubt that courts ultimately can identify
principled constitutional limitations on the scope
of Congress’ Commerce Clause powers over the
States merely by relying on a priori definitions of
state sovereignty. In part, this is because of the
elusiveness of objective criteria for “fundamental”
elements of state sovereignty, a problem we have
witnessed in the search for “traditional
governmental functions.” There is, however, a
more fundamental reason: the sovereignty of the
States is limited by the Constitution itself. A
variety of sovereign powers, for example, are
withdrawn from the States by Article I, §10.
Section 8 of the same Article works an equally
sharp contraction of state sovereignty by
authorizing Congress to exercise a wide range of
legislative powers and (in conjunction with the
Supremacy Clause of Article VI) to displace
contrary state legislation. . . .
The States unquestionably do “retai[n] a

significant measure of sovereign authority.” They
do so, however, only to the extent that the
Constitution has not divested them of their
original powers and transferred those powers to
the Federal Government. . . .
As a result, to say that the Constitution assumes

the continued role of the States is to say little
about the nature of that role. . . . With rare
exceptions, like the guarantee, in Article IV, §3, of
state territorial integrity, the Constitution does not
carve out express elements of state sovereignty
that Congress may not employ its delegated
powers to displace. . . . The power of the Federal
Government is a “power to be respected” as well,
and the fact that the States remain sovereign as to
all powers not vested in Congress or denied them
by the Constitution offers no guidance about
where the frontier between state and federal
power lies. In short, we have no license to employ
freestanding conceptions of state sovereignty
when measuring congressional authority under
the Commerce Clause.
When we look for the States’ “residuary and

inviolable sovereignty,” The Federalist No. 39 (J.
Madison), in the shape of the constitutional
scheme, rather than in predetermined notions of
sovereign power, a different measure of state
sovereignty emerges. Apart from the limitation on
federal authority inherent in the delegated nature
of Congress’ Article I powers, the principal means
chosen by the Framers to ensure the role of the
States in the federal system lies in the structure of
the Federal Government itself. It is no novelty to
observe that the composition of the Federal
Government was designed in large part to protect
the States from overreaching by Congress. The
Framers thus gave the States a role in the
selection both of the Executive and the Legislative
Branches of the Federal Government. The States
were vested with indirect influence over the
House of Representatives and the Presidency by
their control of electoral qualifications and their
role in Presidential elections. U.S. Const., Art. I,
§2, and Art. II, §1. They were given more direct
influence in the Senate, where each State received
equal representation and each Senator was to be
selected by the legislature of his State. Art. I, §3.
The significance attached to the States’ equal
representation in the Senate is underscored by the
prohibition of any constitutional amendment
divesting a State of equal representation without
the State’s consent. Art. V. . . .
The effectiveness of the federal political process in

preserving the States’ interests is apparent even
today in the course of federal legislation. . . . [T]he
States have been able to direct a substantial
proportion of federal revenues into their own
treasuries in the form of general and program-
specific grants in aid. . . . As a result, federal
grants now account for about one-fifth of state and
local government expenditures. The States have
obtained federal funding for such services as
police and fire protection, education, public health
and hospitals, parks and recreation, and
sanitation. . . . The fact that some federal statutes
such as the FLSA extend general obligations to
the States cannot obscure the extent to which the
political position of the States in the federal
system has served to minimize the burdens that
the States bear under the Commerce Clause.
We realize that changes in the structure of the

Federal Government have taken place since 1789,
not the least of which has been the substitution of
popular election of Senators by the adoption of the
Seventeenth Amendment in 1913, and that these
changes may work to alter the influence of the
States in the federal political process.
Nonetheless, against this background, we are
convinced that the fundamental limitation that the
constitutional scheme imposes on the Commerce
Clause to protect the “States as States” is one of
process, rather than one of result. Any substantive
restraint on the exercise of Commerce Clause
powers must find its justification in the procedural
nature of this basic limitation, and it must be
tailored to compensate for possible failings in the
national political process, rather than to dictate a
“sacred province of state autonomy.”
Insofar as the present cases are concerned, then,

we need go no further than to state that we
perceive nothing in the overtime and minimum-
wage requirements of the FLSA, as applied to
SAMTA, that is destructive of state sovereignty or
violative of any constitutional provision. SAMTA
faces nothing more than the same minimum-wage
and overtime obligations that hundreds of
thousands of other employers, public as well as
private, have to meet. . . .
Of course, we continue to recognize that the

States occupy a special and specific position in our
constitutional system and that the scope of
Congress’ authority under the Commerce Clause
must reflect that position. But the principal and
basic limit on the federal commerce power is that
inherent in all congressional action—the built-in
restraints that our system provides through state
participation in federal governmental action. The
political process ensures that laws that unduly
burden the States will not be promulgated. In the
factual setting of these cases the internal
safeguards of the political process have performed
as intended. . . .
We do not lightly overrule recent precedent. We

have not hesitated, however, when it has become
apparent that a prior decision has departed from a
proper understanding of congressional power
under the Commerce Clause. Due respect for the
reach of congressional power within the federal
system mandates that we do so now.
National League of Cities v. Usery (1976) is

overruled. The judgment of the District Court is
reversed, and these cases are remanded to that
court for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE POWELL, with whom

REHNQUIST, and JUSTICE
O’CONNOR join, dissenting.
Whatever effect the Court’s decision may have in
weakening the application of stare decisis, it is
likely to be less important than what the Court has
done to the Constitution itself. A unique feature of
the United States is the federal system of
government guaranteed by the Constitution and
implicit in the very name of our country. Despite
some genuflecting in the Court’s opinion to the
concept of federalism, today’s decision effectively
reduces the Tenth Amendment to meaningless
rhetoric when Congress acts pursuant to the
Commerce Clause. . . .
Today’s opinion does not explain how the States’

role in the electoral process guarantees that
particular exercises of the Commerce Clause
power will not infringe on residual state
sovereignty. Members of Congress are elected
from the various States, but once in office, they
are Members of the Federal Government.
Although the States participate in the Electoral
College, this is hardly a reason to view the
President as a representative of the States’
interest against federal encroachment. . . . The
Court offers no reason to think that this pressure
will not operate when Congress seeks to invoke its
powers under the Commerce Clause,
notwithstanding the electoral role of the States.
The Court apparently thinks that the States’

success at obtaining federal funds for various
projects and exemptions from the obligations of
some federal statutes is indicative of the
“effectiveness of the federal political process in
preserving the States’ interests. . . .” But such
political success is not relevant to the question
whether the political processes are the proper
means of enforcing constitutional limitations. The
fact that Congress generally does not transgress
constitutional limits on its power to reach state
activities does not make judicial review any less
necessary to rectify the cases in which it does do
so. The States’ role in our system of government is
a matter of constitutional law, not of legislative
grace.
More troubling than the logical infirmities in the

Court’s reasoning is the result of its holding, i.e.,
that federal political officials, invoking the
Commerce Clause, are the sole judges of the limits
of their own power. This result is inconsistent with
the fundamental principles of our constitutional
system. See, e.g., The Federalist No. 78
(Hamilton). At least since Marbury v. Madison
(1803), it has been the settled province of the
federal judiciary “to say what the law is” with
respect to the constitutionality of Acts of
Congress. In rejecting the role of the judiciary in
protecting the States from federal overreaching,
the Court’s opinion offers no explanation for
ignoring the teaching of the most famous case in
our history.
JUSTICE O’CONNOR, with

whom JUSTICE POWELL and
JUSTICE REHNQUIST join,
dissenting.
It is worth recalling the . . . passage in McCulloch
v. Maryland (1819) that lies at the source of the
recent expansion of the commerce power. “Let the
constitution,” Chief Justice Marshall said, “and all
means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but
consist with the letter and spirit of the
constitution, are constitutional” [emphasis added].
The spirit of the Tenth Amendment, of course, is
that the States will retain their integrity in a
system in which the laws of the United States are
nevertheless supreme.
It is not enough that the “end be legitimate”; the

means to that end chosen by Congress must not
contravene the spirit of the Constitution. Thus
many of this Court’s decisions acknowledge that
the means by which national power is exercised
must take into account concerns for state
autonomy. . . . The operative language of these
cases varies, but the underlying principle is
consistent: state autonomy is a relevant factor in
assessing the means by which Congress exercises
its powers.
This principle requires the Court to enforce

affirmative limits on federal regulation of the
States to complement the judicially crafted
expansion of the interstate commerce power.
National League of Cities v. Usery represented an
attempt to define such limits. The Court today
rejects National League of Cities and washes its
hands of all efforts to protect the States. In the
process, the Court opines that unwarranted
federal encroachments on state authority are and
will remain “‘horrible possibilities that never
happen in the real world.’” There is ample reason
to believe to the contrary.
The last two decades have seen an unprecedented

growth of federal regulatory activity, as the
majority itself acknowledges. . . . Today, as federal
legislation and coercive grant programs have
expanded to embrace innumerable activities that
were once viewed as local, the burden of
persuasion has surely shifted, and the
extraordinary has become ordinary. For example,
recently the Federal Government has, with this
Court’s blessing, undertaken to tell the States the
age at which they can retire their law enforcement
officers, and the regulatory standards, procedures,
and even the agenda which their utilities
commissions must consider and follow. The
political process has not protected against these
encroachments on state activities, even though
they directly impinge on a State’s ability to make
and enforce its laws. With the abandonment of
National League of Cities, all that stands between
the remaining essentials of state sovereignty and
Congress is the latter’s underdeveloped capacity
for self-restraint.
The problems of federalism in an integrated

national economy are capable of more responsible
resolution than holding that the States as States
retain no status apart from that which Congress
chooses to let them retain. The proper resolution,
I suggest, lies in weighing state autonomy as a
factor in the balance when interpreting the means
by which Congress can exercise its authority on
the States as States. It is insufficient, in assessing
the validity of congressional regulation of a State
pursuant to the commerce power, to ask only
whether the same regulation would be valid if
enforced against a private party. That reasoning,
embodied in the majority opinion, is inconsistent
with the spirit of our Constitution. It remains
relevant that a State is being regulated, as
National League of Cities and every recent case
have recognized. . . .
It has been difficult for this Court to craft bright

lines defining the scope of the state autonomy
protected by National League of Cities. Such
difficulty is to be expected whenever
constitutional concerns as important as federalism
and the effectiveness of the commerce power
come into conflict. Regardless of the difficulty, it is
and will remain the duty of this Court to reconcile
these concerns in the final instance. That the
Court shuns the task today by appealing to the
“essence of federalism” can provide scant comfort
to those who believe our federal system requires
something more than a unitary, centralized
government. I would not shirk the duty
acknowledged by National League of Cities and its
progeny, and I [along with Justice Rehnquist
believe] that this Court will in time again assume
its constitutional responsibility.
After Garcia, with the Tenth Amendment relegated

back to “truism” status, it looked as if this
contentious area of law was, at long last, settled.
National League was but an anomalous blip; Garcia
was now the law of the land. But it was not to remain
so. Garcia proved to be the last major articulation of
cooperative federalism of the post–New Deal period.
Though National League of Cities would not return
in full form, neither would the Court fully abide by
Garcia’s highly deferential approach to
congressional power, nor would it completely discard
the Tenth Amendment enclave.
Return of (a Milder Form of)

Dual Federalism
Given the cyclical history of debates over the proper
form of American federalism, it should come as no
surprise that Garcia did not settle the issue. Justice
Sandra Day O’Connor predicted in Garcia that the
principles of National League of Cities would return
one day “to command the support of a majority of
the Court.” Her forecast proved partially correct.
Change came about largely because of membership

shifts on the Court. In the early 1990s five justices
departed, including two members of the five-justice
Garcia majority, William Brennan and Thurgood
Marshall. In addition, William Rehnquist, a strong
supporter of state authority, became chief justice.
New members, appointed by Presidents Ronald
Reagan and George H. W. Bush, sufficiently changed
the makeup of the Court to prompt observers to look
for a rekindling of the federalism debate.
The first indication that the balance of power had

shifted occurred in New York v. United States
(1992). This decision involved one of the most
important federalism questions of the 1990s: May
the federal government constitutionally command
the states to carry out federal policy? The Court’s
position was announced by Justice O’Connor.
Consider the framework she lays out to resolve
federalism disputes. Is this framework—especially
her use of the Tenth Amendment—compatible with
the Court’s decision in Garcia?
New York v. United States 505 U.S. 144 (1992)
court/505/144.html

Souter, Thomas)
3 (Blackmun, Stevens, White)
OPINION OF THE COURT: O’Connor

DISSENTING OPINIONS: Stevens, White
Facts:
In 1980 Congress passed the Low-Level
Radioactive Waste Policy Act. The law was a
response to the growing problem of the disposal of
radioactive waste generated by private industry,
government, hospitals, and research institutions.
When the act was passed, disposal sites existed
only in Nevada, South Carolina, and Washington,
but these states were increasingly uncomfortable
accepting radioactive waste from the other forty-
seven. Moreover, the existing sites were
approaching capacity. The 1980 statute and its
subsequent 1985 amendments declared each state
responsible for radioactive waste within its
borders and encouraged states to develop disposal
sites or enter into interstate compacts to develop
regional disposal programs. To give the other
states sufficient time to develop alternatives, the
three existing sites were required to continue
accepting out-of-state waste until 1992. The law
allowed the Nevada, South Carolina, and
Washington sites to impose a surcharge when
accepting waste that originated in states that had
not yet complied with the act.
Congress included in the act three types of
incentives to encourage the states to comply with
the law. First were monetary incentives: 25
percent of the surcharges collected at the three
existing disposal sites would be transferred to the
secretary of energy, who would distribute the
funds to states that were complying with the
statute. Second were access incentives: the longer
a state failed to comply with the law, the higher
the surcharge that would be imposed on that
state’s waste brought to the existing sites.
Ultimately, the operational sites could deny
noncomplying states access to the sites. Third
were what the Court deemed the “most severe”
incentives—those that followed from the “take
title” provision of the law: after 1996 any state
that had not developed an in-state disposal site or
had not entered into a regional compact for that
purpose would be required to take title of
radioactive waste generated inside the state and
be fully responsible for it.
In 1990 New York filed suit challenging the

constitutionality of the waste disposal law. The
state claimed that the incentive provisions
violated, among other provisions, the Tenth
Amendment.16 The federal government defended
the law and was supported by a group of states
that were already participating in the program.
Lower courts upheld the law.
16 New York also argued that the act was

inconsistent with the guarantee clause, which
directs the United States to “guarantee to every
State in this Union a Republican Form of
Government.” Recall from Chapter 2 that,
beginning in Luther v. Borden (1849), the Court
seemed to suggest that claims under the
guarantee clause present nonjusticiable political
questions. New York’s attorneys marshaled
scholarly arguments suggesting that under some
circumstances the Court should address questions
following from the guarantee clause. See, for
example, Deborah Jones Merritt, “The Guarantee
Clause and State Autonomy: Federalism for a
Third Century,” Columbia Law Review 88 (1988):
1–78. Justice O’Connor declined to enter this
debate.
Arguments:
For the petitioner, state of New York:
Judicial review is needed under the Tenth
Amendment and the principles of federalism
because the act, particularly the “take title”
provision, imposes unconditional affirmative
obligations on the states and only on the
states.
This case is distinguishable from Garcia v. San
Antonio Metropolitan Transit Authority, in which
the law at issue applied to both private entities
and states and concerned an activity that the
states had undertaken voluntarily. Here, the
act compels the states to act without their
consent, depriving them of their sovereignty.
The states are deprived of the opportunity to
make an independent choice as to whether the
federal funds outweigh the burden of
compliance with the federal scheme.
For the respondents, United
States et al.:
The 1985 act does not require the state to
enact or enforce any federally mandated
regulatory program and does not intrude
impermissibly on state sovereignty. To the
contrary, it leaves the states with a number of
options. New York could contract with a
regional interstate compact to ensure that its
generators can dispose of the state’s waste
elsewhere.
The act was the result of cooperative
federalism, and New York was an active
participant in its drafting and enactment. The
process provided the state ample opportunity
to contribute, and the resulting act generally
conformed to New York’s recommendations.
The state’s claim that the act leaves it
politically powerless is baseless.
This Court’s decisions established that the
Constitution permits some types of federal
directives addressed directly to the states,
especially in areas of intense federal interest.
The serious issue of interstate disposal of
radioactive waste, and the disputes among
states which arose around this issue, qualify as
areas of intense federal interest.
Justice O’Connor Delivered the Opinion of the

Court.
This case implicates one of our Nation’s newest
problems of public policy and perhaps our oldest
question of constitutional law. The public policy
issue involves the disposal of radioactive waste: In
this case, we address the constitutionality of three
provisions of the Low-Level Radioactive Waste
Policy Amendments Act of 1985. The
constitutional question is as old as the
Constitution: It consists of discerning the proper
division of authority between the Federal
Government and the States. We conclude that
while Congress has substantial power under the
Constitution to encourage the States to provide
for the disposal of the radioactive waste generated
within their borders, the Constitution does not
confer upon Congress the ability simply to compel
the States to do so. We therefore find that only
two of the Act’s three provisions at issue are
consistent with the Constitution’s allocation of
power to the Federal Government. . . .
. . . At least as far back as Martin v. Hunter’s

Lessee (1816), the Court has resolved questions
“of great importance and delicacy” in determining
whether particular sovereign powers have been
granted by the Constitution to the Federal
Government or have been retained by the States. .
..
These questions can be viewed in either of two

ways. In some cases, the Court has inquired
whether an Act of Congress is authorized by one
of the powers delegated to Congress in Article I of
the Constitution. See, e.g., McCulloch v. Maryland
(1819). In other cases, the Court has sought to
determine whether an Act of Congress invades the
province of state sovereignty reserved by the
Tenth Amendment. See, e.g., Garcia v. San Antonio
Metropolitan Transit Authority (1985). In a case
like this one, involving the division of authority
between federal and state governments, the two
inquiries are mirror images of each other. If a
power is delegated to Congress in the
Constitution, the Tenth Amendment expressly
disclaims any reservation of that power to the
States; if a power is an attribute of state
sovereignty reserved by the Tenth Amendment, it
is necessarily a power the Constitution has not
conferred on Congress.
It is in this sense that the Tenth Amendment

“states but a truism that all is retained which has
not been surrendered.” United States v. Darby
(1941). . . .
Congress exercises its conferred powers subject to

the limitations contained in the Constitution. Thus,
for example, under the Commerce Clause,
Congress may regulate publishers engaged in
interstate commerce, but Congress is constrained
in the exercise of that power by the First
Amendment. The Tenth Amendment likewise
restrains the power of Congress, but this limit is
not derived from the text of the Tenth Amendment
itself, which, as we have discussed, is essentially a
tautology. Instead, the Tenth Amendment confirms
that the power of the Federal Government is
subject to limits that may, in a given instance,
reserve power to the States. The Tenth
Amendment thus directs us to determine, as in
this case, whether an incident of state sovereignty
is protected by a limitation on an Article I power.
The benefits of this federal structure have been
extensively catalogued elsewhere, but they need
not concern us here. Our task would be the same
even if one could prove that federalism secured no
advantages to anyone. It consists not of devising
our preferred system of government, but of
understanding and applying the framework set
forth in the Constitution.
This framework has been sufficiently flexible over

the past two centuries to allow for enormous
changes in the nature of government. The Federal
Government undertakes activities today that
would have been unimaginable to the Framers in
two senses; first, because the Framers would not
have conceived that any government would
conduct such activities; and second, because the
Framers would not have believed that the Federal
Government, rather than the States, would
assume such responsibilities. Yet the powers
conferred upon the Federal Government by the
Constitution were phrased in language broad
enough to allow for the expansion of the Federal
Government’s role. Among the provisions of the
Constitution that have been particularly important
in this regard, three concern us here.
First, the Constitution allocates to Congress the

power “[t]o regulate Commerce . . . among the
several States.” The volume of interstate
commerce and the range of commonly accepted
objects of government regulation have, however,
expanded considerably in the last 200 years, and
the regulatory authority of Congress has expanded
along with them. As interstate commerce has
become ubiquitous, activities once considered
purely local have come to have effects on the
national economy, and have accordingly come
within the scope of Congress’ commerce power.
Second, the Constitution authorizes Congress “to

pay the Debts and provide for the . . . general
Welfare of the United States.” As conventional
notions of the proper objects of government
spending have changed over the years, so has the
ability of Congress to “fix the terms on which it
shall disburse federal money to the States.” While
the spending power is “subject to several general
restrictions articulated in our cases,” these
restrictions have not been so severe as to prevent
the regulatory authority of Congress from
generally keeping up with the growth of the
federal budget.
The Court’s broad construction of Congress’

power under the Commerce and Spending Clauses
has of course been guided, as it has with respect
to Congress’ power generally, by the
Constitution’s Necessary and Proper Clause,
which authorizes Congress “[t]o make all Laws
which shall be necessary and proper for carrying
into Execution the foregoing Powers.”
Finally, the Constitution provides that “the Laws of

the United States . . . shall be the supreme Law of
the Land . . . any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.” As
the Federal Government’s willingness to exercise
power within the confines of the Constitution has
grown, the authority of the States has
correspondingly diminished to the extent that
federal and state policies have conflicted.
The actual scope of the Federal Government’s
authority with respect to the States has changed
over the years, therefore, but the constitutional
structure underlying and limiting that authority
has not. In the end, just as a cup may be half
empty or half full, it makes no difference whether
one views the question at issue in this case as one
of ascertaining the limits of the power delegated
to the Federal Government under the affirmative
provisions of the Constitution or one of discerning
the core of sovereignty retained by the States
under the Tenth Amendment. Either way, we must
determine whether any of the three challenged
provisions of the Low-Level Radioactive Waste
Policy Amendments Act of 1985 oversteps the
boundary between federal and state authority.
Petitioners do not contend that Congress lacks the

power to regulate the disposal of low level
radioactive waste. Space in radioactive waste
disposal sites is frequently sold by residents of one
State to residents of another. Regulation of the
resulting interstate market in waste disposal is
therefore well within Congress’ authority under
the Commerce Clause. . . . Petitioners contend
only that the Tenth Amendment limits the power
of Congress to regulate in the way it has chosen.
Rather than addressing the problem of waste
disposal by directly regulating the generators and
disposers of waste, petitioners argue, Congress
has impermissibly directed the States to regulate
in this field.
Most of our recent cases interpreting the Tenth

Amendment have concerned the authority of
Congress to subject state governments to
generally applicable laws. The Court’s
jurisprudence in this area has traveled an
unsteady path. . . . See National League of Cities v.
Usery (1976) (state employers are not subject to
Fair Labor Standards Act); Garcia v. San Antonio
Metropolitan Transit Authority (1985) (overruling
National League of Cities). . . . This case presents
no occasion to apply or revisit the holdings of any
of these cases, as this is not a case in which
Congress has subjected a State to the same
legislation applicable to private parties.
This case instead concerns the circumstances

under which Congress may use the States as
implements of regulation; that is, whether
Congress may direct or otherwise motivate the
States to regulate in a particular field or a
particular way. Our cases have established a few
principles that guide our resolution of the issue.
As an initial matter, Congress may not simply

“commandee[r] the legislative processes of the
States by directly compelling them to enact and
enforce a federal regulatory program.” . . .
. . . While Congress has substantial powers to

govern the Nation directly, including in areas of
intimate concern to the States, the Constitution
has never been understood to confer upon
Congress the ability to require the States to
govern according to Congress’ instructions. . . .
Indeed, the question whether the Constitution

should permit Congress to employ state
governments as regulatory agencies was a topic of
lively debate among the Framers. . . .
In the end, the Convention opted for a
Constitution in which Congress would exercise its
legislative authority directly over individuals,
rather than over States. This choice was made
clear to the subsequent state ratifying
conventions. Oliver Ellsworth, a member of the
Connecticut delegation in Philadelphia, explained
the distinction to his State’s convention: “This
Constitution does not attempt to coerce sovereign
bodies, states, in their political capacity. . . . But
this legal coercion singles out the . . . individual.”
Charles Pinckney, another delegate at the
Constitutional Convention, emphasized to the
South Carolina House of Representatives that, in
Philadelphia, “the necessity of having a
government which should at once operate upon
the people, and not upon the states, was
conceived to be indispensable by every delegation
present.” . . .
In providing for a stronger central government,

therefore, the Framers explicitly chose a
Constitution that confers upon Congress the
power to regulate individuals, not States. . . . [T]he
Court has consistently respected this choice. We
have always understood that, even where
Congress has the authority under the Constitution
to pass laws requiring or prohibiting certain acts,
it lacks the power directly to compel the States to
require or prohibit those acts. The allocation of
power contained in the Commerce Clause, for
example, authorizes Congress to regulate
interstate commerce directly; it does not authorize
Congress to regulate state governments’
regulation of interstate commerce. . . .
This is not to say that Congress lacks the ability to
encourage a State to regulate in a particular way,
or that Congress may not hold out incentives to
the States as a method of influencing a State’s
policy choices. Our cases have identified a variety
of methods, short of outright coercion, by which
Congress may urge a State to adopt a legislative
program consistent with federal interests. Two of
these methods are of particular relevance here.
First, under Congress’ spending power, “Congress

may attach conditions on the receipt of federal
funds.” Such conditions must (among other
requirements) bear some relationship to the
purpose of the federal spending; otherwise, of
course, the spending power could render
academic the Constitution’s other grants and
limits of federal authority. Where the recipient of
federal funds is a State, as is not unusual today,
the conditions attached to the funds by Congress
may influence a State’s legislative choices. [South
Dakota v.] Dole was one such case: the Court
found no constitutional flaw in a federal statute
directing the Secretary of Transportation to
withhold federal highway funds from States failing
to adopt Congress’ choice of a minimum drinking
age. Similar examples abound.
Second, where Congress has the authority to

regulate private activity under the Commerce
Clause, we have recognized Congress’ power to
offer States the choice of regulating that activity
according to federal standards or having state law
pre-empted by federal regulation. This
arrangement, which has been termed “a program
of cooperative federalism,” is replicated in
numerous federal statutory schemes [including]
the Clean Water Act . . . (Clean Water Act
“anticipates a partnership between the States and
the Federal Government, animated by a shared
objective”). . . .
By either of these two methods, as by any other

permissible method of encouraging a State to
conform to federal policy choices, the residents of
the State retain the ultimate decision as to
whether or not the State will comply. If a State’s
citizens view federal policy as sufficiently contrary
to local interests, they may elect to decline a
federal grant. If state residents would prefer their
government to devote its attention and resources
to problems other than those deemed important
by Congress, they may choose to have the Federal
Government, rather than the State, bear the
expense of a federally mandated regulatory
program, and they may continue to supplement
that program to the extent state law is not pre-
empted. Where Congress encourages state
regulation, rather than compelling it, state
governments remain responsive to the local
electorate’s preferences; state officials remain
accountable to the people.
By contrast, where the Federal Government

compels States to regulate, the accountability of
both state and federal officials is diminished. If the
citizens of New York, for example, do not consider
that making provision for the disposal of
radioactive waste is in their best interest, they
may elect state officials who share their view. That
view can always be pre-empted under the
Supremacy Clause if it is contrary to the national
view, but, in such a case, it is the Federal
Government that makes the decision in full view of
the public, and it will be federal officials that
suffer the consequences if the decision turns out
to be detrimental or unpopular. But where the
Federal Government directs the States to
regulate, it may be state officials who will bear the
brunt of public disapproval, while the federal
officials who devised the regulatory program may
remain insulated from the electoral ramifications
of their decision. Accountability is thus diminished
when, due to federal coercion, elected state
officials cannot regulate in accordance with the
views of the local electorate in matters not
preempted by federal regulation.
With these principles in mind, we turn to the three

challenged provisions of the Low-Level
Radioactive Waste Policy Amendments Act of
1985. . . .
The Act comprises three sets of “incentives” for

the States to provide for the disposal of low level
radioactive waste generated within their borders.
We consider each in turn. . . .
[Justice O’Connor upheld the first set of incentives

—the monetary incentives—as within
congressional authority under the commerce and
spending clauses. She wrote, “Because the first
set of incentives is supported by affirmative
constitutional grants of power to Congress, it is
not inconsistent with the Tenth Amendment.” She
also upheld the access incentives because they fall
within Congress’s commerce power and “do not
intrude on the sovereignty reserved to the States
by the Tenth Amendment.” Justice O’Connor
wrote: “The affected States are not compelled by
Congress to regulate, because any burden caused
by a State’s refusal to regulate will fall on those
who generate waste and find no outlet for its
disposal, rather than on the State as a sovereign.
A State whose citizens do not wish it to attain the
Act’s milestones may devote its attention and its
resources to issues its citizens deem more worthy;
the choice remains at all times with the residents
of the State, not with Congress. The State need
not expend any funds, or participate in any federal
program, if local residents do not view such
expenditures or participation as worthwhile. Nor
must the State abandon the field if it does not
accede to federal direction; the State may
continue to regulate the generation and disposal
of radioactive waste in any manner its citizens see
fit.” She then moved to the take-title provision.]
The take-title provision is of a different character.

This third so-called “incentive” offers States, as an
alternative to regulating pursuant to Congress’
direction, the option of taking title to and
possession of the low level radioactive waste
generated within their borders and becoming
liable for all damages waste generators suffer as a
result of the States’ failure to do so promptly. In
this provision, Congress has crossed the line
distinguishing encouragement from coercion. . . .
The take-title provision offers state governments a

“choice” of either accepting ownership of waste or
regulating according to the instructions of
Congress. Respondents do not claim that the
Constitution would authorize Congress to impose
either option as a freestanding requirement. On
one hand, the Constitution would not permit
Congress simply to transfer radioactive waste
from generators to state governments. Such a
forced transfer, standing alone, would in principle
be no different than a congressionally compelled
subsidy from state governments to radioactive
waste producers. The same is true of the provision
requiring the States to become liable for the
generators’ damages. Standing alone, this
provision would be indistinguishable from an Act
of Congress directing the States to assume the
liabilities of certain state residents. Either type of
federal action would “commandeer” state
governments into the service of federal regulatory
purposes, and would, for this reason, be
inconsistent with the Constitution’s division of
authority between federal and state governments.
On the other hand, the second alternative held out
to state governments—regulating pursuant to
Congress’ direction—would, standing alone,
present a simple command to state governments
to implement legislation enacted by Congress. . . .
[T]he Constitution does not empower Congress to
subject state governments to this type of
instruction.
Because an instruction to state governments to

take title to waste, standing alone, would be
beyond the authority of Congress, and because a
direct order to regulate, standing alone, would
also be beyond the authority of Congress, it
follows that Congress lacks the power to offer the
States a choice between the two. Unlike the first
two sets of incentives, the take-title incentive does
not represent the conditional exercise of any
congressional power enumerated in the
Constitution. In this provision, Congress has not
held out the threat of exercising its spending
power or its commerce power; it has instead held
out the threat, should the States not regulate
according to one federal instruction, of simply
forcing the States to submit to another federal
instruction. A choice between two
unconstitutionally coercive regulatory techniques
is no choice at all. Either way, “the Act
commandeers the legislative processes of the
enforce a federal regulatory program,” an
outcome that has never been understood to lie
within the authority conferred upon Congress by
the Constitution.
Respondents emphasize the latitude given to the

States to implement Congress’ plan. The Act
enables the States to regulate pursuant to
Congress’ instructions in any number of different
ways. States may avoid taking title by contracting
with sited regional compacts, by building a
disposal site alone or as part of a compact, or by
permitting private parties to build a disposal site.
States that host sites may employ a wide range of
designs and disposal methods, subject only to
broad federal regulatory limits. This line of
reasoning, however, only underscores the critical
alternative a State lacks: a State may not decline
to administer the federal program. No matter
which path the State chooses, it must follow the
direction of Congress.
The take-title provision appears to be unique. No

other federal statute has been cited which offers a
state government no option other than that of
implementing legislation enacted by Congress.
Whether one views the take-title provision as lying
outside Congress’ enumerated powers or as
infringing upon the core of state sovereignty
reserved by the Tenth Amendment, the provision
is inconsistent with the federal structure of our
Government established by the Constitution. . . .
. . . [T]he Constitution protects us from our own

best intentions: it divides power among sovereigns
and among branches of government precisely so
that we may resist the temptation to concentrate
power in one location as an expedient solution to
the crisis of the day. The shortage of disposal sites
for radioactive waste is a pressing national
problem, but a judiciary that licensed
extraconstitutional government with each issue of
comparable gravity would, in the long run, be far
worse.
States are not mere political subdivisions of the

United States. State governments are neither
regional offices nor administrative agencies of the
Federal Government. The positions occupied by
state officials appear nowhere on the Federal
Government’s most detailed organizational chart.
The Constitution instead “leaves to the several
States a residuary and inviolable sovereignty,”
reserved explicitly to the States by the Tenth
Amendment.
Whatever the outer limits of that sovereignty may

be, one thing is clear: the Federal Government
may not compel the States to enact or administer
a federal regulatory program. The Constitution . . .
does not . . . authorize Congress simply to direct
the States to provide for the disposal of the
radioactive waste generated within their borders.
While there may be many constitutional methods
of achieving regional self-sufficiency in radioactive
waste disposal, the method Congress has chosen
is not one of them. The judgment of the Court of
Appeals is accordingly
Affirmed in part and reversed in part.

JUSTICE BLACKMUN and
JUSTICE STEVENS join,
concurring in part and
dissenting in part.
Curiously absent from the Court’s analysis is any
effort to place the take-title provision within the
overall context of the legislation. As . . . this
opinion suggests, the 1980 and 1985 statutes
were enacted against a backdrop of national
concern over the availability of additional low-
level radioactive waste disposal facilities.
Congress could have pre-empted the field by
directly regulating the disposal of this waste
pursuant to its powers under the Commerce and
Spending Clauses, but instead it unanimously
assented to the States’ request for congressional
ratification of agreements to which they had
acceded. As the floor statements of Members of
Congress reveal, the States wished to take the
lead in achieving a solution to this problem and
agreed among themselves to the various
incentives and penalties implemented by Congress
to ensure adherence to the various deadlines and
goals. The chief executives of the States proposed
this approach, and I am unmoved by the Court’s
vehemence in taking away Congress’ authority to
sanction a recalcitrant unsited State now that
New York has reaped the benefits of the sited
States’ concessions. . . .
I am convinced that, seen as a term of an

agreement entered into between the several
States, this measure proves to be less
constitutionally odious than the Court opines. . . .
I would also submit, in this connection, that the

Court’s attempt to carve out a doctrinal distinction
for statutes that purport solely to regulate state
activities is especially unpersuasive after Garcia.
It is true that, in that case, we considered whether
a federal statute of general applicability—the Fair
Labor Standards Act—applied to state
transportation entities, but our most recent
statements have explained the appropriate
analysis in a more general manner. Just last Term,
for instance, Justice O’Connor wrote . . . that “this
Court in Garcia has left primarily to the political
process the protection of the States against
intrusive exercises of Congress’ Commerce Clause
powers.”
. . . [T]herefore, the more appropriate analysis

should flow from Garcia, even if this case does not
involve a congressional law generally applicable to
both States and private parties. In Garcia, we
stated the proper inquiry: “[W]e are convinced
that the fundamental limitation that the
constitutional scheme imposes on the Commerce
Clause to protect the ‘States as States’ is one of
process, rather than one of result. Any substantive
restraint on the exercise of Commerce Clause
powers must find its justification in the procedural
nature of this basic limitation, and it must be
tailored to compensate for possible failings in the
national political process, rather than to dictate a
‘sacred province of state autonomy.’” Where it
addresses this aspect of respondents’ argument,
the Court tacitly concedes that a failing of the
political process cannot be shown in this case,
because it refuses to rebut the unassailable
arguments that the States were well able to look
after themselves in the legislative process that
culminated in the 1985 Act’s passage. Indeed,
New York acknowledges that its “congressional
delegation participated in the drafting and
enactment of both the 1980 and the 1985 Acts.”
The Court rejects this process-based argument by
resorting to generalities and platitudes about the
purpose of federalism being to protect individual
rights.
Ultimately, I suppose, the entire structure of our

federal constitutional government can be traced to
an interest in establishing checks and balances to
prevent the exercise of tyranny against
individuals. But these fears seem extremely far
distant to me in a situation such as this. We face a
crisis of national proportions in the disposal of
low-level radioactive waste, and Congress has
acceded to the wishes of the States by permitting
local decisionmaking, rather than imposing a
solution from Washington. New York itself
participated and supported passage of this
legislation at both the gubernatorial and federal
representative levels, and then enacted state laws
specifically to comply with the deadlines and
timetables agreed upon by the States in the 1985
Act. For me, the Court’s civics lecture has a
decidedly hollow ring at a time when action,
rather than rhetoric, is needed to solve a national
problem.
In New York v. United States the Supreme Court
once again explicated the delicate relationship
between the federal government and the states, a
relationship that becomes more complex with the
growth of problems as serious as the disposal of
nuclear waste. The majority clearly stated that the
Constitution does not allow the federal government
to command the states to pass legislation to
implement federal policy. The federal government
may provide incentives for the states to act, but the
constitutional division of authority between the
general government and the various states is
offended when the states are compelled to act. The
decision also indicated the presence of a majority
concerned with preserving the traditional role of the
states.
Still, O’Connor’s opinion was not a complete return

to the logic of National League of Cities. Rather,
O’Connor gave a narrow reading to Garcia, as
Justice Byron White’s dissent suggests. Under her
interpretation, Garcia simply held the states to the
same standards as private employers. But when a
problem is “uniquely governmental,” as is the
disposal of radioactive waste, the Tenth Amendment
prohibits Congress from compelling the states to act,
from “commandeering state legislatures.”
Seen in this way, the Court’s decision in New York

signaled that those sympathetic to preserving the
traditional role of the states now formed a majority.
Five years later the same majority ruled when the
Court handed down its decision in Printz v. United
States (1997), another case concerning the proper
relationship between the central government and
the states.
The lawsuit involved the Brady Handgun Violence

Prevention Act, a gun control act that Congress
passed in 1993. A provision in that statute obligated
local law enforcement officials to play a role in the
law’s implementation. The case raised a question
related to the one addressed in New York: May
Congress compel local political officials to carry out
federal legislation?
Printz v. United States 521 U.S. 898 (1997)
court/521/898.html


Thomas)
OPINION OF THE COURT: Scalia

CONCURRING OPINIONS: O’Connor,
Thomas
DISSENTING OPINIONS: Breyer, Souter,
Stevens
Facts:
The Gun Control Act of 1968 forbids firearms
dealers to transfer firearms to convicted felons,
unlawful users of controlled substances, fugitives
from justice, persons judged to be mentally
defective, persons dishonorably discharged from
the military, persons who have renounced their
citizenship, and persons who have committed
certain acts of domestic violence. In 1993
Congress amended the Gun Control Act with the
Brady Handgun Violence Prevention Act. This act
required the attorney general to establish, by
November 30, 1998, a national database allowing
for an instant background check on anyone
attempting to buy a handgun. In the interim, the
Brady Act allowed gun dealers to sell firearms to
buyers who already possessed state handgun
permits or who lived in states with existing instant
background check systems.
In states where these two alternatives were not

possible, the act required certain actions by the
local chief law enforcement officer (CLEO). It
mandated that CLEOs receive firearm purchase
forms from gun dealers and make a reasonable
effort within five business days to verify that any
proposed sale was not to a person unqualified
under the law. Essentially, the act required local
CLEOs to conduct background checks on all
potential gun purchasers. When CLEOs
determined that any particular proposed sale
would violate the law, they were required upon
request to submit a written report to the proposed
purchaser stating the reasons for that
determination. If CLEOs found no reason for
objecting to a sale, they were required to destroy
all records pertaining to it. These mandated
responsibilities were to terminate in 1998 once
the federal instant background check program
became operative.
Jay Printz, sheriff of Ravalli County, Montana, and

Richard Mack, sheriff of Graham County, Arizona,
filed separate suits challenging the
constitutionality of the Brady Act’s interim
provisions. They argued that the federal
government had no authority to command state or
local officials to administer a federal program. In
each case the district court declared the act
unconstitutional to the extent that it forced state
officers to carry out federal policies. Other
provisions of the law were left untouched. The
court of appeals disagreed, finding no provisions
of the law to violate the Constitution. The
Supreme Court accepted the cases for review.
Although the decision immediately affected a
temporary provision that was scheduled to expire
in 1998, it involved a meaningful constitutional
issue.
Arguments:
For the petitioner, Jay Printz, sheriff of
Ravalli County:
New York v. United States established that
Congress cannot order states to enact or
administer a federal regulatory program
without violating the Tenth Amendment.
Historically, the authority for defining and
enforcing criminal laws lies with the states.
Criminal law enforcement has been a
fundamental element of state sovereignty.
Drafting state employees for federal
enforcement duty is unprecedented.
The commerce clause cannot justify
conscripting local CLEOs into federal law
enforcement, because CLEOs are not engaged
in or connected to interstate commerce.
Attempts to argue that regulation will
ultimately affect commerce and therefore is
justifiable under the commerce clause have
been struck down in earlier cases.
Article II of the Constitution provides that the
president, not CLEOs, shall faithfully execute
the laws. The careful system of checks and
balances in the U.S. system of government is
disrupted by having local CLEOs enforce
federal laws, without any of the safeguards
against abuse of power that were built into the
Constitution.
James S. Brady, former press secretary for

President Reagan, who was wounded during an
assassination attempt on the president, listens as
President Bill Clinton speaks before signing the
Brady Bill gun control legislation in 1993.
REUTERS/Gary Hershorn
Richard Mack, sheriff of Graham County, Arizona,

who, along with Sheriff Jay Printz of Ravalli
County, Montana, challenged the constitutionality
of those provisions of the Brady Bill that required
local law enforcement officials to conduct
background checks on prospective handgun
purchasers.
Stephanie Sinclair/Redux

States:
This case is distinguishable from New York v.
United States. In that case, Congress
commandeered the states’ legislative process
by requiring the states to legislate their own
solution. In this case, the federal government is
asking only for local assistance in
implementing a comprehensive federal policy.
Congress may find it necessary and proper to
enlist local officials in limited, non-policy-
making aspects of the implementation of
federal law. Congress has done this in the past,
beginning with the First Congress requiring
court clerks to help register aliens seeking
citizenship.
The act does not pose substantial burdens on
the states or the CLEOs, so it does not threaten
the separate and independent existence of the
states. The act imposes only temporary and
minimal duties on local officeholders and
grants them discretion in determining how to
meet those responsibilities.
Because the regulated activity is legitimately
subject to federal regulation under the
commerce clause, the only question before the
Court is whether the means chosen are
reasonably related to the ends. Petitioner has
not claimed that the means are an irrational
means to the ends.
Justice Scalia Delivered the Opinion of the

Court.
The question presented in these cases is whether

certain interim provisions of the Brady Handgun
Violence Prevention Act, commanding state and
local law enforcement officers to conduct
background checks on prospective handgun
purchasers and to perform certain related tasks,
violate the Constitution. . . .
. . . [T]he Brady Act purports to direct state law

enforcement officers to participate, albeit only
temporarily, in the administration of a federally
enacted regulatory scheme. . . .
The petitioners here object to being pressed into
federal service, and contend that congressional
action compelling state officers to execute federal
laws is unconstitutional. Because there is no
constitutional text speaking to this precise
question, the answer to the CLEOs’ challenge
must be sought in historical understanding and
practice, in the structure of the Constitution, and
in the jurisprudence of this Court. . . .
Petitioners contend that compelled enlistment of

state executive officers for the administration of
federal programs is, until very recent years at
least, unprecedented. The Government contends,
to the contrary, that “the earliest Congresses
enacted statutes that required the participation of
state officials in the implementation of federal
laws.” . . .
The Government’s contention demands our careful

consideration, since early congressional
enactments “provid[e] ‘contemporaneous and
weighty evidence’ of the Constitution’s meaning.”
. . . Conversely if, as petitioners contend, earlier
Congresses avoided use of this highly attractive
power, we would have reason to believe that the
power was thought not to exist. . . .
Not only do the enactments of the early

Congresses, as far as we are aware, contain no
evidence of an assumption that the Federal
Government may command the States’ executive
power in the absence of a particularized
constitutional authorization, they contain some
indication of precisely the opposite assumption.
On September 23, 1789—the day before its
proposal of the Bill of Rights—the First Congress
enacted a law aimed at obtaining state assistance
of the most rudimentary and necessary sort for
the enforcement of the new Government’s laws:
the holding of federal prisoners in state jails at
federal expense. Significantly, the law issued not a
command to the States’ executive, but a
recommendation to their legislatures. Congress
“recommended to the legislatures of the several
States to pass laws, making it expressly the duty
of the keepers of their gaols [jails], to receive and
safe keep therein all prisoners committed under
the authority of the United States.” . . .
In addition to early legislation, the Government

also appeals to other sources we have usually
regarded as indicative of the original
understanding of the Constitution. It points to
portions of The Federalist which . . . [state] that
Congress will probably “make use of the State
officers and State regulations, for collecting”
federal taxes, The Federalist No. 36 (A. Hamilton),
and predicted that “the eventual collection [of
internal revenue] under the immediate authority
of the Union, will generally be made by the
officers, and according to the rules, appointed by
the several States” (J. Madison). The Government
also invokes the Federalist’s more general
observations that the Constitution would “enable
the [national] government to employ the ordinary
magistracy of each [State] in the execution of its
laws,” No. 27 (A. Hamilton), and that it was
“extremely probable that in other instances,
particularly in the organization of the judicial
power, the officers of the States will be clothed in
the correspondent authority of the Union,” No. 45
(J. Madison). But none of these statements
necessarily implies—what is the critical point here
—that Congress could impose these
responsibilities without the consent of the States.
They appear to rest on the natural assumption
that the States would consent to allowing their
officials to assist the Federal Government, an
assumption proved correct by the extensive
mutual assistance the States and Federal
Government voluntarily provided one another in
the early days of the Republic, including voluntary
federal implementation of state law. . . .
. . . We turn next to consideration of the structure

of the Constitution, to see if we can discern among
its “essential postulate[s]” a principle that controls
the present cases. . . .
It is incontestable that the Constitution

established a system of “dual sovereignty.”
Although the States surrendered many of their
powers to the new Federal Government, they
retained “a residuary and inviolable sovereignty,”
The Federalist No. 39 (J. Madison). . . . Residual
state sovereignty was also implicit, of course, in
the Constitution’s conferral upon Congress of not
all governmental powers, but only discrete,
enumerated ones, which implication was rendered
express by the Tenth Amendment’s assertion that
“[t]he powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or
to the people.”
The Framers’ experience under the Articles of

Confederation had persuaded them that using the
States as the instruments of federal governance
was both ineffectual and provocative of federal-
state conflict. . . . [T]he Framers rejected the
concept of a central government that would act
upon and through the States, and instead
designed a system in which the state and federal
governments would exercise concurrent authority
over the people—who were, in Hamilton’s words,
“the only proper objects of government,” The
Federalist No. 15. . . . The great innovation of this
design was that our citizens would have two
political capacities, one state and one federal,
each protected from incursion by the other. . . .
The Constitution thus contemplates that a State’s
government will represent and remain
accountable to its own citizens. As Madison
expressed it: “[T]he local or municipal authorities
form distinct and independent portions of the
supremacy, no more subject, within their
respective spheres, to the general authority than
the general authority is subject to them, within its
own sphere.” The Federalist No. 39.
This separation of the two spheres is one of the

Constitution’s structural protections of liberty.
“Just as the separation and independence of the
coordinate branches of the Federal Government
serve to prevent the accumulation of excessive
power in any one branch, a healthy balance of
power between the States and the Federal
Government will reduce the risk of tyranny and
abuse from either front.” . . . To quote Madison
once again:
In the compound republic of America, the
power surrendered by the people is first
divided between two distinct governments,
and then the portion allotted to each
subdivided among distinct and separate
departments. Hence a double security arises
to the rights of the people. The different
governments will control each other, at the
same time that each will be controlled by
itself. The Federalist No. 51
We have thus far discussed the effect that federal

control of state officers would have upon the first
element of the “double security” alluded to by
Madison: the division of power between State and
Federal Governments. It would also have an effect
upon the second element: the separation and
equilibration of powers between the three
branches of the Federal Government itself. The
Constitution does not leave to speculation who is
to administer the laws enacted by Congress; the
President, it says, “shall take Care that the Laws
be faithfully executed,” personally and through
officers whom he appoints. . . . The Brady Act
effectively transfers this responsibility to
thousands of CLEOs in the 50 States, who are left
to implement the program without meaningful
Presidential control (if indeed meaningful
Presidential control is possible without the power
to appoint and remove). The insistence of the
Framers upon unity in the Federal Executive—to
insure both vigor and accountability—is well
known. See The Federalist No. 70 (A. Hamilton).
That unity would be shattered, and the power of
the President would be subject to reduction, if
Congress could act as effectively without the
President as with him, by simply requiring state
officers to execute its laws.
The dissent of course resorts to the last, best hope

of those who defend ultra vires congressional
action, the Necessary and Proper Clause. It
reasons that the power to regulate the sale of
handguns under the Commerce Clause, coupled
with the power to “make all Laws which shall be
necessary and proper for carrying into Execution
the foregoing Powers,” conclusively establishes
the Brady Act’s constitutional validity, because the
Tenth Amendment imposes no limitations on the
exercise of delegated powers but merely prohibits
the exercise of powers “not delegated to the
United States.” What destroys the dissent’s
Necessary and Proper Clause argument, however,
is not the Tenth Amendment but the Necessary
and Proper Clause itself. When a “La[w] . . . for
carrying into Execution” the Commerce Clause
violates the principle of state sovereignty reflected
in the various constitutional provisions we
mentioned earlier it is not a “La[w] . . . proper for
carrying into Execution the Commerce Clause,”
and is thus, in the words of The Federalist,
“merely [an] ac[t] of usurpation” which
“deserve[s] to be treated as such.” The Federalist
No. 33 (A. Hamilton).
Finally, and most conclusively in the present

litigation, we turn to the prior jurisprudence of
this Court. . . .
. . . In New York [v. United States we held that]

“The Federal Government . . . may not compel the
States to enact or administer a federal regulatory
program.” . . .
The Government contends that New York is

distinguishable on the following ground: unlike
the “take title” provisions invalidated there, the
background check provision of the Brady Act does
not require state legislative or executive officials
to make policy, but instead issues a final directive
to state CLEOs. . . .
The Government’s distinction between “making”

law and merely “enforcing” it, between
“policymaking” and mere “implementation,” is an
interesting one. . . . [But] [e]xecutive action that
has utterly no policymaking component is rare,
particularly at an executive level as high as a
jurisdiction’s chief law enforcement officer. Is it
really true that there is no policymaking involved
in deciding, for example, what “reasonable
efforts” shall be expended to conduct a
background check? . . .
The Government also maintains that requiring

state officers to perform discrete, ministerial tasks
specified by Congress does not violate the
principle of New York because it does not diminish
the accountability of state or federal officials. This
argument fails even on its own terms. By forcing
state governments to absorb the financial burden
of implementing a federal regulatory program,
Members of Congress can take credit for “solving”
problems without having to ask their constituents
to pay for the solutions with higher federal taxes.
And even when the States are not forced to absorb
the costs of implementing a federal program, they
are still put in the position of taking the blame for
its burdensomeness and for its defects. . . .
We held in New York [v. United States] that

Congress cannot compel the States to enact or
enforce a federal regulatory program. Today we
hold that Congress cannot circumvent that
prohibition by conscripting the State’s officers
directly. The Federal Government may neither
issue directives requiring the States to address
particular problems, nor command the States’
officers, or those of their political subdivisions, to
administer or enforce a federal regulatory
program. [S]uch commands are fundamentally
incompatible with our constitutional system of
dual sovereignty. Accordingly, the judgment of the
Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
JUSTICE THOMAS, concurring.

In my “revisionist” view, the Federal Government’s
authority under the Commerce Clause, which
merely allocates to Congress the power “to
regulate Commerce . . . among the several states,”
does not extend to the regulation of wholly
intrastate, point of sale transactions. Absent the
underlying authority to regulate the intrastate
transfer of firearms, Congress surely lacks the
corollary power to impress state law enforcement
officers into administering and enforcing such
regulations. . . .
Even if we construe Congress’ authority to

regulate interstate commerce to encompass those
intrastate transactions that “substantially affect”
interstate commerce, I question whether Congress
can regulate the particular transactions at issue
here. The Constitution, in addition to delegating
certain enumerated powers to Congress, places
whole areas outside the reach of Congress’
regulatory authority. The First Amendment, for
example, is fittingly celebrated for preventing
Congress from “prohibiting the free exercise” of
religion or “abridging the freedom of speech.” The
Second Amendment similarly appears to contain
an express limitation on the government’s
authority. . . . This Court has not had recent
occasion to consider the nature of the substantive
right safeguarded by the Second Amendment. If,
however, the Second Amendment is read to confer
a personal right to “keep and bear arms,” a
colorable argument exists that the Federal
Government’s regulatory scheme, at least as it
pertains to the purely intrastate sale or possession
of firearms, runs afoul of that Amendment’s
protections.
JUSTICE STEVENS, with whom

JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE
BREYER join, dissenting.
When Congress exercises the powers delegated to
it by the Constitution, it may impose affirmative
obligations on executive and judicial officers of
state and local governments as well as ordinary
citizens. This conclusion is firmly supported by the
text of the Constitution, the early history of the
Nation, decisions of this Court, and a correct
understanding of the basic structure of the
Federal Government.
These cases do not implicate the more difficult

questions associated with congressional coercion
of state legislatures addressed in New York v.
United States (1992). Nor need we consider the
wisdom of relying on local officials rather than
federal agents to carry out aspects of a federal
program, or even the question whether such
officials may be required to perform a federal
function on a permanent basis. The question is
whether Congress, acting on behalf of the people
of the entire Nation, may require local law
enforcement officers to perform certain duties
during the interim needed for the development of
a federal gun control program. . . .
The text of the Constitution provides a sufficient

basis for a correct disposition of this case.
Article I, §8, grants the Congress the power to

regulate commerce among the States. Putting to
one side the revisionist views expressed by Justice
Thomas in his concurring opinion in United States
v. Lopez (1995), there can be no question that that
provision adequately supports the regulation of
commerce in handguns effected by the Brady Act.
Moreover, the additional grant of authority in that
section of the Constitution “[t]o make all Laws
which shall be necessary and proper for carrying
into Execution the foregoing Powers” is surely
adequate to support the temporary enlistment of
local police officers in the process of identifying
persons who should not be entrusted with the
possession of handguns. In short, the affirmative
delegation of power in Article I provides ample
authority for the congressional enactment.
Unlike the First Amendment, which prohibits the

enactment of a category of laws that would
otherwise be authorized by Article I, the Tenth
Amendment imposes no restriction on the exercise
of delegated powers. . . .
The Amendment confirms the principle that the

powers of the Federal Government are limited to
those affirmatively granted by the Constitution,
but it does not purport to limit the scope or the
effectiveness of the exercise of powers that are
delegated to Congress. Thus, the Amendment
provides no support for a rule that immunizes
local officials from obligations that might be
imposed on ordinary citizens. . . .
There is not a clause, sentence, or paragraph in

the entire text of the Constitution of the United
States that supports the proposition that a local
police officer can ignore a command contained in
a statute enacted by Congress pursuant to an
express delegation of power enumerated in Article
I. . . .
. . . [T]he Court’s reasoning [also] contradicts New

York v. United States.
That decision squarely approved of cooperative

federalism programs, designed at the national
level but implemented principally by state
governments. New York disapproved of a
particular method of putting such programs into
place, not the existence of federal programs
implemented locally. . . .
The provision of the Brady Act that crosses the

Court’s newly defined constitutional threshold is
more comparable to a statute requiring local
police officers to report the identity of missing
children to the Crime Control Center of the
Department of Justice than to an offensive federal
command to a sovereign state. If Congress
believes that such a statute will benefit the people
of the Nation, and serve the interests of
cooperative federalism better than an enlarged
federal bureaucracy, we should respect both its
policy judgment and its appraisal of its
constitutional power.
Accordingly, I respectfully dissent.
JUSTICE SOUTER, dissenting.

In deciding these cases, which I have found closer
than I had anticipated, it is The Federalist that
finally determines my position. I believe that the
most straightforward reading of No. 27 is
authority for the Government’s position here, and
that this reading is both supported by No. 44 and
consistent with Nos. 36 and 45.
Hamilton in No. 27 first notes that because the

new Constitution would authorize the National
Government to bind individuals directly through
national law, it could “employ the ordinary
magistracy of each [State] in the execution of its
laws.” Were he to stop here, he would not
necessarily be speaking of anything beyond the
possibility of cooperative arrangements by
agreement. But he then addresses the combined
effect of the proposed Supremacy Clause, and
state officers’ oath requirement, and he states that
“the Legislatures, Courts and Magistrates of the
respective members will be incorporated into the
operations of the national government, as far as
its just and constitutional authority extends; and
will be rendered auxiliary to the enforcement of its
laws.” The natural reading of this language is not
merely that the officers of the various branches of
state governments may be employed in the
performance of national functions; Hamilton says
that the state governmental machinery “will be
incorporated” into the Nation’s operation, and
because the “auxiliary” status of the state officials
will occur because they are “bound by the sanctity
of an oath,” I take him to mean that their auxiliary
functions will be the products of their obligations
thus undertaken to support federal law, not of
their own, or the States,’ unfettered choices.
Madison in No. 44 supports this reading in his

commentary on the oath requirement. He asks
why state magistrates should have to swear to
support the National Constitution, when national
officials will not be required to oblige themselves
to support the state counterparts. His answer is
that national officials “will have no agency in
carrying the State Constitutions into effect. The
members and officers of the State Governments,
on the contrary, will have an essential agency in
giving effect to the Federal Constitution.” . . .
In the light of all these passages, I cannot

persuade myself that the statements from No. 27
speak of anything less than the authority of the
National Government, when exercising an
otherwise legitimate power (the commerce power,
say), to require state “auxiliaries” to take
appropriate action.
Because of the scheduled date for the national

background check system to become operative,
Printz had little impact on gun control. The decision,
however, gave a clear indication of the Rehnquist
Court’s position on federalism. Five conservative
justices, all appointees of Republican presidents,
Ronald Reagan and George H. W. Bush, expressed
their commitment to maintaining the view that the
states are not merely administrative units of the
federal government. Justice Antonin Scalia, for the
majority, invoked the term dual sovereignty to
describe the constitutionally mandated division of
power between the central government and the
states. Justice John Paul Stevens, writing for the four
liberal justices in dissent, explicitly endorsed
“cooperative federalism.”
What of the Rehnquist Court’s successor, the

Roberts Court? Although significant personnel
changes have occurred since New York and Printz,
the Court’s federalism jurisprudence seems to be
relatively stable. For example, the Court in National
Federation of Independent Business v. Sebelius
(2012) (excerpted in Chapters 7 and 8) struck down
a provision of the Patient Protection and Affordable
Care Act of 2010 (the federal health-care law widely
known as “Obamacare”) judged to impose coercive
financial pressure on the states to adopt expanded
Medicaid coverage. As Chief Justice John Roberts
wrote, “Congress has no authority to order the
States to regulate according to its instructions.
Congress may offer the States grants and require
the States to comply with accompanying conditions,
but the States must have a genuine choice whether
to accept the offer. The States are given no such
choice in this case: They must either accept a basic
change in the nature of Medicaid, or risk losing all
Medicaid funding.” Though Roberts did not cite the
Tenth Amendment, his opinion echoed the claim of
the challenging states: that the threatened loss of all
federal Medicaid funding violated the Tenth
Amendment by coercing them into complying with
the Medicaid expansion.
The Court’s decisions that developed its

“commandeering” doctrine clearly established that
Congress may not mandate or coerce states to enact
federally preferred policies. Nor may Congress
require state and local officers to administer or
enforce federal laws. But is the reverse also true?
Can the federal government constitutionally prohibit
the states from legislating contrary to the wishes of
the federal government? The Court addressed this
issue in Murphy v. National Collegiate Athletic
Association (2018).
Murphy v. National Collegiate Athletic Association
584 U.S. _____ (2018)
476.html

Vote: 7 (Alito, Breyer, Gorsuch, Kagan, Kennedy,

Roberts, Thomas)
2 (Ginsburg, Sotomayor)
OPINION OF THE COURT: Alito

CONCURRING OPINION: Thomas
DISSENTING IN PART: Breyer
DISSENTING OPINION: Ginsburg
Facts:
At the beginning of the twentieth century
gambling was generally prohibited throughout the
United States. Over the years public opinion and
public policy on gambling has evolved gradually.
Many states legalized pari-mutuel betting, casinos,
or state lotteries. More controversial, however,
was the practice of betting on sporting events.
Seeing potential dangers associated with this
activity, Congress passed the Professional and
Amateur Sports Protection Act of 1992 (PASPA),
which made it unlawful for a state to authorize,
operate, or sponsor gambling on competitive
sporting events. The law allowed the U.S. attorney
general, as well as professional and amateur
sports organizations, to take civil action against
any state that violated the statute.
Special PASPA provisions exempted four states

where sports betting was permitted at the time
the law was passed and allowed New Jersey to
initiate such wagering in Atlantic City if the state
did so within one year of the act’s effective date.
New Jersey initially declined to exercise that
option, retaining its long-standing legislative ban
on sports gambling. Illegal wagering, however,
thrived. Such wagering involved massive amounts
of money, all unregulated and untaxed by the
state. In response, New Jersey voters in 2011
approved a state constitutional amendment
allowing the legislature to authorize regulated
wagering on competitive athletics. The legislature
subsequently took the initial steps necessary to
permit such gambling by repealing the previous
state law banning sports betting. The law was
challenged by the National Collegiate Athletic
Association, Major League Baseball, the National
Football League, the National Basketball
Association, and the National Hockey League as a
violation of PASPA. These organizations
traditionally opposed gambling on competitive
athletics because of the perceived danger to the
integrity of their sports. The federal government
supported their challenge. New Jersey defended
its actions, attacking PASPA as unconstitutionally
depriving the state of its sovereign power to
repeal previously enacted laws. The federal
district and appeals courts ruled in favor of the
sports organizations and upheld PASPA. New
Jersey requested Supreme Court review.
The excerpt that appears here deals exclusively
with the major federalism question of whether
PASPA violates principles of state sovereignty. Also
at issue in the case was the more technical
question of severability. That is, when a provision
of a statute is declared unconstitutional, do the
surviving provisions remain in force, or is the
invalidated provision so central to the statute that
the unaffected provisions can no longer stand?
The concurring and dissenting opinions speak
primarily to the severability issue and, therefore,
are not excerpted here.
Arguments:
For the petitioner, Philip D. Murphy,
governor of New Jersey:
This case should be decided consistent with
the anti-commandeering doctrine established
in New York v. United States (1992) and Printz
v. United States (1997).
Congress cannot prohibit New Jersey from
repealing its ban on sports gambling.
Congress cannot require states to regulate
their citizens according to federal instructions.
PASPA should be stricken in its entirety.
For the respondents, National

Collegiate Athletic Association,
et al.:
The anti-commandeering doctrine prohibits
only federal laws that compel states to enact
or administer federal policy.
PASPA does not require states to do anything.
The anti-commandeering doctrine does not
entitle states to pursue policies inconsistent
with federal law.
Even if the state should prevail, Congress
retains the power to prohibit gambling.
Justice Alito Delivered the Opinion of the

Court.
The State of New Jersey wants to legalize sports

gambling at casinos and horseracing tracks, but a
federal law, the Professional and Amateur Sports
Protection Act, generally makes it unlawful for a
State to “authorize” sports gambling schemes. We
must decide whether this provision is compatible
with the system of “dual sovereignty” embodied in
The anticommandeering doctrine may sound

arcane, but it is simply the expression of a
fundamental structural decision incorporated into
the Constitution, i.e., the decision to withhold
from Congress the power to issue orders directly
to the States. When the original States declared
their independence, they claimed the powers
inherent in sovereignty—in the words of the
Declaration of Independence, the authority “to do
all . . . Acts and Things which Independent States
may of right do.” The Constitution limited but did
not abolish the sovereign powers of the States,
which retained “a residuary and inviolable
sovereignty.” The Federalist No. 39. Thus, both the
Federal Government and the States wield
sovereign powers, and that is why our system of
government is said to be one of “dual sovereignty.”
Gregory v. Ashcroft (1991).
The Constitution limits state sovereignty in several

ways. It directly prohibits the States from
exercising some attributes of sovereignty. See,
e.g., Art. I, §10. Some grants of power to the
Federal Government have been held to impose
implicit restrictions on the States. And the
Constitution indirectly restricts the States by
granting certain legislative powers to Congress,
see Art. I, §8, while providing in the Supremacy
Clause that federal law is the “supreme Law of the
Land . . . any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding,” Art.
VI, cl. 2. This means that when federal and state
law conflict, federal law prevails and state law is
preempted.
The legislative powers granted to Congress are

sizable, but they are not unlimited. The
Constitution confers on Congress not plenary
legislative power but only certain enumerated
powers. Therefore, all other legislative power is
reserved for the States, as the Tenth Amendment
confirms. And conspicuously absent from the list
of powers given to Congress is the power to issue
direct orders to the governments of the States.
The anticommandeering doctrine simply
represents the recognition of this limit on
congressional authority.
Although the anticommandeering principle is
simple and basic, it did not emerge in our cases
until relatively recently, when Congress attempted
in a few isolated instances to extend its authority
in unprecedented ways. The pioneering case was
New York v. United States (1992), which
concerned a federal law that required a State,
under certain circumstances, either to “take title”
to low-level radioactive waste or to “regulat[e]
according to the instructions of Congress.” In
enacting this provision, Congress issued orders to
either the legislative or executive branch of state
government (depending on the branch authorized
by state law to take the actions demanded). Either
way, the Court held, the provision was
unconstitutional because “the Constitution does
not empower Congress to subject state
governments to this type of instruction.”
Justice O’Connor’s opinion for the Court traced

this rule to the basic structure of government
established under the Constitution. The
Constitution, she noted, “confers upon Congress
the power to regulate individuals, not States.” . . .
As to what this structure means with regard to

Congress’s authority to control state legislatures,
New York was clear and emphatic. The opinion
recalled that “no Member of the Court ha[d] ever
suggested” that even “a particularly strong federal
interest” “would enable Congress to command a
state government to enact state regulation.” “We
have always understood that even where Congress
has the authority under the Constitution to pass
laws requiring or prohibiting certain acts, it lacks
the power directly to compel the States to require
or prohibit those acts.” “Congress may not simply
‘commandee[r] the legislative processes of the
enforce a federal regulatory program.’” “Where a
federal interest is sufficiently strong to cause
Congress to legislate, it must do so directly; it may
not conscript state governments as its agents.”
Five years after New York, the Court applied the

same principles to a federal statute requiring state
and local law enforcement officers to perform
background checks and related tasks in
connection with applications for handgun licenses.
Printz [v. United States]. Holding this provision
unconstitutional, the Court put the point
succinctly: “The Federal Government” may not
“command the States’ officers, or those of their
political subdivisions, to administer or enforce a
federal regulatory program.” This rule applies,
Printz held, not only to state officers with
policymaking responsibility but also to those
assigned more mundane tasks.
Our opinions in New York and Printz explained

why adherence to the anticommandeering
principle is important. Without attempting a
complete survey, we mention several reasons that
are significant here.
First, the rule serves as “one of the Constitution’s

structural protections of liberty.” “The
Constitution does not protect the sovereignty of
States for the benefit of the States or state
governments as abstract political entities.” New
York. “To the contrary, the Constitution divides
authority between federal and state governments
for the protection of individuals.” “‘[A] healthy
balance of power between the States and the
Federal Government [reduces] the risk of tyranny
and abuse from either front.’” Ibid.
Second, the anticommandeering rule promotes

political accountability. When Congress itself
regulates, the responsibility for the benefits and
burdens of the regulation is apparent. Voters who
like or dislike the effects of the regulation know
who to credit or blame. By contrast, if a State
imposes regulations only because it has been
commanded to do so by Congress, responsibility is
blurred.
Third, the anticommandeering principle prevents

Congress from shifting the costs of regulation to
the States. . . .
The PASPA provision at issue here—prohibiting

state authorization of sports gambling—violates
the anticommandeering rule. That provision
unequivocally dictates what a state legislature
may and may not do. . . . [S]tate legislatures are
put under the direct control of Congress. It is as if
federal officers were installed in state legislative
chambers and were armed with the authority to
stop legislators from voting on any offending
proposals. A more direct affront to state
sovereignty is not easy to imagine.
Neither respondents nor the United States

contends that Congress can compel a State to
enact legislation, but they say that prohibiting a
State from enacting new laws is another matter.
Noting that the laws challenged in New York and
Printz “told states what they must do instead of
what they must not do,” respondents contend that
commandeering occurs “only when Congress goes
beyond precluding state action and affirmatively
commands it.”
This distinction is empty. It was a matter of

happenstance that the laws challenged in New
York and Printz commanded “affirmative” action
as opposed to imposing a prohibition. The basic
principle—that Congress cannot issue direct
orders to state legislatures—applies in either
event.
Here is an illustration. PASPA includes an

exemption for States that permitted sports betting
at the time of enactment, but suppose Congress
did not adopt such an exemption. Suppose
Congress ordered States with legalized sports
betting to take the affirmative step of
criminalizing that activity and ordered the
remaining States to retain their laws prohibiting
sports betting. There is no good reason why the
former would intrude more deeply on state
sovereignty than the latter.
Respondents and the United States claim that

prior decisions of this Court show that PASPA’s
anti-authorization provision is constitutional, but
they misread those cases. In none of them did we
uphold the constitutionality of a federal statute
that commanded state legislatures to enact or
refrain from enacting state law. . . .
The legalization of sports gambling is a

controversial subject. Supporters argue that
legalization will produce revenue for the States
and critically weaken illegal sports betting
operations, which are often run by organized
crime. Opponents contend that legalizing sports
gambling will hook the young on gambling,
encourage people of modest means to squander
their savings and earnings, and corrupt
professional and college sports.
The legalization of sports gambling requires an

important policy choice, but the choice is not ours
to make. Congress can regulate sports gambling
directly, but if it elects not to do so, each State is
free to act on its own. Our job is to interpret the
law Congress has enacted and decide whether it is
consistent with the Constitution. PASPA is not.
PASPA “regulate[s] state governments’ regulation”
of their citizens. The Constitution gives Congress
no such power.
The judgment of the Third Circuit is reversed.
It is so ordered.
Clearly, the Court’s commandeering decisions have

protected the states from certain federal actions.
Still, the Supreme Court’s shift back toward dual
federalism should not be interpreted as a return to
the pre–Civil War days of Roger Taney or to the
laissez-faire philosophies that were popular prior to
the New Deal. Rather, in cases such as New York,
Printz, National Federation of Independent Business,
and National Collegiate Athletic Association, the
majority sought to remind us that under the U.S.
constitutional system the states retain significant
independent sovereignty. Congress may achieve its
goals by cooperating with the states or by providing
incentives to encourage states to participate in the
administration of federally established policies, but
the federal government may not commandeer the
states and order them to carry out federal directives.
The Eleventh Amendment and

Sovereign Immunity
An important element in our understanding of
federalism is the principle of sovereign immunity.
The origins of this doctrine can be traced back
several centuries into the early development of
English common law. Sovereign immunity initially
was based on the notion that all law flows from the
king and that the courts are the king’s creation.
Therefore, the king can do no wrong under the law
(rex non potest peccare) and consequently he cannot
be held accountable in the courts he created. As the
law developed, sovereign immunity came to mean
that a government cannot be sued in its own courts
unless it gives consent. When the colonists settled in
America, sovereign immunity was a generally
accepted legal doctrine. Even before the formation
of the federal government, state governments
claimed sovereign immunity protection from lawsuits
in their own courts; and when the federal
government was created it was universally
understood that it, too, enjoyed sovereign immunity
protection. Importantly, sovereign immunity is not
granted by the Constitution, but is considered to
emanate from the very essence of statehood.
During the process of ratifying the Constitution,

concern was expressed that federal judicial power
would extend to suits brought against states by
citizens of other states or even by foreign countries.
In Federalist No. 81 Alexander Hamilton tried to put
such fears to rest: “It is inherent in the nature of
sovereignty not to be amenable to the suit of an
individual without its consent.” In other words,
sovereign immunity would protect a state from suits
to which it did not consent.
Quite early on, however, it appeared that the United

States would not adhere to this principle. As we
noted in Chapter 2, in 1793 the Supreme Court
accepted original jurisdiction in Chisholm v.
Georgia, a suit brought against the state of Georgia
by two citizens of South Carolina trying to collect a
debt. This action was based on Article III’s
authorization for federal courts to adjudicate
controversies “between a State and Citizens of
another State.” Congress and the states strongly
opposed the Court’s action and reacted quickly by
adopting the Eleventh Amendment, which gives
states immunity from being sued, without their
consent, in federal courts by “Citizens of another
State, or by Citizens or Subjects of any Foreign
State.”
Soon afterward, however, the Supreme Court gave
the Eleventh Amendment a “stingy” reading. In his
opinion in Cohens v. Virginia (1821), Chief Justice
Marshall stated his belief that the Eleventh
Amendment did not preclude citizens from bringing
suit in federal court against their own state. That
view held sway with the Court until the post–Civil
War case of Hans v. Louisiana (1890). The Court, in
Hans, was aware of Marshall’s “observation” in
Cohens but deemed it dicta, “unnecessary to the
decision,” and therefore not binding. It went on to
conclude that the Eleventh Amendment does, in fact,
prohibit suits brought in federal court by citizens
against their own state unless the state grants
consent. According to the Court, even though the
text of the amendment does not mention suits by a
state’s own citizens, it would be “anomalous”—
especially given the furor over Chisholm—that a
state may be sued in the federal courts by its own
citizens in cases arising under the Constitution or
federal laws but could not be sued under similar
circumstances by the citizens of other states, or of a
foreign state.
Although Hans seemed to expand the reach of state

sovereign immunity, Congress, with the blessing of
the Supreme Court, attempted to contract it. This
trend continued into the 1980s. In case after case,
the Court allowed Congress to make exceptions to
the sovereign immunity established in the Eleventh
Amendment. In Fitzpatrick v. Bitzer (1976) the Court
held that because the Fourteenth Amendment
expressly authorizes Congress to enforce the
amendment “by appropriate legislation,” Congress
could, when exercising that authority, abrogate the
states’ immunity from suit under the Eleventh
Amendment. Similarly, in Pennsylvania v. Union Gas
Co. (1989) a divided Court ruled that the commerce
clause (Article I, Section 8) permitted Congress to
make an exception to the Eleventh Amendment’s
grant of immunity, holding that the power to
regulate commerce “among the several States”
would be “incomplete without the authority to
render States liable in damages.” These decisions,
favoring federal power over state interests, were
consistent with the philosophy of cooperative
federalism that was accepted by the justices at that
time.
But in 1996 the Court overruled Union Gas in

Seminole Tribe of Florida v. Florida, a case
involving the Indian Gaming Regulatory Act. This act
requires that states negotiate in good faith with
Native American tribes over gambling activities. If a
tribe thinks a state is not doing so, the act permits
the tribe to bring suit in a federal court to compel
the state to negotiate in good faith. Writing for the
Court, Chief Justice Rehnquist stated, “Even when
the Constitution vests in Congress complete law-
making authority over a particular area, the
Eleventh Amendment prevents congressional
authorization of suits by private parties against
unconsenting States.” In other words, the Court
asserted that the specific terms of Article I of the
constitutional text do not permit Congress to
abrogate the states’ immunity from suits commenced
or prosecuted in the federal courts.
Would the Court push Seminole Tribe even farther,

holding that Congress cannot subject nonconsenting
states to private suits for damages even in their own
courts? This question was at the heart of Alden v.
Maine.
Alden v. Maine 527 U.S. 706 (1999)
court/527/706.html


Thomas)

DISSENTING OPINION: Souter
Facts:
The Eleventh Amendment bars states from being
sued in federal court without their express
consent. The Supreme Court, despite the ruling in
Hans, allowed Congress to make some exceptions
to this general rule. Congress took advantage of
these decisions, occasionally abrogating the
Eleventh Amendment immunity from suit. The Fair
Labor Standards Act (FLSA), for example, enables
state employees to bring federal suits against
their states.
In 1992 sixty-five probation officers took

advantage of this provision and sued their
employer, the state of Maine, in federal district
court for violating overtime pay provisions of the
FLSA. While the suit was pending, the Supreme
Court reversed course. In Seminole Tribe of
Florida it held that Article I does not permit
Congress to abrogate the states’ sovereign
immunity from suits commenced or prosecuted in
the federal courts. This decision, in turn, led the
district court to dismiss the probation officers’
suit.
In Alden v. Maine (1999), the U.S. Supreme Court

ruled that state workers such as Julio Martinez,
left, Linda Maher, and Joe DeFilipp of Maine could
not sue the state for federal labor law violations.
Sun Journal photo by Russ Dillingham
Not willing to give up the battle, the officers took

their claim to a Maine state court. Even though
the FLSA enables employees to bring suit against
their states in state courts, the trial court
dismissed the suit on the basis of sovereign
immunity, and the Maine Supreme Judicial Court
affirmed.
When the officers appealed to the Supreme Court,

the justices were confronted with this question:
Do the powers delegated to Congress under
Article I include the power to subject
nonconsenting states to private suits for damages
in state courts? Because the text of the Eleventh
Amendment, which itself was a response to the
Supreme Court’s decision in Chisholm, speaks
only of federal judicial power, the majority turned
to history and tradition to derive an answer.
Arguments:
For the petitioners, John H. Alden et al.:
The supremacy clause makes clear that a state
court cannot refuse to hear this case by relying
on the sovereign immunity defense asserted
by the state. It makes a federal law as much
the law in the states as laws passed by the
state legislature, and it charges state courts
with a responsibility to enforce that law. This
rule applies equally to actions against a state.
There is no federal constitutional principle of
state sovereign immunity that overrides a state
court’s duty under the supremacy clause to
enforce federal law. The Eleventh Amendment,
by its text, limits only “the Judicial power of the
United States” and does not apply to suits
brought in state court.
For the respondent, state of

Maine:
A basic right of the states is that they cannot
be sued in their own courts without their
consent. This right existed when the
Constitution was ratified; it was made an
explicit part of the Constitution when the
Eleventh Amendment was adopted. It is as
essential a component of state sovereignty
today as it was two hundred years ago.
Although the Eleventh Amendment specifically
refers to the judicial power of the United States
and so cannot resolve the federalism issues
raised in this case, the Supreme Court has
never interpreted the Eleventh Amendment by
a mechanical, textual interpretation. Instead,
the Court has indicated that the Eleventh
Amendment memorializes a fundamental
principle of federalism: state immunity from
suit exists as an attribute of sovereignty
independent of the Eleventh Amendment.
The Civil War amendments represent the only
exception to this principle.
Court.
In this case we must determine whether Congress

has the power, under Article I, to subject
nonconsenting States to private suits in their own
courts. [T]he fact that the Eleventh Amendment by
its terms limits only “[t]he Judicial power of the
United States” does not resolve the question. . . .
In determining whether there is “compelling

evidence” that this derogation of the States’
sovereignty is “inherent in the constitutional
compact,” we [discuss] history, practice, . . . and
the structure of the Constitution.
We look first to evidence of the original

understanding of the Constitution. Petitioners
contend that because the ratification debates and
the events surrounding the adoption of the
Eleventh Amendment focused on the States’
immunity from suit in federal courts, the historical
record gives no instruction as to the founding
generation’s intent to preserve the States’
immunity from suit in their own courts.
We believe, however, that the founders’ silence is

best explained by the simple fact that no one, not
even the Constitution’s most ardent opponents,
suggested the document might strip the States of
the immunity. In light of the overriding concern
regarding the States’ war-time debts, together
with the well known creativity, foresight, and vivid
imagination of the Constitution’s opponents, the
silence is most instructive. It suggests the
sovereign’s right to assert immunity from suit in
its own courts was a principle so well established
that no one conceived it would be altered by the
new Constitution. . . .
. . . The . . . furor raised by Chisholm, and the

speed and unanimity with which the Amendment
was adopted . . . underscore the jealous care with
which the founding generation sought to preserve
the sovereign immunity of the States. . . .
Our historical analysis is supported by early

congressional practice. . . . Although early
Congresses enacted various statutes authorizing
federal suits in state court, we have discovered no
instance in which they purported to authorize
suits against nonconsenting States in these fora. .
..
Not only were statutes purporting to authorize

private suits against nonconsenting States in state
courts not enacted by early Congresses, statutes
purporting to authorize such suits in any forum
are all but absent from our historical experience. .
..
Our final consideration is whether a congressional

power to subject nonconsenting States to private
suits in their own courts is consistent with the
structure of the Constitution. We look both to the
essential principles of federalism and to the
special role of the state courts in the
constitutional design.
Although the Constitution grants broad powers to
Congress, our federalism requires that Congress
treat the States in a manner consistent with their
status as residuary sovereigns and joint
participants in the governance of the Nation. See,
e.g., United States v. Lopez [1995]; Printz [v.
United States, 1997]; New York [v. United States,
1992]. The founding generation thought it
“neither becoming nor convenient that the several
States of the Union, invested with that large
residuum of sovereignty which had not been
delegated to the United States, should be
summoned as defendants to answer the
complaints of private persons.” The principle of
sovereign immunity preserved by constitutional
design “thus accords the States the respect owed
them as members of the federation.” Petitioners
contend that immunity from suit in federal court
suffices to preserve the dignity of the States.
Private suits against nonconsenting States,
however, present “the indignity of subjecting a
State to the coercive process of judicial tribunals
at the instance of private parties,” regardless of
the forum. Not only must a State defend or default
but also it must face the prospect of being thrust,
by federal fiat and against its will, into the
disfavored status of a debtor, subject to the power
of private citizens to levy on its treasury or
perhaps even government buildings or property
which the State administers on the public’s behalf.
In some ways, of course, a congressional power to

authorize private suits against nonconsenting
States in their own courts would be even more
offensive to state sovereignty than a power to
authorize the suits in a federal forum. Although
the immunity of one sovereign in the courts of
another has often depended in part on comity or
agreement, the immunity of a sovereign in its own
courts has always been understood to be within
the sole control of the sovereign itself. A power to
press a State’s own courts into federal service to
coerce the other branches of the State,
furthermore, is the power first to turn the State
against itself and ultimately to commandeer the
entire political machinery of the State against its
will and at the behest of individuals. Such plenary
federal control of state governmental processes
denigrates the separate sovereignty of the States.
It is unquestioned that the Federal Government

retains its own immunity from suit not only in
state tribunals but also in its own courts. In light
of our constitutional system recognizing the
essential sovereignty of the States, we are
reluctant to conclude that the States are not
entitled to a reciprocal privilege.
Underlying constitutional form are considerations

of great substance. Private suits against
nonconsenting States—especially suits for money
damages—may threaten the financial integrity of
the States. It is indisputable that, at the time of
the founding, many of the States could have been
forced into insolvency but for their immunity from
private suits for money damages. Even today, an
unlimited congressional power to authorize suits
in state court to levy upon the treasuries of the
States for compensatory damages, attorney’s fees,
and even punitive damages could create
staggering burdens, giving Congress a power and
a leverage over the States that is not
contemplated by our constitutional design. The
potential national power would pose a severe and
notorious danger to the States and their
resources. . . .
Congress cannot abrogate the States’ sovereign

immunity in federal court; were the rule to be
different here, the National Government would
wield greater power in the state courts than in its
own judicial instrumentalities. . . .
The constitutional privilege of a State to assert its

sovereign immunity in its own courts does not
confer upon the State a concomitant right to
disregard the Constitution or valid federal law.
The States and their officers are bound by
obligations imposed by the Constitution and by
federal statutes that comport with the
constitutional design. We are unwilling to assume
the States will refuse to honor the Constitution or
obey the binding laws of the United States. The
good faith of the States thus provides an
important assurance that “[t]his Constitution, and
the Laws of the United States which shall be made
in Pursuance thereof . . . shall be the supreme Law
of the Land.” U.S. Const., Art. VI.
Sovereign immunity, moreover, does not bar all

judicial review of state compliance with the
Constitution and valid federal law. Rather, certain
limits are implicit in the constitutional principle of
state sovereign immunity.
The first of these limits is that sovereign immunity

bars suits only in the absence of consent. Many
States, on their own initiative, have enacted
statutes consenting to a wide variety of suits. The
rigors of sovereign immunity are thus “mitigated
by a sense of justice which has continually
expanded by consent the suability of the
sovereign.” Nor, subject to constitutional
limitations, does the Federal Government lack the
authority or means to seek the States’ voluntary
consent to private suits.
The States have consented, moreover, to some

suits pursuant to the plan of the Convention or to
subsequent constitutional amendments. In
ratifying the Constitution, the States consented to
suits brought by other States or by the Federal
Government. A suit which is commenced and
prosecuted against a State in the name of the
United States by those who are entrusted with the
constitutional duty to “take Care that the Laws be
faithfully executed,” U.S. Const., Art. II, §3, differs
in kind from the suit of an individual: While the
Constitution contemplates suits among the
members of the federal system as an alternative to
extralegal measures, the fear of private suits
against nonconsenting States was the central
reason given by the founders who chose to
preserve the States’ sovereign immunity. Suits
brought by the United States itself require the
exercise of political responsibility for each suit
prosecuted against a State, a control which is
absent from a broad delegation to private persons
to sue nonconsenting States.
We have held also that in adopting the Fourteenth

Amendment, the people required the States to
surrender a portion of the sovereignty that had
been preserved to them by the original
Constitution, so that Congress may authorize
private suits against nonconsenting States
pursuant to its §5 enforcement power. By imposing
explicit limits on the powers of the States and
granting Congress the power to enforce them, the
Amendment “fundamentally altered the balance of
state and federal power struck by the
Constitution.” When Congress enacts appropriate
legislation to enforce this Amendment, federal
interests are paramount, and Congress may assert
an authority over the States which would be
otherwise unauthorized by the Constitution.
Fitzpatrick [v. Bitzer, 1976]. . . .
The second important limit to the principle of

sovereign immunity is that it bars suits against
States but not lesser entities. The immunity does
not extend to suits prosecuted against a municipal
corporation or other governmental entity which is
not an arm of the State. The principle of sovereign
immunity as reflected in our jurisprudence strikes
the proper balance between the supremacy of
federal law and the separate sovereignty of the
States. Established rules provide ample means to
correct ongoing violations of law and to vindicate
the interests which animate the Supremacy
Clause. That we have, during the first 210 years of
our constitutional history, found it unnecessary to
decide the question presented here suggests a
federal power to subject nonconsenting States to
private suits in their own courts is unnecessary to
uphold the Constitution and valid federal statutes
as the supreme law.
The sole remaining question is whether Maine has

waived its immunity. The State of Maine “regards
the immunity from suit as ‘one of the highest
attributes inherent in the nature of sovereignty,’”
and adheres to the general rule that “a specific
authority conferred by an enactment of the
legislature is requisite if the sovereign is to be
taken as having shed the protective mantle of
immunity.” Petitioners have not attempted to
establish a waiver of immunity under this
standard. Although petitioners contend the State
has discriminated against federal rights by
claiming sovereign immunity from this FLSA suit,
there is no evidence that the State has
manipulated its immunity in a systematic fashion
to discriminate against federal causes of action. To
the extent Maine has chosen to consent to certain
classes of suits while maintaining its immunity
from others, it has done no more than exercise a
privilege of sovereignty concomitant to its
constitutional immunity from suit. The State, we
conclude, has not consented to suit. . . .
. . . Although the Constitution begins with the

principle that sovereignty rests with the people, it
does not follow that the National Government
becomes the ultimate, preferred mechanism for
expressing the people’s will. The States exist as a
refutation of that concept. In choosing to ordain
and establish the Constitution, the people insisted
upon a federal structure for the very purpose of
rejecting the idea that the will of the people in all
instances is expressed by the central power, the
one most remote from their control. The Framers
of the Constitution did not share our dissenting
colleagues’ belief that the Congress may
circumvent the federal design by regulating the
States directly when it pleases to do so, including
by a proxy in which individual citizens are
authorized to levy upon the state treasuries absent
the States’ consent to jurisdiction. . . .
The judgment of the Supreme Judicial Court of

Maine is
Affirmed.

JUSTICE STEVENS, JUSTICE
The National Constitution formally and finally
repudiated the received political wisdom that a
system of multiple sovereignties constituted the
“great solecism of an imperium in imperio.” Once
“the atom of sovereignty” had been split, the
general scheme of delegated sovereignty as
between the two component governments of the
federal system was clear, and was succinctly
stated by Chief Justice Marshall: “In America, the
powers of sovereignty are divided between the
government of the Union, and those of the States.
They are each sovereign, with respect to the
objects committed to it, and neither sovereign
with respect to the objects committed to the
other.” McCulloch v. Maryland (1819).
Hence the flaw in the Court’s appeal to

federalism. The State of Maine is not sovereign
with respect to the national objective of the FLSA.
It is not the authority that promulgated the FLSA,
on which the right of action in this case depends.
That authority is the United States acting through
the Congress, whose legislative power under
Article I of the Constitution to extend FLSA
coverage to state employees has already been
decided, see Garcia v. San Antonio Metropolitan
Transit Authority (1985), and is not contested
here. . . .
. . . [T]here is much irony in the Court’s profession

that it grounds its opinion on a deeply rooted
historical tradition of sovereign immunity, when
the Court abandons a principle nearly as
inveterate, and much closer to the hearts of the
Framers: that where there is a right, there must
be a remedy. . . . The generation of the Framers
thought the principle so crucial that several States
put it into their constitutions. And when Chief
Justice Marshall asked about Marbury, “If he has a
right, and that right has been violated, do the laws
of his country afford him a remedy?” Marbury v.
Madison (1803), the question was rhetorical, and
the answer clear:
“The very essence of civil liberty certainly

consists in the right of every individual to
claim the protection of the laws, whenever he
receives an injury. One of the first duties of
government is to afford that protection. In
Great Britain the king himself is sued in the
respectful form of a petition, and he never
fails to comply with the judgment of his
court.”
Yet today the Court has no qualms about saying
frankly that the federal right to damages afforded
by Congress under the FLSA cannot create a
concomitant private remedy. The right was “made
for the benefit of” petitioners; they have been
“hindered by another of that benefit”; but despite
what has long been understood as the “necessary
consequence of law,” they have no action. It will
not do for the Court to respond that a remedy was
never available where the right in question was
against the sovereign. A State is not the sovereign
when a federal claim is pressed against it, and
even the English sovereign opened itself to
recovery and, unlike Maine, provided the remedy
to complement the right. To the Americans of the
founding generation it would have been clear (as
it was to Chief Justice Marshall) that if the King
would do right, the democratically chosen
Government of the United States could do no less.
The Chief Justice’s contemporaries might well
have reacted to the Court’s decision today in the
words spoken by Edmund Randolph when
responding to the objection to jurisdiction in
Chisholm: “[The framers] must have viewed
human rights in their essence, not in their mere
form.”
The Court has swung back and forth with

regrettable disruption on the enforceability of the
FLSA against the States, but if the present
majority had a defensible position one could at
least accept its decision with an expectation of
stability ahead. As it is, any such expectation
would be naive. The resemblance of today’s state
sovereign immunity to the Lochner era’s industrial
due process is striking. The Court began this
century by imputing immutable constitutional
status to a conception of economic self-reliance
that was never true to industrial life and grew
insistently fictional with the years, and the Court
has chosen to close the century by conferring like
status on a conception of state sovereign immunity
that is true neither to history nor to the structure
of the Constitution. I expect the Court’s late essay
into immunity doctrine will prove the equal of its
earlier experiment in laissez-faire, the one being
as unrealistic as the other, as indefensible, and
probably as fleeting.
The Court’s Alden decision rejected Congress’s

attempt to penetrate Maine’s sovereign immunity
shield by authorizing aggrieved private parties to
sue the state in state court. That left the probation
workers in an impossible situation. Although federal
law provided state government employees certain
rights, the Seminole Tribe decision barred them
from taking their claims to federal court, and in
Alden the justices ruled that, absent state consent,
sovereign immunity prohibited them from suing the
state in state court. This, the dissenters pointed out,
created a legal wrong with no legal remedy.
The Court’s ruling in Alden was a strong statement

in favor of the protections provided state
governments by sovereign immunity. The 5–4 vote in
the case, however, indicated that the majority was
somewhat fragile. In subsequent decisions the
justices usually (but not always) remained
reasonably loyal to the position articulated in
Alden.17
17 Among the Court’s decisions upholding sovereign

immunity are Kimel v. Florida Board of Regents
(2000), Board of Trustees of the University of
Alabama v. Garrett (2001), and Coleman v. Court of
Appeals of Maryland (2012). In something of a break
in this trend the justices surprised observers in
Nevada Department of Human Resources v.
Hibbs (2003) by holding that states are not immune
from suits brought in federal court by their
employees under the federal Family and Medical
Leave Act of 1993.
In the end, the centuries-old sovereign immunity

doctrine provides federal and state governments
considerable protection from citizen lawsuits. Unless
it gives consent, the federal government cannot be
sued in either federal or state court. State sovereign
immunity, supplemented by the Eleventh
Amendment, extends to state governments similar
protections against private lawsuits. The sovereign
immunity enjoyed by the states applies only to the
state government itself and not to political
subdivisions such as cities, counties, or school
districts. Federal and state governments voluntarily
have reduced the practical effects of sovereign
immunity by passing legislation granting permission
to be sued over a variety of litigation categories. The
Federal Tort Claims Act, for example, permits
citizens who have been wrongfully injured by
persons acting on behalf of the United States
government to sue for damages in federal court.
National Preemption of State

Laws
One of the more important recurring issues of
federalism arises when both state and federal
governments lay claim to regulation of the same
activity. The supremacy clause seems to offer an
easy answer to such conflicts: if Congress passes
legislation with the intent of occupying a certain
issue area and precluding state involvement in that
area, then any state legislation that “stands as an
obstacle” must fall. The federal statute preempts
state involvement, even if Congress and the states
exercise concurrent authority over the subject in
question. The problem is that federal laws usually do
not specify whether Congress intended to preclude
state action. When disputes arise over this
ambiguity, the judiciary is often called on to
determine whether Congress has exercised exclusive
or concurrent jurisdiction.
For certain subjects, the Supreme Court has found

the task easy. There is little question, in the Court’s
view, that when Congress acts in the area of foreign
affairs, it does so exclusively even if its actions touch
on areas over which states have some authority. The
Court made this point quite clear in State of
Missouri v. Holland. In this case, the federal
government entered into a treaty with Great Britain,
but a direct conflict between state and federal laws
arose when Congress passed legislation to
implement the provisions of that treaty.
State of Missouri v. Holland 252 U.S. 416 (1920)
court/252/416.html
Vote: 7 (Brandeis, Clark, Day, Holmes, McKenna,

McReynolds, White)
2 (Pitney, Van Devanter)
OPINION OF THE COURT: Holmes
Facts:
In 1913 Congress enacted legislation to protect
certain species of migratory birds in danger of
extinction, but the act was struck down as an
unconstitutional use of the power to regulate
interstate commerce. Three years later, the United
States and Great Britain entered into a treaty that
addressed a similar concern. The treaty noted that
many species of migratory birds “traversed
certain parts of the United States and of Canada,
that they were of great value as a source of food
and in destroying insects injurious to vegetation,
but were in danger of extermination through lack
of adequate protection.” Britain and the United
States agreed that their “law-making bodies”
should take steps to prevent the extinction of
these birds. To give effect to this agreement,
Congress in 1918 enacted another law, the
Migratory Bird Treaty Act, which prohibited
anyone from “killing, capturing, or selling” any
species of birds cited in the treaty.
Missouri challenged the act, bringing suit against

a U.S. game warden, Ray P. Holland, to prevent
him from enforcing it. The state argued that the
law infringed on states’ rights regardless of
whether it was based in congressional commerce
power or in treaty-making authority.
Arguments:
For the appellant, the state of Missouri:
Under the ancient law, feudal law, and the
common law in England, the absolute control
of wild game was a part of sovereignty. When
the American colonies became “free and
independent states,” the power to control the
taking of wild game passed to the states.
The 1918 act is the same as the 1913 law that
the lower courts struck down. Congress was
merely using its treaty power as a vehicle to
interfere with rights reserved to the states
under the Tenth Amendment.
If Congress can use treaties to take over
powers reserved to the states, the president
and the Senate could control the laws of a
state relating to health and internal trade;
prescribe law regarding elections; force the
introduction and sale of alcohol and drugs,
however injurious to the health and well-being
of a state; cede to a foreign power over a
state; and destroy the securities of liberty and
property as effectually as the most tyrannical
government ever formed.
For the appellee, Ray P. Holland,

U.S. game warden:
Aside from the treaty, a migratory bird law falls
under the government’s power to regulate
commerce between the states.
The Constitution expressly gives Congress the
power to enact laws as may be necessary to
give effect to treaties.
The power of Congress to legislate to make
treaties effective is not limited to the subjects
over which it has power in purely domestic
affairs. The situations are different. In the
domestic sphere, Americans are citizens with
dual sovereignties, each supreme within its
own sphere. But in foreign relations, Americans
are part of one government, which is invested
with the powers that belong to independent
nations.
Mr. Justice Holmes Delivered the Opinion of

the Court.
[T]he question raised is the general one whether

the treaty and statute are void as an interference
with the rights reserved to the states.
To answer this question it is not enough to refer to
the 10th Amendment, reserving the powers not
delegated to the United States, because by article
2, §2, the power to make treaties is delegated
expressly, and by article 6, treaties made under
the authority of the United States, along with the
Constitution and laws of the United States, made
in pursuance thereof, are declared the supreme
law of the land. If the treaty is valid, there can be
no dispute about the validity of the statute under
article 1, §8, as a necessary and proper means to
execute the powers of the government. The
language of the Constitution as to the supremacy
of treaties being general, the question before us is
narrowed to an inquiry into the ground upon
which the present supposed exception is placed.
It is said that a treaty cannot be valid if it infringes

the Constitution; that there are limits, therefore,
to the treaty-making power; and that one such
limit is that what an act of Congress could not do
unaided, in derogation of the powers reserved to
the states, a treaty cannot do. An earlier act of
Congress that attempted by itself, and not in
pursuance of a treaty, to regulate the killing of
migratory birds within the states, had been held
bad in the district court. United States v. Shauver;
United States v. McCullagh. Those decisions were
supported by arguments that migratory birds were
owned by the states in their sovereign capacity,
for the benefit of their people, and that . . . this
control was one that Congress had no power to
displace. The same argument is supposed to apply
now with equal force.
Whether the two cases cited were decided rightly
or not, they cannot be accepted as a test of the
treaty power. Acts of Congress are the supreme
law of the land only when made in pursuance of
the Constitution, while treaties are declared to be
so when made under the authority of the United
States. It is open to question whether the
authority of the United States means more than
the formal acts prescribed to make the
convention. We do not mean to imply that there
are no qualifications to the treaty-making power;
but they must be ascertained in a different way. It
is obvious that there may be matters of the
sharpest exigency for the national well-being that
an act of Congress could not deal with, but that a
treaty followed by such an act could, and it is not
lightly to be assumed that, in matters requiring
national action, “a power which must belong to
and somewhere reside in every civilized
government” is not to be found. Andrews v.
Andrews (1903). What was said in that case with
regard to the powers of the states applies with
equal force to the powers of the nation in cases
where the states individually are incompetent to
act. We are not yet discussing the particular case
before us, but only are considering the validity of
the test proposed. With regard to that, we may
add that when we are dealing with words that also
are a constituent act, like the Constitution of the
United States, we must realize that they have
called into life a being the development of which
could not have been foreseen completely by the
most gifted of its begetters. It was enough for
them to realize or to hope that they had created
an organism; it has taken a century and has cost
their successors much sweat and blood to prove
that they created a nation. The case before us
must be considered in the light of our whole
experience, and not merely in that of what was
said a hundred years ago. The treaty in question
does not contravene any prohibitory words to be
found in the Constitution. The only question is
whether it is forbidden by some invisible radiation
from the general terms of the 10th Amendment.
We must consider what this country has become in
deciding what that amendment has reserved.
The state, as we have intimated, founds its claim

of exclusive authority upon an assertion of title to
migratory birds—an assertion that is embodied in
statute. No doubt it is true that, as between a
state and its inhabitants, the state may regulate
the killing and sale of such birds, but it does not
follow that its authority is exclusive of paramount
powers. To put the claim of the state upon title is
to lean upon a slender reed. Wild birds are not in
the possession of anyone; and possession is the
beginning of ownership. The whole foundation of
the state’s rights is the presence within their
jurisdiction of birds that yesterday had not
arrived, tomorrow may be in another state, and in
a week a thousand miles away. If we are to be
accurate, we cannot put the case of the state upon
higher ground than that the treaty deals with
creatures that for the moment are within the state
borders, that it must be carried out by officers of
the United States within the same territory, and
that, but for the treaty, the state would be free to
regulate this subject itself.
As most of the laws of the United States are

carried out within the states, and as many of them
deal with matters which, in the silence of such
laws, the state might regulate, such general
grounds are not enough to support Missouri’s
claim. Valid treaties, of course, “are as binding
within the territorial limits of the states as they
are effective throughout the dominion of the
United States.” No doubt the great body of private
relations usually falls within the control of the
state, but a treaty may override its power. . . .
Here a national interest of very nearly the first

magnitude is involved. It can be protected only by
national action in concert with that of another
power. The subject-matter is only transitorily
within the state, and has no permanent habitat
therein. But for the treaty and the statute, there
soon might be no birds for any powers to deal
with. We see nothing in the Constitution that
compels the government to sit by while a food
supply is cut off and the protectors of our forests
and of our crops are destroyed. It is not sufficient
to rely upon the states. The reliance is vain, and
were it otherwise, the question is whether the
United States is forbidden to act. We are of
opinion that the treaty and statute must be
upheld.
Decree affirmed.
Justice Oliver Wendell Holmes’s opinion was

narrowly drawn; he focused on the matter at hand.
Even so, his message was clear: when Congress acts
in the area of foreign affairs, it does so exclusively
even if its actions touch on areas over which states
have some authority. Eight decades later the
Rehnquist Court reiterated this basic message in a
case dealing with trade with Burma. Unlike Missouri
v. Holland, however, this case does not involve the
federal government’s power to enter into treaties.
Rather, it involves conflicting state and federal
legislation that shared the same basic policy
objective: to apply economic sanctions on a nation
that repressed the democratic rights of its people.
Crosby v. National Foreign Trade Council 530 U.S.

363 (2000)
https:/caselaw.findlaw.com/us-supreme-
court/530/363.html


OPINION OF THE COURT: Souter

OPINION CONCURRING IN JUDGMENT:
Scalia
Facts:
In June 1996 Massachusetts passed a law barring
state entities from buying goods or services from
companies doing business with Burma.18 The law
defined “doing business with Burma” to cover any
person (including a business)
18 When military leaders seized control of the
country in 1962, they changed the official name of
the nation from Burma to Myanmar. Because of
the repressive nature of that regime, some
nations, including the United States, refused to
recognize the new name.
1. Having a principal place of business in Burma;

2. Providing financial services to the government
of Burma;
3. Promoting the importation or sale from Burma
of gems, timber, oil, gas, or other related
products, commerce in which is largely
controlled by the government of Burma; or
4. Providing any goods or services to the
government of Burma.
In September, three months after the

Massachusetts law was enacted, Congress passed
a statute imposing a set of mandatory and
conditional sanctions on Burma. The federal act
had five basic parts, three of which were
substantive and two procedural. First, it imposed
three sanctions directly on Burma. It banned all
aid to the Burmese government except for
humanitarian assistance, counternarcotics efforts,
and promotion of human rights and democracy.
These restrictions were to remain in effect “until
such time as the President determined and
certified to Congress that Burma had made
measurable and substantial progress in improving
human rights practices and implementing
democratic government.” Second, the federal act
authorized the president to impose further
sanctions if he determined that the Burmese
government had engaged in certain specified
human rights offenses. Third, the statute directed
the president to work to develop “a
comprehensive, multilateral strategy to bring
democracy to and improve human rights practices
and the quality of life in Burma.”
Three Burmese monks stand in front of the U.S.

Supreme Court on March 22, 2000, to
demonstrate their support for Massachusetts’s
“selective purchasing” law. The law, which
condemns Burma’s human rights record and all
but prohibits state government purchases from
companies operating there, was overturned by the
Court in 2000.
TIM SLOAN/AFP/Getty Images

In the procedural provisions of the federal statute,
the fourth section required the president to report
periodically to certain congressional committee
chairs on the progress toward democratization
and better living conditions in Burma. The fifth
part of the federal act authorized the president “to
waive, temporarily or permanently, any sanction
[under the federal act] . . . if he determines and
certifies to Congress that the application of such
sanction would be contrary to the national
security interests of the United States.”
On May 20, 1997, President Clinton issued

Executive Order 13047, in which he certified that
the government of Burma had “committed large-
scale repression of the democratic opposition in
Burma” and found that the Burmese government’s
actions and policies constituted “an unusual and
extraordinary threat to the national security and
foreign policy of the United States,” a threat
characterized as a national emergency. The
president then prohibited new investment in
Burma “by United States persons,” any approval
or facilitation by a United States person of such
new investment by foreign persons, and any
transaction meant to evade or avoid the ban.
Subsequently, Congress imposed mandatory and
conditional sanctions on Burma.
Because several members of the National Foreign

Trade Council, a nonprofit corporation
representing companies engaged in foreign
commerce, were affected by the state act, the
council brought a federal suit against
Massachusetts. The district court held that the
state law “unconstitutionally impinged on the
federal government’s exclusive authority to
regulate foreign affairs,” and the First Circuit
Court of Appeals affirmed. When the Supreme
Court heard this case on appeal, the United States
government participated as amicus curiae urging
the justices to strike down the Massachusetts law.
Arguments:
For the petitioner, Stephen Crosby,
Massachusetts secretary of
administration and finance:
For more than two hundred years,
Massachusetts and other states have used
boycotts to support the “natural, essential, and
unalienable rights” of people around the world.
The Massachusetts law is similar to the many
divestment and selective purchasing laws
enacted by state and local governments in the
1980s concerning South Africa.
Nothing in the U.S. Constitution denies states
the right to apply a moral standard to their
spending decisions or requires states to trade
with dictators.
The federal law does not preempt; rather, it
implicitly permits state selective purchasing
laws regarding Burma. The Court should
presume that the state law is valid given the
historical importance of the ability of states to
make their own spending decisions. Simply
because a federal law in the foreign affairs
realm is at issue does not change the
presumption.
For the respondent, National
Foreign Trade Council:
For more than two hundred years, the federal
government has employed sanctions against
merchants as part of its foreign policy strategy.
These sanctions express disapproval of other
nations and their policies and use economic
leverage as a means of bringing about change
in their conduct.
The framers wanted to ensure that the
Constitution reserves such foreign policy
decisions exclusively to the federal
government, and this Court has agreed. To
allow the state action here would be to
undermine national foreign policy and put
Americans at risk.
The law violates the commerce clause by
discriminating against companies engaged in
commerce with Burma. There is no question
that the state law conflicts with the federal law
imposing sanctions on Burma. The state
disrupts the careful balance created by federal
policy.
Justice Souter Delivered the Opinion of the

Court.
The issue is whether the Burma law of the

Commonwealth of Massachusetts, restricting the
authority of its agencies to purchase goods or
services from companies doing business with
Burma, is invalid under the Supremacy Clause of
the National Constitution owing to its threat of
frustrating federal statutory objectives. We hold
that it is. . . .
A fundamental principle of the Constitution is that

Congress has the power to preempt state law. Art.
VI, cl. 2. Even without an express provision for
preemption, we have found that state law must
yield to a congressional Act in at least two
circumstances. When Congress intends federal
law to “occupy the field,” state law in that area is
preempted. And even if Congress has not occupied
the field, state law is naturally preempted to the
extent of any conflict with a federal statute. We
will find preemption where it is impossible for a
private party to comply with both state and
federal law and where “under the circumstances
of [a] particular case, [the challenged state law]
stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of
Congress.” What is a sufficient obstacle is a
matter of judgment, to be informed by examining
the federal statute as a whole and identifying its
purpose and intended effects:
“For when the question is whether a Federal

act overrides a state law, the entire scheme of
the statute must of course be considered and
that which needs must be implied is of no less
force than that which is expressed. If the
purpose of the act cannot otherwise be
accomplished—if its operation within its
chosen field else must be frustrated and its
provisions be refused their natural effect—the
state law must yield to the regulation of
Congress within the sphere of its delegated
power.” [Savage v. Jones, 1912]
Applying this standard, we see the state Burma

law as an obstacle to the accomplishment of
Congress’s full objectives under the federal Act.
We find that the state law undermines the
intended purpose and “natural effect” of at least
three provisions of the federal Act, that is, its
delegation of effective discretion to the President
to control economic sanctions against Burma, its
limitation of sanctions solely to United States
persons and new investment, and its directive to
the President to proceed diplomatically in
developing a comprehensive, multilateral strategy
towards Burma.
First, Congress clearly intended the federal act to

provide the President with flexible and effective
authority over economic sanctions against Burma.
Although Congress immediately put in place a set
of initial sanctions, it authorized the President to
terminate any and all of those measures upon
determining and certifying that there had been
progress in human rights and democracy in
Burma. It invested the President with the further
power to ban new investment by United States
persons, dependent only on specific Presidential
findings of repression in Burma. And, most
significantly, Congress empowered the President
“to waive, temporarily or permanently, any
sanction [under the federal act] . . . if he
determines and certifies to Congress that the
application of such sanction would be contrary to
the national security interests of the United
States.”
This express investiture of the President with

statutory authority to act for the United States in
imposing sanctions with respect to the
government of Burma, augmented by the
flexibility* to respond to change by suspending
sanctions in the interest of national security,
recalls Justice Jackson’s observation in
Youngstown Sheet & Tube Co. v. Sawyer (1952):
“When the President acts pursuant to an express
or implied authorization of Congress, his authority
is at its maximum, for it includes all that he
possesses in his own right plus all that Congress
can delegate.” Within the sphere defined by
Congress, then, the statute has placed the
President in a position with as much discretion to
exercise economic leverage against Burma, with
an eye toward national security, as our law will
admit. And it is just this plenitude of Executive
authority that we think controls the issue of
preemption here. The President has been given
this authority not merely to make a political
statement but to achieve a political result, and the
fullness of his authority shows the importance in
the congressional mind of reaching that result. It
is simply implausible that Congress would have
gone to such lengths to empower the President if
it had been willing to compromise his
effectiveness by deference to every provision of
state statute or local ordinance that might, if
enforced, blunt the consequences of discretionary
Presidential action.
* Statements by the sponsors of the federal Act
underscore the statute’s clarity in providing the
President with flexibility in implementing its
Burma sanctions policy. See statement of principal
sponsor Sen. Cohen, emphasizing importance of
providing “the administration flexibility in reacting
to changes, both positive and negative, with
respect to the behavior of the [Burmese regime]”;
statement of cosponsor Sen. McCain, describing
the federal act as “giv[ing] the President, who,
whether Democrat or Republican, is charged with
conducting our Nation’s foreign policy, some
flexibility.” . . . These sponsors chose a pliant
policy with the explicit support of the Executive.
See, letter from Barbara Larkin, Assistant
Secretary, Legislative Affairs, U.S. Department of
State to Sen. Cohen: “We believe the current and
conditional sanctions which your language
proposes are consistent with Administration
policy. As we have stated on several occasions in
the past, we need to maintain our flexibility to
respond to events in Burma and to consult with
Congress on appropriate responses to ongoing
and future development there.”
And that is just what the Massachusetts Burma

law would do in imposing a different, state system
of economic pressure against the Burmese
political regime. . . . [T]he state statute penalizes
some private action that the federal Act (as
administered by the President) may allow, and
pulls levers of influence that the federal Act does
not reach. But the point here is that the state
sanctions are immediate. This unyielding
application undermines the President’s intended
statutory authority by making it impossible for him
to restrain fully the coercive power of the national
economy when he may choose to take the
discretionary action open to him, whether he
believes that the national interest requires
sanctions to be lifted, or believes that the promise
of lifting sanctions would move the Burmese
regime in the democratic direction. Quite simply, if
the Massachusetts law is enforceable the
President has less to offer and less economic and
diplomatic leverage as a consequence. In Dames &
Moore v. Regan (1981), we used the metaphor of
the bargaining chip to describe the President’s
control of funds valuable to a hostile country;
here, the state Act reduces the value of the chips
created by the federal statute. It thus “stands as
an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.”
Congress manifestly intended to limit economic

pressure against the Burmese Government to a
specific range. The federal Act confines its reach
to United States persons, imposes limited
immediate sanctions, places only a conditional ban
on a carefully defined area of “new investment,”
and pointedly exempts contracts to sell or
purchase goods, services, or technology. These
detailed provisions show that Congress’s
calibrated Burma policy is a deliberate effort “to
steer a middle path.”
The State has set a different course, and its

statute conflicts with federal law at a number of
points by penalizing individuals and conduct that
Congress has explicitly exempted or excluded
from sanctions. While the state Act differs from
the federal in relying entirely on indirect economic
leverage through third parties with Burmese
connections, it otherwise stands in clear contrast
to the congressional scheme in the scope of
subject matter addressed. It restricts all contracts
between the State and companies doing business
in Burma. . . . It is specific in targeting contracts
to provide financial services, and general goods
and services, to the Government of Burma, and
thus prohibits contracts between the State and
United States persons for goods, services, or
technology, even though those transactions are
explicitly exempted from the ambit of new
investment prohibition when the President
exercises his discretionary authority to impose
sanctions under the federal Act. . . .
. . . [T]he state Act is at odds with the President’s

intended authority to speak for the United States
among the world’s nations in developing a
“comprehensive, multilateral strategy to bring
democracy to and improve human rights practices
and the quality of life in Burma.” Congress called
for Presidential cooperation with . . . other
countries in developing such a strategy, directed
the President to encourage a dialogue between
the government of Burma and the democratic
opposition, and required him to report to the
Congress on the progress of his diplomatic efforts.
As with Congress’s explicit delegation to the
President of power over economic sanctions,
Congress’s express command to the President to
take the initiative for the United States among the
international community invested him with the
maximum authority of the National Government,
cf. Youngstown Sheet & Tube Co. in harmony with
the President’s own constitutional powers, U.S.
Const., Art. II, §2, cl. 2 (“[The President] shall
have Power, by and with the Advice and Consent
of the Senate, to make Treaties” and “shall
appoint Ambassadors, other public Ministers and
Consuls”); §3 (“[The President] shall receive
Ambassadors and other public Ministers”). This
clear mandate and invocation of exclusively
national power belies any suggestion that
Congress intended the President’s effective voice
to be obscured by state or local action.
Again, the state Act undermines the President’s

capacity, in this instance for effective diplomacy. It
is not merely that the differences between the
state and federal Acts in scope and type of
sanctions threaten to complicate discussions; they
compromise the very capacity of the President to
speak for the Nation with one voice in dealing
with other governments. We need not get into any
general consideration of limits of state action
affecting foreign affairs to realize that the
President’s maximum power to persuade rests on
his capacity to bargain for the benefits of access
to the entire national economy without exception
for enclaves fenced off willy-nilly by inconsistent
political tactics. When such exceptions do qualify
his capacity to present a coherent position on
behalf of the national economy, he is weakened, of
course, not only in dealing with the Burmese
regime, but in working together with other nations
in hopes of reaching common policy and
“comprehensive” strategy. . . .
[The state] contends that the failure of Congress

to preempt the state Act demonstrates implicit
permission. The State points out that Congress
has repeatedly declined to enact express
preemption provisions aimed at state and local
sanctions, and it calls our attention to the large
number of such measures passed against South
Africa in the 1980s, which various authorities
cited have thought were not preempted. The State
stresses that Congress was aware of the state Act
in 1996, but did not preempt it explicitly when it
adopted its own Burma statute. The State would
have us conclude that Congress’s continuing
failure to enact express preemption implies
approval, particularly in light of occasional
instances of express preemption of state sanctions
in the past.
The argument is unconvincing on more than one

level. A failure to provide for preemption expressly
may reflect nothing more than the settled
character of implied preemption doctrine that
courts will dependably apply, and in any event, the
existence of conflict cognizable under the
Supremacy Clause does not depend on express
congressional recognition that federal and state
law may conflict. The State’s inference of
congressional intent is unwarranted here,
therefore, simply because the silence of Congress
is ambiguous. Since we never ruled on whether
state and local sanctions against South Africa in
the 1980s were preempted or otherwise invalid,
arguable parallels between the two sets of federal
and state Acts do not tell us much about the
validity of the latter.
Because the state Act’s provisions conflict with

Congress’s specific delegation to the President of
flexible discretion, with limitation of sanctions to a
limited scope of actions and actors, and with
direction to develop a comprehensive, multilateral
strategy under the federal Act, it is preempted,
and its application is unconstitutional, under the
Supremacy Clause.
The judgment of the Court of Appeals for the First

Circuit is affirmed.
It is so ordered.

JUSTICE THOMAS joins,
concurring in the judgment.
It is perfectly obvious on the face of this statute
that Congress, with the concurrence of the
President, intended to “provid[e] the President
with flexibility in implementing its Burma
sanctions policy.” I therefore see no point in
devoting a footnote to the interesting (albeit
unsurprising) proposition that “[s]tatements by
the sponsors of the federal Act” show that they
shared this intent and that a statement in a letter
from a State Department officer shows that
flexibility had “the explicit support of the
Executive.” . . .
Of course even if . . . the Court’s invocations of

legislative history were not utterly irrelevant, I
would still object to them, since neither the
statements of individual Members of Congress
(ordinarily addressed to a virtually empty floor),
nor Executive statements and letters addressed to
congressional committees, nor the nonenactment
of other proposed legislation, is a reliable
indication of what a majority of both Houses of
Congress intended when they voted for the statute
before us. The only reliable indication of that
intent—the only thing we know for sure can be
attributed to all of them—is the words of the bill
that they voted to make law. In a way, using
unreliable legislative history to confirm what the
statute plainly says anyway (or what the record
plainly shows) is less objectionable since, after all,
it has absolutely no effect upon the outcome. But
in a way, this utter lack of necessity makes it even
worse. . . .
. . . [I]t tells future litigants that, even when a

statute is clear on its face, and its effects clear
upon the record, statements from the legislative
history may help (and presumably harm) the case.
If so, they must be researched and discussed by
counsel—which makes appellate litigation
considerably more time consuming, and hence
considerably more expensive, than it need be. This
to my mind outweighs the arguable good that may
come of such persistent irrelevancy, at least when
it is indulged in the margins: that it may
encourage readers to ignore our footnotes.
For this reason, I join only the judgment of the

Court.
Crosby is an interesting case for several reasons,

among them Scalia’s concurring opinion. Scalia
demonstrates his interest in reaching decisions
based on the clear language in laws without delving
into the intent of their framers or legislative history.
Furthermore, as in Holland the justices held that
states are preempted from taking any action in the
area of foreign affairs that conflicts with federal
policies. And, if this holding needed any additional
reinforcement, the Court provided it in American
Insurance Association v. Garamendi (2003). This
case considered a California law that required any
insurer doing business in the state to disclose
information about all policies sold in Europe
between 1920 and 1945 by the company itself or
anyone “related” to it. The aim of the law was to
ensure that Holocaust victims or their heirs could
take direct action on their own behalf to receive
payment on their insurance policies. The American
Insurance Association, joined by the United States as
an amicus curiae, challenged the law on the ground
that it interfered with the federal government’s
conduct of foreign relations and thus is preempted.
Writing for the majority, Justice David Souter agreed

with this argument. He noted that the federal
government’s position “expressed unmistakably in
the executive agreements signed by the President
with Germany and Austria, has been to encourage
European insurers to work . . . to develop acceptable
claim procedures” rather than to encourage
lawsuits. “California,” Souter noted, “has taken a
different tack of providing regulatory sanctions to
compel disclosure and payment, supplemented by a
new cause of action for Holocaust survivors if the
other sanctions should fail.” He continued,
The situation created by the California
legislation calls to mind the impact of the
Massachusetts Burma law on the effective
exercise of the President’s power, as recounted
in the statutory preemption case, Crosby v.
National Foreign Trade Council (2000). [The
California law’s] economic compulsion to make
public disclosure employs “a different, state
system of economic pressure,” and in doing so
undercuts the President’s diplomatic discretion
and the choice he has made exercising it. . . .
The law thus “compromise[s] the very capacity
of the President to speak for the Nation with one
voice in dealing with other governments” to
resolve claims against European companies
arising out of World War II.
In Holland, Crosby, and Garamendi, the Court

delivered a clear message to the states. State laws
that impinge on the federal government’s foreign
policy powers are not likely to receive a favorable
treatment by the Court. Most preemption disputes,
however, involve domestic matters. Table 6-5
provides examples of some of the more important
domestic preemption cases the Court has decided.
Table 6-5
Arizona v. United States (2012) is one of the more
controversial of the Court’s recent preemption
decisions. The case focused on the nation’s
immigration laws, a policy area with both foreign
and domestic components. States in the nation’s
southwestern region have experienced large
numbers of immigrants from Latin American nations,
with a significant portion entering the United States
unlawfully. Most observers agree that federal
policies designed to deal with the influx of
unauthorized aliens have been largely ineffective,
but political deadlocks have doomed reform
attempts. Residents of the states along the border
with Mexico have sharply criticized federal inaction
and long complained that they have been forced to
bear the brunt of the social and economic costs
associated with the problem.
In 2010 the state of Arizona passed legislation

granting state law enforcement officials new
authority to enforce federal laws against those
unlawfully residing within its borders. The federal
government immediately reacted by filing a lawsuit
claiming that the Arizona statute unconstitutionally
encroached on federal authority. This constitutional
dispute had enormous political, economic, and
humanitarian implications.
On January 25, 2012, Arizona governor Jan Brewer

and President Barack Obama have a heated
immigration policy exchange on the tarmac of the
Phoenix-Mesa Gateway Airport. Two years earlier,
Arizona passed the Support Our Law Enforcement
and Safe Neighborhoods Act “to discourage and
deter unlawful entry” into the United States. In 2012
the Supreme Court struck down major portions of
the law on the ground that federal statutes
preempted them.
AP Photo/Haraz N. Ghanbari, File
In reading Justice Anthony Kennedy’s majority

opinion in this case, pay special attention to his
discussion of federalism and his review of standards
used by the Court to settle preemption disputes.
Arizona v. United States 567 U.S. 387 (2012)
182.html

Vote: 5 (Breyer, Ginsburg, Kennedy, Roberts,

Sotomayor)
3 (Alito, Scalia, Thomas)

OPINIONS CONCURRING IN PART AND
DISSENTING IN PART: Alito, Scalia,
Thomas
NOT PARTICIPATING: Kagan
Facts:
Faced with large numbers of unauthorized aliens
within its borders and frustrated by the federal
government’s inability to resolve the nation’s
immigration issues, the Arizona legislature in
2010 passed S.B. 1070, the Support Our Law
Enforcement and Safe Neighborhoods Act. The
stated purpose of the legislation was to
“discourage and deter the unlawful entry and
presence of aliens and economic activity by
persons unlawfully present in the United States.”
The law established a state policy of “attrition
through enforcement.”
The law had four provisions of constitutional

concern. First, Section 3 made failure to carry
federally required alien registration documents a
state crime. Second, Section 5(C) made it a state
crime for unauthorized aliens to apply for work or
to work as employees or independent contractors
in Arizona. Third, Section 6 authorized police to
make a warrantless arrest of any person if the
officer had probable cause to believe that the
person had committed a deportable offense. And
fourth, Section 2(B) required state law
enforcement officers to check the immigration
status of any lawfully stopped person whom the
officer reasonably suspected of being an
unauthorized immigrant.
Before S.B. 1070 could take effect, the federal

government filed suit against the state of Arizona
and Governor Jan Brewer, claiming that federal
immigration law preempted S.B. 1070 and that the
law was therefore unconstitutional on its face. The
federal district court ruled in favor of the United
States and issued a preliminary injunction against
enforcement of the law. The court of appeals
affirmed, and the Supreme Court granted review.
Arguments:
For the petitioners, the state of Arizona
and Arizona Governor Jan Brewer:
S.B. 1070 does not impose its own substantive
immigration standards; it simply uses state
resources to enforce existing federal rules.
Under our system of cooperative federalism,
the laws of the United States can be enforced
by either federal or state officers unless
Congress specifically states otherwise.
Congress has not done so.
Congress has established policies for
cooperative actions between the federal
government and the states on immigration
matters. This indicates that Congress has not
implied that federal law preempts the
immigration field.
States:
Under the Constitution, the national
government has plenary authority to admit
aliens to this country, to prescribe the terms
under which they may remain, and, if
necessary, to remove them. Because those
decisions involve other countries’ citizens, they
necessarily implicate “important and delicate”
considerations of foreign policy.
Congress has set forth a single federal
framework governing aliens’ obligations. The
state cannot, in the name of enforcing a
federal obligation, claim the right to punish
aliens whom the executive branch has decided
not to prosecute based on important
considerations consistent with the Immigration
and Naturalization Act.
In enforcing immigration laws, the federal
government welcomes the cooperation and
assistance of state and local officers. Sections
of S.B. 1070, however, make cooperation
impossible by authorizing local officers to take
actions that might not be consistent with the
federal government’s priorities.

Court.
The Government of the United States has broad,

undoubted power over the subject of immigration
and the status of aliens. This authority rests, in
part, on the National Government’s constitutional
power to “establish an uniform Rule of
Naturalization,” and its inherent power as
sovereign to control and conduct relations with
foreign nations.
The federal power to determine immigration

policy is well settled. Immigration policy can affect
trade, investment, tourism, and diplomatic
relations for the entire Nation, as well as the
perceptions and expectations of aliens in this
country who seek the full protection of its laws.
Perceived mistreatment of aliens in the United
States may lead to harmful reciprocal treatment of
American citizens abroad.
It is fundamental that foreign countries concerned

about the status, safety, and security of their
nationals in the United States must be able to
confer and communicate on this subject with one
national sovereign, not the 50 separate States.
This Court has reaffirmed that “[o]ne of the most
important and delicate of all international
relationships . . . has to do with the protection of
the just rights of a country’s own nationals when
those nationals are in another country.” Hines v.
Davidowitz (1941).
Federal governance of immigration and alien

status is extensive and complex. Congress has
specified categories of aliens who may not be
admitted to the United States. Unlawful entry and
unlawful reentry into the country are federal
offenses. Once here, aliens are required to
register with the Federal Government and to carry
proof of status on their person. Failure to do so is
a federal misdemeanor. Federal law also
authorizes States to deny noncitizens a range of
public benefits, and it imposes sanctions on
employers who hire unauthorized workers. . . .
Discretion in the enforcement of immigration law

embraces immediate human concerns.
Unauthorized workers trying to support their
families, for example, likely pose less danger than
alien smugglers or aliens who commit a serious
crime. The equities of an individual case may turn
on many factors, including whether the alien has
children born in the United States, long ties to the
community, or a record of distinguished military
service. Some discretionary decisions involve
policy choices that bear on this Nation’s
international relations. . . . The dynamic nature of
relations with other countries requires the
Executive Branch to ensure that enforcement
policies are consistent with this Nation’s foreign
policy with respect to these and other realities. . . .
The pervasiveness of federal regulation does not

diminish the importance of immigration policy to
the States. Arizona bears many of the
consequences of unlawful immigration. Hundreds
of thousands of deportable aliens are apprehended
in Arizona each year. Unauthorized aliens who
remain in the State comprise, by one estimate,
almost six percent of the population. And in the
State’s most populous county, these aliens are
reported to be responsible for a disproportionate
share of serious crime. . . .
These concerns are the background for the formal
legal analysis that follows. The issue is whether,
under preemption principles, federal law permits
Arizona to implement the state-law provisions in
dispute.
Federalism, central to the constitutional design,

adopts the principle that both the National and
State Governments have elements of sovereignty
the other is bound to respect. From the existence
of two sovereigns follows the possibility that laws
can be in conflict or at cross-purposes. The
Supremacy Clause provides a clear rule that
federal law “shall be the supreme Law of the
Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” Under
this principle, Congress has the power to preempt
state law. See Crosby v. National Foreign Trade
Council (2000); Gibbons v. Ogden (1824). There is
no doubt that Congress may withdraw specified
powers from the States by enacting a statute
containing an express preemption provision.
State law must also give way to federal law in at

least two other circumstances. First, the States
are precluded from regulating conduct in a field
that Congress, acting within its proper authority,
has determined must be regulated by its exclusive
governance. The intent to displace state law
altogether can be inferred from a framework of
regulation “so pervasive . . . that Congress left no
room for the States to supplement it” or where
there is a “federal interest . . . so dominant that
the federal system will be assumed to preclude
enforcement of state laws on the same subject.”
Rice v. Santa Fe Elevator Corp. (1947).
Second, state laws are preempted when they

conflict with federal law. This includes cases
where “compliance with both federal and state
regulations is a physical impossibility,” and those
instances where the challenged state law “stands
as an obstacle to the accomplishment and
execution of the full purposes and objectives of
Congress,” Hines. In preemption analysis, courts
should assume that “the historic police powers of
the States” are not superseded “unless that was
the clear and manifest purpose of Congress.” Rice;
see Wyeth v. Levine (2009).
The four challenged provisions of the state law

each must be examined under these preemption
principles.
Section 3
Section 3 of S. B. 1070 creates a new state
misdemeanor. It forbids the “willful failure to
complete or carry an alien registration document .
. . in violation of 8 United States Code section
1304(e) or 1306(a).” In effect, §3 adds a state-law
penalty for conduct proscribed by federal law. The
United States contends that this state
enforcement mechanism intrudes on the field of
alien registration, a field in which Congress has
left no room for States to regulate.
The Court discussed federal alien-registration

requirements in Hines v. Davidowitz. In 1940, as
international conflict spread, Congress added to
federal immigration law a “complete system for
alien registration.” The new federal law struck a
careful balance. It punished an alien’s willful
failure to register but did not require aliens to
carry identification cards. There were also limits
on the sharing of registration records and
fingerprints. The Court found that Congress
intended the federal plan for registration to be a
“single integrated and all-embracing system.”
Because this “complete scheme . . . for the
registration of aliens” touched on foreign
relations, it did not allow the States to “curtail or
complement” federal law or to “enforce additional
or auxiliary regulations.” As a consequence, the
Court ruled that Pennsylvania could not enforce
its own alien-registration program.
The present regime of federal regulation is not

identical to the statutory framework considered in
Hines, but it remains comprehensive. . . .
The framework enacted by Congress leads to the

conclusion here, as it did in Hines, that the
Federal Government has occupied the field of
alien registration. The federal statutory directives
provide a full set of standards governing alien
registration, including the punishment for
noncompliance. It was designed as a “harmonious
whole.” Where Congress occupies an entire field,
as it has in the field of alien registration, even
complementary state regulation is impermissible.
Field preemption reflects a congressional decision
to foreclose any state regulation in the area, even
if it is parallel to federal standards. See Silkwood
v. Kerr-McGee Corp. (1984).
Federal law makes a single sovereign responsible
for maintaining a comprehensive and unified
system to keep track of aliens within the Nation’s
borders. If §3 of the Arizona statute were valid,
every State could give itself independent authority
to prosecute federal registration violations,
“diminish[ing] the [Federal Government]’s control
over enforcement” and “detract[ing] from the
‘integrated scheme of regulation’ created by
Congress.” Wisconsin Dept. of Industry v. Gould
Inc. (1986). Even if a State may make violation of
federal law a crime in some instances, it cannot do
so in a field (like the field of alien registration)
that has been occupied by federal law. . . .
These specific conflicts between state and federal

law simply underscore the reason for field
preemption. As it did in Hines, the Court now
concludes that, with respect to the subject of alien
registration, Congress intended to preclude States
from “complement[ing] the federal law, or
enforc[ing] additional or auxiliary regulations.”
Section 3 is preempted by federal law.
Section 5(C)
Unlike §3, which replicates federal statutory
requirements, §5(C) enacts a state criminal
prohibition where no federal counterpart exists.
The provision makes it a state misdemeanor for
“an unauthorized alien to knowingly apply for
work, solicit work in a public place or perform
work as an employee or independent contractor”
in Arizona. Violations can be punished by a $2,500
fine and incarceration for up to six months. The
United States contends that the provision upsets
the balance struck by the Immigration Reform and
Control Act of 1986 (IRCA) and must be
preempted as an obstacle to the federal plan of
regulation and control. . . .
. . . Congress enacted IRCA as a comprehensive

framework for “combating the employment of
illegal aliens.” Hoffman Plastic Compounds, Inc. v.
NLRB (2002). The law makes it illegal for
employers to knowingly hire, recruit, refer, or
continue to employ unauthorized workers. It also
requires every employer to verify the employment
authorization status of prospective employees.
These requirements are enforced through criminal
penalties and an escalating series of civil penalties
tied to the number of times an employer has
violated the provisions.
This comprehensive framework does not impose

federal criminal sanctions on the employee side
(i.e., penalties on aliens who seek or engage in
unauthorized work). . . .
The legislative background of IRCA underscores

the fact that Congress made a deliberate choice
not to impose criminal penalties on aliens who
seek, or engage in, unauthorized employment. . . .
IRCA’s framework reflects a considered judgment
that making criminals out of aliens engaged in
unauthorized work—aliens who already face the
possibility of employer exploitation because of
their removable status—would be inconsistent
with federal policy and objectives. . . .
The ordinary principles of preemption include the

well-settled proposition that a state law is
preempted where it “stands as an obstacle to the
accomplishment and execution of the full purposes
and objectives of Congress.” Hines. Under §5(C) of
S. B. 1070, Arizona law would interfere with the
careful balance struck by Congress with respect to
unauthorized employment of aliens. Although
§5(C) attempts to achieve one of the same goals as
federal law—the deterrence of unlawful
employment—it involves a conflict in the method
of enforcement. The Court has recognized that a
“[c]onflict in technique can be fully as disruptive
to the system Congress enacted as conflict in
overt policy.” Motor Coach Employees v. Lockridge
(1971). The correct instruction to draw from the
text, structure, and history of IRCA is that
Congress decided it would be inappropriate to
impose criminal penalties on aliens who seek or
engage in unauthorized employment. It follows
that a state law to the contrary is an obstacle to
the regulatory system Congress chose. Section
5(C) is preempted by federal law.
Section 6
Section 6 of S. B. 1070 provides that a state
officer, “without a warrant, may arrest a person if
the officer has probable cause to believe . . . [the
person] has committed any public offense that
makes [him] removable from the United States.”
The United States argues that arrests authorized
by this statute would be an obstacle to the
removal system Congress created.
As a general rule, it is not a crime for a removable

alien to remain present in the United States. See
INS v. Lopez-Mendoza (1984). If the police stop
someone based on nothing more than possible
removability, the usual predicate for an arrest is
absent. When an alien is suspected of being
removable, a federal official issues an
administrative document called a Notice to
Appear. The form does not authorize an arrest.
Instead, it gives the alien information about the
proceedings, including the time and date of the
removal hearing. If an alien fails to appear, an in
absentia order may direct removal.
The federal statutory structure instructs when it is

appropriate to arrest an alien during the removal
process. For example, the Attorney General can
exercise discretion to issue a warrant for an
alien’s arrest and detention “pending a decision
on whether the alien is to be removed from the
United States.” And if an alien is ordered removed
after a hearing, the Attorney General will issue a
warrant. . . . [W]arrants are executed by federal
officers who have received training in the
enforcement of immigration law. . . .
Section 6 attempts to provide state officers even

greater authority to arrest aliens on the basis of
possible removability than Congress has given to
trained federal immigration officers. Under state
law, officers who believe an alien is removable by
reason of some “public offense” would have the
power to conduct an arrest on that basis
regardless of whether a federal warrant has
issued or the alien is likely to escape. This state
authority could be exercised without any input
from the Federal Government about whether an
arrest is warranted in a particular case. This
would allow the State to achieve its own
immigration policy. The result could be
unnecessary harassment of some aliens (for
instance, a veteran, college student, or someone
assisting with a criminal investigation) whom
federal officials determine should not be removed.
This is not the system Congress created. . . .
By authorizing state officers to decide whether an

alien should be detained for being removable, §6
violates the principle that the removal process is
entrusted to the discretion of the Federal
Government. A decision on removability requires a
determination whether it is appropriate to allow a
foreign national to continue living in the United
States. Decisions of this nature touch on foreign
relations and must be made with one voice. . . .
Congress has put in place a system in which state

officers may not make warrantless arrests of
aliens based on possible removability except in
specific, limited circumstances. By nonetheless
authorizing state and local officers to engage in
these enforcement activities as a general matter,
§6 creates an obstacle to the full purposes and
objectives of Congress. Section 6 is preempted by
federal law.
Section 2(B)
Section 2(B) of S. B. 1070 requires state officers to
make a “reasonable attempt . . . to determine the
immigration status” of any person they stop,
detain, or arrest on some other legitimate basis if
“reasonable suspicion exists that the person is an
alien and is unlawfully present in the United
States.” The law also provides that “[a]ny person
who is arrested shall have the person’s
immigration status determined before the person
is released.” . . .
Three limits are built into the state provision.

First, a detainee is presumed not to be an alien
unlawfully present in the United States if he or
she provides a valid Arizona driver’s license or
similar identification. Second, officers “may not
consider race, color or national origin . . . except
to the extent permitted by the United States [and]
Arizona Constitution[s].” Third, the provisions
must be “implemented in a manner consistent
with federal law regulating immigration,
protecting the civil rights of all persons and
respecting the privileges and immunities of United
States citizens.”
The United States and its amici contend that, even

with these limits, the State’s verification
requirements pose an obstacle to the framework
Congress put in place. The first concern is the
mandatory nature of the status checks. The
second is the possibility of prolonged detention
while the checks are being performed. . . .
The nature and timing of this case counsel caution

in evaluating the validity of §2(B). The Federal
Government has brought suit against a sovereign
State to challenge the provision even before the
law has gone into effect. There is a basic
uncertainty about what the law means and how it
will be enforced. At this stage, without the benefit
of a definitive interpretation from the state courts,
it would be inappropriate to assume §2(B) will be
construed in a way that creates a conflict with
federal law. As a result, the United States cannot
prevail in its current challenge. This opinion does
not foreclose other preemption and constitutional
challenges to the law as interpreted and applied
after it goes into effect. . . .
The National Government has significant power to

regulate immigration. With power comes
responsibility, and the sound exercise of national
power over immigration depends on the Nation’s
meeting its responsibility to base its laws on a
political will informed by searching, thoughtful,
rational civic discourse. Arizona may have
understandable frustrations with the problems
caused by illegal immigration while that process
continues, but the State may not pursue policies
that undermine federal law.
The United States has established that §§3, 5(C),

and 6 of S. B. 1070 are preempted. It was
improper, however, to enjoin §2(B) before the state
courts had an opportunity to construe it and
without some showing that enforcement of the
provision in fact conflicts with federal immigration
law and its objectives.

Ninth Circuit is affirmed in part and reversed in
part. The case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring in
The United States is an indivisible “Union of
sovereign States.” Today’s opinion, approving
virtually all of the Ninth Circuit’s injunction
against enforcement of the four challenged
provisions of Arizona’s law, deprives States of
what most would consider the defining
characteristic of sovereignty: the power to exclude
from the sovereign’s territory people who have no
right to be there. Neither the Constitution itself
nor even any law passed by Congress supports
this result. . . .
As is often the case, discussion of the dry legalities

that are the proper object of our attention
suppresses the very human realities that gave rise
to the suit. Arizona bears the brunt of the
country’s illegal immigration problem. Its citizens
feel themselves under siege by large numbers of
illegal immigrants who invade their property,
strain their social services, and even place their
lives in jeopardy. Federal officials have been
unable to remedy the problem, and indeed have
recently shown that they are unwilling to do so.
Thousands of Arizona’s estimated 400,000 illegal
immigrants—including not just children but men
and women under 30—are now assured immunity
from enforcement, and will be able to compete
openly with Arizona citizens for employment.
Arizona has moved to protect its sovereignty—not

in contradiction of federal law, but in complete
compliance with it. The laws under challenge here
do not extend or revise federal immigration
restrictions, but merely enforce those restrictions
more effectively. If securing its territory in this
fashion is not within the power of Arizona, we
should cease referring to it as a sovereign State. I
dissent.
JUSTICE THOMAS, concurring
in part and dissenting in part.
I agree with Justice Scalia that federal
immigration law does not pre-empt any of the
challenged provisions of S. B. 1070. I reach that
conclusion, however, for the simple reason that
there is no conflict between the “ordinary
meanin[g]” of the relevant federal laws and that of
the four provisions of Arizona law at issue here. . .
.
Despite the lack of any conflict between the

ordinary meaning of the Arizona law and that of
the federal laws at issue here, the Court holds that
various provisions of the Arizona law are pre-
empted because they “stan[d] as an obstacle to
the accomplishment and execution of the full
purposes and objectives of Congress.” I have
explained [concurring opinion in Wyeth v. Levine
(2009) and dissenting opinion in Haywood v.
Drown (2009)] that the “purposes and objectives”
theory of implied pre-emption is inconsistent with
the Constitution because it invites courts to
engage in freewheeling speculation about
congressional purpose that roams well beyond
statutory text. Under the Supremacy Clause, pre-
emptive effect is to be given to congressionally
enacted laws, not to judicially divined legislative
purposes. Thus, even assuming the existence of
some tension between Arizona’s law and the
supposed “purposes and objectives” of Congress, I
would not hold that any of the provisions of the
Arizona law at issue here are pre-empted on that
basis.
JUSTICE ALITO, concurring in
I agree with the Court that §2(B) is not pre-
empted. That provision does not authorize or
require Arizona law enforcement officers to do
anything they are not already allowed to do under
existing federal law. The United States’ argument
that §2(B) is pre-empted, not by any federal
statute or regulation, but simply by the
Executive’s current enforcement policy is an
astounding assertion of federal executive power
that the Court rightly rejects.
I also agree with the Court that §3 is pre-empted

by virtue of our decision in Hines v. Davidowitz
(1941). Our conclusion in that case that Congress
had enacted an “all-embracing system” of alien
registration and that States cannot “enforce
additional or auxiliary regulations” forecloses
Arizona’s attempt here to impose additional, state-
law penalties for violations of the federal
registration scheme.
While I agree with the Court on §2(B) and §3, I

part ways on §5(C) and §6. The Court’s holding on
§5(C) is inconsistent with De Canas v. Bica (1976),
which held that employment regulation, even of
aliens unlawfully present in the country, is an area
of traditional state concern. Because state police
powers are implicated here, our precedents
require us to presume that federal law does not
displace state law unless Congress’ intent to do so
is clear and manifest. I do not believe Congress
has spoken with the requisite clarity to justify
invalidation of §5(C). Nor do I believe that §6 is
invalid. Like §2(B), §6 adds virtually nothing to the
authority that Arizona law enforcement officers
already exercise. And whatever little authority
they have gained is consistent with federal law.
Having discussed in this chapter the general

dimensions of federalism and the doctrinal cycles
that have characterized the Supreme Court’s
interpretation of it, we will turn our attention in the
next two chapters to the authority of government to
regulate commerce and to tax and spend. It is in
these two policy realms that some of the most
significant and controversial disputes over the
division of federal and state powers have occurred.
Annotated Readings
General books on federalism, including the founding
period and McCulloch v. Maryland, are Robert Allen,
The Ordeal of the Constitution: The Antifederalists
and the Ratification Struggle of 1787–1788
(Norman: University of Oklahoma Press, 1966);
Raoul Berger, Federalism: The Founders’ Design
Erwin Chemerinsky, Enhancing Government:
Federalism for the 21st Century (Palo Alto, CA:
Stanford University Press, 2008); Richard E. Ellis,
Aggressive Nationalism: McCulloch v. Maryland and
the Foundation of Federal Authority in the Young
Republic (New York: Oxford University Press, 2007);
Malcolm M. Feeley and Edward Rubin, Federalism:
Political Identity and Tragic Compromise (Ann
Arbor: University of Michigan Press, 2008); Michael
J. Glennon and Robert D. Sloane, Foreign Affairs
Federalism: The Myth of National Exclusivity (New
York: Oxford University Press, 2016); Gerald
Gunther, ed., John Marshall’s Defense of McCulloch
v. Maryland (Stanford, CA: Stanford University
Press, 1969); Alison L. LaCroix, The Ideological
Origins of American Federalism (Cambridge, MA:
Harvard University Press, 2011); Laura Langer,
Judicial Review in State Supreme Courts: A
Comparative Study (Albany: State University of New
York Press, 2002); Alpheus Mason, The States Rights
Debate: Anti-Federalism and the Constitution
(Englewood Cliffs, NJ: Prentice Hall, 1964); Robert F.
Nagel, The Implosion of American Federalism (New
York: Oxford University Press, 2001); John D.
Nugent, Safeguarding Federalism: How States
Protect Their Interests in National Policy Making
David Brian Robertson, Federalism and the Making
of America (New York: Routledge, 2018); John R.
Schmidhauser, The Supreme Court as Final Arbiter
in Federal-State Relations, 1789–1957 (Chapel Hill:
University of North Carolina Press, 1958); and Eric
N. Waltenburg and Bill Swinford, Litigating
Federalism: The States before the U.S. Supreme
Court (Westport, CT: Greenwood Press, 1999).
On the Tenth and Eleventh Amendments and

preemption, see William W. Buzbee, ed., Preemption
Choice: The Theory, Law, and Reality of Federalism’s
Core Question (Cambridge, UK: Cambridge
University Press, 2009); Mark R. Killenbeck, ed., The
Tenth Amendment and State Sovereignty (Lanham,
MD: Rowman & Littlefield, 2002); and John V. Orth,
The Judicial Power of the United States: The
Eleventh Amendment in American History (New
Chapter Seven The
Commerce Power
CONSIDER the following laws:
The Sherman Anti-Trust Act, designed to outlaw

monopolies that attempt to dominate particular
industries and eliminate all competition
The Fair Labor Standards Act, aimed at ensuring
that employers pay their employees fair wages
and that employers do not force employees to
work unreasonable numbers of hours
The Civil Rights Act of 1964, which prohibits
certain forms of discrimination on the basis of
race, color, religion, or national origin
These three laws may cover different subjects, but

they are alike in one important regard: Congress
enacted them under its power “to regulate
Commerce . . . among the several States.”
Given the importance of these and the many other

laws Congress has passed under its commerce
power, it is no wonder that these few words have
resulted in many controversies and substantial
litigation. Concern over the exercise of the power to
regulate commerce was present at the Constitution’s
birth and continues today. At each stage of the
nation’s development from a former colony isolated
from the world’s commercial centers to a country
wielding vast economic power, legal disputes of
great significance tested the powers of government
to regulate the economy. During certain periods,
such as John Marshall’s chief justiceship, the
decisions of the Supreme Court enhanced the role of
the federal government in promoting economic
development. At other times, however, such as the
period immediately following the Great Depression,
the Court’s interpretations thwarted the
government’s attempts to overcome economic
collapse. From the earliest days of the nation, battles
over the commerce power have raised basic
questions: What is commerce? What is commerce
among the states (now called interstate commerce)?
How do we distinguish interstate commerce from
intrastate commerce? What does it mean to
regulate? What powers of commercial regulation
does the Constitution grant to the federal
government, and what powers remain with the
states?
Rather than address these questions individually, in

this chapter we explore the development of the
commerce power chronologically. We take this
approach because, as we have just suggested, the
Court has answered such questions in various ways
in different eras, sometimes enhancing the federal
government’s power and sometimes curtailing it.
These phases tend to correspond to the cyclical
debate between dual and cooperative federalism that
we considered in Chapter 6 (see Table 6-2). Keep in
mind, however, that at times justices who adopt the
tools of the dual federalism approach—especially the
Tenth Amendment and narrower approaches to
defining interstate commerce—are more committed
to an antiregulation regime than they are to states’
rights.
Foundations of the Commerce

Power
A primary reason for the Constitutional Convention
was the inability of the government under the
Articles of Confederation to control the country’s
commercial activity effectively. Economic conditions
were dismal following the Revolutionary War. The
national and state governments were deeply in debt.
The tax base of the newly independent nation was
minimal, and commerce was undeveloped, leaving
property taxes and customs duties as the primary
sources of government funds.
The states were almost exclusively in charge of

economic regulation. To raise enough revenue to pay
their debts, the states imposed substantial taxes on
land, placing farmers in an economically precarious
condition. The states also erected trade barriers and
imposed duties on the importation of foreign goods.
Although these policies were enacted in part to
promote the states’ domestic businesses, the result
was a general strangulation of commercial activity.
Several states printed their own money and passed
statutes canceling debts. With each of the states
working independently, the national economy
continued to slide into stagnation, and, for all
practical purposes, the central government was
powerless to respond effectively.
When agrarian interests reached their economic

breaking point—culminating in the 1787 march on
the federal arsenal at Springfield, Massachusetts, by
a makeshift army of farmers led by Revolutionary
War veteran Daniel Shays and others—it was clear
that something had to be done. Congress called for a
convention to reconsider the status of the Articles of
Confederation, a convention that ultimately resulted
in the drafting of the United States Constitution.
Commerce and the

Constitutional Convention
The delegates to the Constitutional Convention
recognized the necessity of giving the power to
regulate the economy to the central government.
The nation could no longer tolerate the individual
states’ pursuit of independent policies, each having a
different impact on the country’s economic health.
To that end, Article I of the Constitution removed
certain powers from the states and gave the federal
government powers it did not have under the
Articles of Confederation. States could not print
money, impair the obligation of contracts, or tax
imports or exports. The federal government obtained
the authority necessary to impose uniform
regulations for the national economy. Among the
powers granted to the central government were the
authority to tax and impose customs duties, to spend
and borrow, to develop and protect a single
monetary system, and to regulate bankruptcies.
Most important was the authority to regulate
interstate and foreign commerce. Article I, Section
8, states: “The Congress shall have the Power . . . to
regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.”
The need for Congress to speak for the nation with a

single voice on these matters was clear to the
framers. Even Alexander Hamilton and James
Madison, who disagreed on many questions of
federalism, were in accord on the necessity of the
central government to control interstate and foreign
commerce. Hamilton wrote in Federalist Paper No.
22:
In addition to the defects already enumerated in

the existing federal system, there are others of
not less importance which concur in rendering it
altogether unfit for the administration of the
affairs of the Union.
The want of a power to regulate commerce is by

all parties allowed to be of the number.
In Federalist No. 42 Madison took a similar position,
arguing that the experience of the United States
under the articles, as well as that of European
countries, demonstrated that a central government
without broad powers over the nation’s commerce
was destined to fail.
Congress quickly seized on the authority to regulate

commerce with other nations. Almost immediately, it
imposed import duties as a means of raising
revenue. The constitutional grant in this area was
clear: the power to regulate foreign commerce, as
well as other matters of foreign policy, was given
unambiguously to the national government, and the
role of the states was eliminated. Since ratification,
the states have challenged congressional supremacy
over foreign commerce only on rare occasions.
The power to regulate interstate commerce,

however, was a different story. Congress was slow in
responding to this grant of authority, and federal
officials continued to view business as an activity
occurring within the borders of the individual states.
In fact, Congress did not pass comprehensive
legislation governing commerce among the states
until the Interstate Commerce Act of 1887.
Marshall Defines the Commerce

Power
The commerce clause gives Congress the power to
“regulate Commerce . . . among the Several states.”
But what do these terms—“regulate,” “commerce,”
and “among”—mean? The history of the commerce
clause is replete with disputes over definitions. Is
“commerce” limited to buying and selling goods, or
is its meaning broad enough to include other
activities, such as manufacturing and production?
What about “among”? How should we distinguish
interstate commerce, which, according to the
Constitution, the federal government regulates, from
intrastate commerce, over which the states may
retain regulatory power? Problems associated with
such distinctions were difficult enough in the early
years, but they became even more complex as the
economy grew and the country changed from
agrarian to industrialized. As many constitutional
law cases illustrate, disputes over commercial
regulatory authority often involve power struggles
between the national government and the states.
Aaron Ogden
The Granger Collection
Thomas Gibbons
Gibbons Family Papers, Special Collections and

Archives, Drew University Library
Disputes over the meaning of the commerce clause
came to the Supreme Court even during the early
years of nationhood. The justices probed the
constitutional definition of “commerce” and the
proper division of federal and state power to
regulate it. Of the commerce cases decided by the
Supreme Court in those early decades, none was
more important than Gibbons v. Ogden (1824). This
dispute involved some of the nation’s most
prominent and powerful businessmen and attorneys.
A great deal was at stake, both economically and
politically. In his opinion for the Court, Chief Justice
John Marshall responded to the fundamental
problems of defining the power to regulate
commerce among the states. His answers to the
questions presented in this case are still very much a
part of our constitutional fabric.
Gibbons v. Ogden 22 U.S. (9 Wheat.) 1 (1824)
court/22/1.html
Vote: 6 (Duvall, Johnson, Marshall, Story, Todd,

Washington)

NOT PARTICIPATING: Thompson
Facts:
This complicated litigation can be traced back to
1798, when the New York legislature granted the
wealthy and prominent Robert R. Livingston a
monopoly to operate steamboats on all waters
within the state, including the two most important
commercial waterways, New York Harbor and the
Hudson River. New York officials did not see the
monopoly grant as particularly important because
no one had yet developed a steamship that could
operate reliably and profitably. Livingston,
however, joined forces with Robert Fulton, and
together they produced a commercially viable
steamship. This mode of transportation became
extremely popular and very profitable for the
partners. When they obtained a similar monopoly
over the port of New Orleans in 1811, they had
significant control over the nation’s two most
important harbors.
The rapid westward expansion taking place at that

time fueled the need for modern transportation
systems. The Livingston-Fulton monopoly,
however, put a damper on the use of steam
engines in the evolution of such a system. The
New York monopoly was so strong and so
vigorously enforced that retaliatory laws were
enacted by other states, which refused to let
steam-powered vessels from New York use their
waters. Especially hostile relations developed
between New York and New Jersey, and violence
between the crews of rival companies became
common. Livingston died in 1813, followed two
years later by Fulton, but their monopoly lived on.
Aaron Ogden, a former governor of New Jersey,

and Thomas Gibbons, a successful Georgia lawyer,
entered into a partnership to carry passengers
between New York City and Elizabethtown, New
Jersey. Ogden had purchased the right to operate
in New York waters from the Livingston-Fulton
monopoly, and Gibbons had a federal permit
issued under the 1793 Coastal Licensing Act to
operate steamships along the coast. With these
grants of authority the two partners could carry
passengers between New York and New Jersey.
The leaders of the New York monopoly, however,
pressured Ogden to terminate his relationship
with Gibbons and to join them. As a result, the
Ogden-Gibbons partnership dissolved.
Gibbons then joined forces with Cornelius

Vanderbilt, and they began a fierce competition
with Ogden and the New York monopoly interests.
Gibbons and Vanderbilt entered New York waters
in violation of the monopoly whenever they could,
picking up as much New York business as
possible. In response, Ogden successfully
convinced the New York courts to enjoin Gibbons
from entering New York waters. Gibbons appealed
this ruling to the U.S. Supreme Court.
To press their case, Gibbons and Vanderbilt

acquired the services of two of the best lawyers of
the day, William Wirt and Daniel Webster. Wirt, the
attorney general of the United States, argued that
the federal permit issued to Gibbons took
precedence over any state-issued monopoly, and
therefore Gibbons had the right to enter New York
waters. Webster took a more radical position,
explicitly stating that the commerce clause of the
Constitution gave Congress near exclusive power
over commerce and that the state-granted
monopoly was a violation of that clause. Ogden’s
lawyer responded that navigation was not
commerce under the meaning of the Constitution
but instead was an intrastate enterprise left to the
states to regulate. The oral arguments in the case
lasted four and a half days.
Arguments:
For the appellant, Thomas Gibbons:
Although not all regulations that might affect

commerce are exclusively in the power of
Congress, the power exercised by the state in
this case is a federal power that did not remain
with the states in the Constitution.
The power to regulate commerce is crucial to
the nation’s well-being. In establishing the
Constitution, the people understood this and
transferred the commerce power from the
states to the federal government so that a
uniform and general system could be
maintained. What is regulated here is not the
commerce of the several states, respectively,
but the commerce of the United States.
The inevitable consequence of this analysis is
that Congress may establish ferries and
turnpikes and may regulate in other ways that
touch the interior of states.
For the respondent, Aaron

Ogden:
The Constitution provides for limited and
expressly delegated powers, which can be
exercised only as granted, or in the cases
enumerated. This principle, which distinguishes
the national from the state governments,
follows from the fact that the Constitution itself
is a delegation of power, not a restriction of
power previously possessed and from the
express stipulation in the Tenth Amendment.
The Constitution must be construed strictly
with regard to the powers expressly granted.
Every portion of power not granted must
remain with the states.
The practice of the states shows that the
commerce power has always been considered
concurrent. New York has passed numerous
laws that are regulations of commerce with
foreign nations, with other states, and with the
Indian tribes. The state may exercise its power,
so long as its laws do not interfere with any
right exercised under the Constitution or laws
of the United States.
The commerce power is not only concurrent
but also limited in Congress. It does not extend
to the regulation of the internal commerce of
any state because terms used in the grant of
power are “among the several States.” Internal
commerce is that which is carried on within the
limits of a state.
The state law does not even regulate
commerce; it regulates internal trade and the
right of navigation within a state. This belongs
exclusively to the states, even though it
incidentally may affect the right of intercourse
between the states.
Mr. Chief Justice Marshall Delivered the
The appellant contends that this decree is

erroneous, because the laws which purport to give
the exclusive privilege it sustains, are repugnant
to the constitution and laws of the United States.
They are said to be repugnant—
To that clause in the constitution which authorizes

Congress to regulate commerce. . . .
The words are, “Congress shall have power to

regulate commerce with foreign nations, and
among the several States, and with the Indian
tribes.”
The subject to be regulated is commerce; and our

constitution being . . . one of enumeration, and not
of definition, to ascertain the extent of the power,
it becomes necessary to settle the meaning of the
word. The counsel for the appellee would limit it
to traffic, to buying and selling, or the interchange
of commodities, and do not admit that it
comprehends navigation. This would restrict a
general term, applicable to many objects, to one of
its significations. Commerce, undoubtedly, is
traffic, but it is something more: it is intercourse.
It describes the commercial intercourse between
nations, and parts of nations, in all its branches,
and is regulated by prescribing rules for carrying
on that intercourse. The mind can scarcely
conceive a system for regulating commerce
between nations, which shall exclude all laws
concerning navigation, which shall be silent on the
admission of the vessels of the one nation into the
ports of the other, and be confined to prescribing
rules for the conduct of individuals, in the actual
employment of buying and selling, or of barter.
If commerce does not include navigation, the

government of the Union has no direct power over
that subject, and can make no law prescribing
what shall constitute American vessels, or
requiring that they shall be navigated by American
seamen. Yet this power has been exercised from
the commencement of the government, has been
exercised with the consent of all, and has been
understood by all to be a commercial regulation.
All America understands, and has uniformly
understood, the word “commerce,” to comprehend
navigation. It was so understood, and must have
been so understood, when the constitution was
framed. The power over commerce, including
navigation, was one of the primary objects for
which the people of America adopted their
government, and must have been contemplated in
forming it. The convention must have used the
word in that sense, because all have understood it
in that sense; and the attempt to restrict it comes
too late. . . .
The word used in the constitution, then,

comprehends, and has been always understood to
comprehend, navigation within its meaning; and a
power to regulate navigation, is as expressly
granted, as if that term had been added to the
word “commerce.”
Daniel Webster’s 1821 handwritten note to
Cornelius Vanderbilt acknowledging receipt of a
$500 retainer to represent Thomas Gibbons in the
case of Gibbons v. Ogden.
Gibbons Family Papers, Special Collections

and Archives, Drew University Library
To what commerce does this power extend? The

constitution informs us, to commerce “with
foreign nations, and among the several States, and
with the Indian tribes.”
It has, we believe, been universally admitted, that

these words comprehend every species of
commercial intercourse between the United States
and foreign nations. No sort of trade can be
carried on between this country and any other, to
which this power does not extend. It has been
truly said, that commerce, as the word is used in
the constitution, is a unit, every part of which is
indicated by the term.
If this be the admitted meaning of the word, in its

application to foreign nations, it must carry the
same meaning throughout the sentence, and
remain a unit, unless there be some plain
intelligible cause which alters it.
The subject to which the power is next applied, is
to commerce “among the several States.” The
word “among” means intermingled with. A thing
which is among others, is intermingled with them.
Commerce among the States, cannot stop at the
external boundary line of each State, but may be
introduced into the interior.
It is not intended to say that these words

comprehend that commerce, which is completely
internal, which is carried on between man and
man in a State, or between different parts of the
same State, and which does not extend to or affect
other States. Such a power would be inconvenient,
and is certainly unnecessary.
Comprehensive as the word “among” is, it may

very properly be restricted to that commerce
which concerns more States than one. The phrase
is not one which would probably have been
selected to indicate the completely interior traffic
of a State, because it is not an apt phrase for that
purpose; and the enumeration of the particular
classes of commerce, to which the power was to
be extended, would not have been made, had the
intention been to extend the power to every
description. The enumeration presupposes
something not enumerated; and that something, if
we regard the language or the subject of the
sentence, must be the exclusively internal
commerce of a State. The genius and character of
the whole government seem to be, that its action
is to be applied to all the external concerns of the
nation, and to those internal concerns which affect
the States generally; but not to those which are
completely within a particular State, which do not
affect other States, and with which it is not
necessary to interfere, for the purpose of
executing some of the general powers of the
government. The completely internal commerce of
a State, then, may be considered as reserved for
the State itself.
But, in regulating commerce with foreign nations,

the power of Congress does not stop at the
jurisdictional lines of the several States. It would
be a very useless power, if it could not pass those
lines. The commerce of the United States with
foreign nations, is that of the whole United States.
Every district has a right to participate in it. The
deep streams which penetrate our country in
every direction, pass through the interior of
almost every State in the Union, and furnish the
means of exercising this right. If Congress has the
power to regulate it, that power must be exercised
whenever the subject exists. If it exists within the
States, if a foreign voyage may commence or
terminate at a port within a State, then the power
of Congress may be exercised within a State.
This principle is, if possible, still more clear, when

applied to commerce “among the several States.”
They either join each other, in which case they are
separated by a mathematical line, or they are
remote from each other, in which case other
States lie between them. What is commerce
“among” them; and how is it to be conducted? Can
a trading expedition between two adjoining
States, commence and terminate outside of each?
And if the trading intercourse be between two
States remote from each other, must it not
commence in one, terminate in the other, and
probably pass through a third? Commerce among
the States must, of necessity, be commerce with
the States. . . .
We are now arrived at the inquiry—What is this

power?
It is the power to regulate; that is, to prescribe the

rule by which commerce is to be governed. This
than are prescribed in the constitution. . . . If, as
has always been understood, the sovereignty of
Congress, though limited to specified objects, is
plenary as to those objects, the power over
commerce with foreign nations, and among the
several States, is vested in Congress as absolutely
as it would be in a single government, having in its
constitution the same restrictions on the exercise
of the power as are found in the constitution of the
United States. The wisdom and the discretion of
Congress, their identity with the people, and the
influence which their constituents possess at
elections, are, in this, as in many other instances,
as that, for example, of declaring war, the sole
restraints on which they have relied, to secure
them from its abuse. They are the restraints on
which the people must often rely solely, in all
representative governments.
The power of Congress, then, comprehends

navigation, within the limits of every State in the
Union; so far as that navigation may be, in any
manner, connected with “commerce with foreign
nations, or among the several States, or with the
Indian tribes.” It may, of consequence, pass the
jurisdictional line of New York, and act upon the
very waters to which the prohibition now under
consideration applies.
But it has been urged with great earnestness,

that, although the power of Congress to regulate
commerce with foreign nations, and among the
several States, be co-extensive with the subject
itself, and have no other limits than are prescribed
in the constitution, yet the States may severally
exercise the same power, within their respective
jurisdictions. In support of this argument, it is
said, that they possessed it as an inseparable
attribute of sovereignty, before the formation of
the constitution, and still retain it, except so far as
they have surrendered it by that instrument; that
this principle results from the nature of the
government, and is secured by the tenth
amendment; that an affirmative grant of power is
not exclusive, unless in its own nature it be such
that the continued exercise of it by the former
possessor is inconsistent with the grant, and that
this is not of that description.
The appellant, conceding these postulates, except

the last, contends, that full power to regulate a
particular subject, implies the whole power, and
leaves no residuum; that a grant of the whole is
incompatible with the existence of a right in
another to any part of it. . . .
In discussing the question, whether this power is

still in the States, in the case under consideration,
we may dismiss from it the inquiry, whether it is
surrendered by the mere grant to Congress, or is
retained until Congress shall exercise the power.
We may dismiss that inquiry, because it has been
exercised, and the regulations which Congress
deemed it proper to make, are now in full
operation. The sole question is, can a State
regulate commerce with foreign nations and
among the States, while Congress is regulating it?
The counsel for the respondent answer this

question in the affirmative, and rely very much on
the restrictions in the 10th section, as supporting
their opinion. . . .
It has been contended by the general counsel for

the appellant, that, as the word “to regulate”
implies in its nature, full power over the thing to
be regulated, it excludes, necessarily, the action of
all others that would perform the same operation
on the same thing. That regulation is designed for
the entire result, applying to those parts which
remain as they were, as well as to those which are
altered. It produces a uniform whole, which is as
much disturbed and deranged by changing what
the regulating power designs to leave untouched,
as that on which it has operated.
There is great force in this argument, and the

Court is not satisfied that it has been refuted.
Since, however, in exercising the power of

regulating their own purely internal affairs,
whether of trading or police, the States may
sometimes enact laws, the validity of which
depends on their interfering with, and being
contrary to, an act of Congress passed in
pursuance of the constitution, the Court will enter
upon the inquiry, whether the laws of New York,
as expounded by the highest tribunal of that State,
have, in their application to this case, come into
collision with an act of Congress, and deprived a
citizen of a right to which that act entitles him.
Should this collision exist, it will be immaterial
whether those laws were passed in virtue of a
concurrent power “to regulate commerce with
foreign nations and among the several States,” or,
in virtue of a power to regulate their domestic
trade and police. In one case and the other, the
acts of New York must yield to the law of
Congress; and the decision sustaining the
privilege they confer, against a right given by a
law of the Union, must be erroneous. . . .
But the framers of our constitution foresaw this

state of things, and provided for it, by declaring
the supremacy not only of itself, but of the laws
made in pursuance of it. The nullity of any act,
inconsistent with the constitution, is produced by
the declaration, that the constitution is the
supreme law. The appropriate application of that
part of the clause which confers the same
supremacy on laws and treaties, is to such acts of
the State Legislatures as do not transcend their
powers, but, though enacted in the execution of
acknowledged State powers, interfere with, or are
contrary to the laws of Congress, made in
pursuance of the constitution, or some treaty
made under the authority of the United States. In
every such case, the act of Congress, or the treaty,
is supreme; and the law of the State, though
enacted in the exercise of powers not
controverted, must yield to it. . . .
But all inquiry into this subject seems to the Court
to be put completely at rest, by the act already
mentioned, entitled, “An act for the enrolling and
licensing of steam boats.”
This act authorizes a steam boat employed, or

intended to be employed, only in a river or bay of
the United States, owned wholly or in part by an
alien, resident within the United States, to be
enrolled and licensed as if the same belonged to a
citizen of the United States.
This act demonstrates the opinion of Congress,

that steam boats may be enrolled and licensed, in
common with vessels using sails. They are, of
course, entitled to the same privileges, and can no
more be restrained from navigating waters, and
entering ports which are free to such vessels, than
if they were wafted on their voyage by the winds,
instead of being propelled by the agency of fire.
The one element may be as legitimately used as
the other, for every commercial purpose
authorized by the laws of the Union; and the act of
a State inhibiting the use of either to any vessel
having a license under the act of Congress, comes,
we think, in direct collision with that act.
Like his opinions in Marbury and McCulloch,

Marshall’s opinion in Gibbons laid a constitutional
foundation that remains in place today. The decision
made several important points. First, commerce
involves more than buying and selling: it also
includes the commercial intercourse between
nations and states, and therefore transportation and
navigation clearly fall within the definition of
commerce. Second, commerce among the states
begins in one state and ends in another; it does not
stop when the act of crossing a state border is
completed. Consequently, commerce that occurs
within a state may be part of a larger interstate
process. Third, once an act is considered part of
interstate commerce, Congress, according to the
Constitution, may regulate it. The power to regulate
interstate commerce is complete and has no
limitation other than what may be found in other
constitutional provisions. But note that Marshall
rejects Ogden’s argument that the Tenth
Amendment serves as such a limit. In line with his
opinion in McCulloch, Marshall does not find that
the amendment creates an “enclave” of state power.
Instead, he emphasizes that Congress is limited to
its delegated powers (see Chapter 6)—in this case,
the power to regulate interstate commerce, however
broadly defined. This brings us to the fourth point:
because the text of the commerce clause limits
congressional power to regulate commerce among
the states, the power to regulate commerce that
occurs completely within the boundaries of a single
state and does not extend to or affect other states
belongs to the states.
Gibbons v. Ogden was a substantial victory for

national power. It broadly construed the terms
regulate, “Commerce,” and “Commerce . . . among
the several States” (or interstate commerce). But
Marshall did not go as far as Daniel Webster had
urged. The opinion asserts only that Congress has
complete power to regulate interstate commerce and
that federal regulations are superior to any state
laws. The decision does not answer the question of
the legitimacy of states regulating interstate
commerce in the absence of federal action. That
controversy was left for future justices to decide.
Attempts to Define the

Commerce Power in the Wake of
the Industrial Revolution
Marshall provided a clear, if expansive, framework
for the exercise of congressional commerce power,
but the national legislature did not take immediate
advantage of this broad interpretation of its
authority. As a result, commerce clause cases did not
become major items on the Supreme Court’s agenda
until the second half of the nineteenth century. By
that time, small intrastate businesses were giving
way to large interstate corporations. Industrial
expansion blossomed, and the interstate railroad and
pipeline systems were well under way. The infamous
captains of industry were creating large
monopolistic trusts that dominated huge segments of
the national economy, squeezing out small
businesses and discouraging new entrepreneurs.
The industrial combines that controlled the railroads
also, in effect, ruled agriculture and other interests
that relied on the rails to transport goods to market.
This commercial growth brought great prosperity to
some, but it also caused horrendous social problems.
Children worked in sweatshops, and unsafe working
conditions and low wages plagued employees of all
ages, eventually leading to the formation of labor
unions.
In light of these developments, Congress sought to

exert some control over both the economic and the
social concerns following from the rise of big
business. To deal with the former, it passed several
laws—aimed at regulating business practices—based
in its commerce power. In the case of social
problems, it began to make use of the commerce
clause as a federal police power—that is, the
government’s authority to regulate for the health,
safety, morals, and general welfare of its citizens.
Critics immediately attacked Congress for exceeding

its constitutional authority. Their primary argument
was that the laws regulated intrastate activity, not
“Commerce . . . among the several States,” and so
Congress had overstepped its power; the regulation
of intrastate activity was reserved to the states
under the Tenth Amendment. In the social realm,
they also questioned whether laws motivated by
morality considerations were an appropriate
exercise of the commerce power and whether laws
that prohibited particular kinds of activities—for
example, shipping lottery tickets across state lines—
fell within Congress’s power “to regulate”
commerce.
In what follows, we consider the Court’s response to
these arguments, beginning with the debate over
intra- versus interstate commerce, and moving next
to the use of commerce as a federal police power. As
you read the cases, consider whether the developing
doctrine was compatible with Marshall’s
foundational decision in Gibbons.
Defining Interstate Commerce

As we just noted, in the wake of the rise of big
business, Congress passed several laws based on its
commerce power. Two are particularly notable: the
Interstate Commerce Act of 1887, which established
a mechanism for regulating the nation’s interstate
railroads, and the Sherman Anti-Trust Act of 1890
(hereafter Sherman Act), which was designed to
break up monopolies that restrained trade. Business
interests challenged both, primarily on the ground
that they were regulations not of interstate
commerce, but rather of intrastate activity, which
was the purview of the states, not Congress.
Even with Marshall’s decision in Gibbons,

discriminating between inter- and intrastate
commerce was not easy. The Supreme Court faced a
significant number of appeals that asked the justices
to clarify whether the national legislature had
overstepped its bounds and regulated commerce
that was purely intrastate. To say that the Court had
difficulty developing a coherent doctrine is an
understatement.
Manufacturing and Its Relationship

to Interstate Commerce.
The Court’s endorsement of the federal power to
regulate transportation, navigation, and instruments
of commerce did not extend initially to the attempts
by Congress to impose effective antitrust legislation.
The targets of the antitrust statutes were the
monopolies that controlled basic industries and
choked out all competition. During the late 1800s
these trusts grew to capture and exercise dominance
over many industries, including oil, meatpacking,
sugar, and steel. The Sherman Act was Congress’s
first attempt to break up these anticompetitive
combines. It outlawed all contracts and
combinations of companies that had the effect of
restraining trade and commerce or eliminating
competition.
For the antitrust law to be fully effective, however,

its provisions had to cover the manufacturing and
processing stages of commercial activity, which
raised a serious constitutional problem. In earlier
cases the Court had ruled that manufacturing was
essentially a local activity and not part of interstate
commerce. In Veazie v. Moor (1853), the Court had
labeled it a far-reaching “pretension” to suggest that
the federal power over interstate commerce
extended to manufacturing. Later, in Kidd v.
Pearson (1888), the Court took an even stronger
stand. At issue was an Iowa statute that outlawed
the production of alcoholic beverages. The law was
challenged on the ground that the liquor being
manufactured was intended for interstate shipment
and sale, and consequently, the state was
unconstitutionally regulating interstate commerce.
Speaking for the Court, Justice Lucius Q. C. Lamar

rejected the attack, arguing,
No distinction is more popular to the common

mind, or more clearly expressed in economic and
political literature, than that between
manufactures and commerce. Manufacture is
transformation—the fashioning of raw materials
into a change of form for use. The functions of
commerce are different. The buying and selling
and the transportation incident thereto
constitute commerce.
Could the new antitrust law be applied to

manufacturing? Or had Congress exceeded its
constitutional authority in regulating production?
These questions were answered in United States v.
E. C. Knight Co. (1895), a battle over the federal
government’s attempts to break up the sugar trust.
United States v. E. C. Knight Co. 156 U.S. 1 (1895)

court/156/1.html
Vote: 8 (Brewer, Brown, Field, Fuller, Gray,

Jackson, Shiras, White)
1 (Harlan)
OPINION OF THE COURT: Fuller

DISSENTING OPINION: Harlan
Facts:
At the end of the nineteenth century, six
companies dominated the American sugar refining
industry. The largest was American Sugar Refining
Company, which had control of about 65 percent
of the nation’s refining capacity. Four
Pennsylvania refiners shared 33 percent of the
market, and a Boston company had a scant 2
percent. In March 1892 American Sugar entered
into agreements that allowed it to acquire the four
Pennsylvania refineries, including E. C. Knight
Company, giving it absolute control over 98
percent of the sugar refining business in the
United States.
The federal government sued to have the

acquisition agreements canceled. According to
Justice Department attorneys, the sugar trust
operated as a monopoly in restraint of trade in
violation of the Sherman Act. Attorneys for
American Sugar and the acquired companies held
that the law did not apply to sugar refining
because that activity is manufacturing subject to
state, not federal, control.
E. C. Knight was the Court’s first antitrust case.
The outcome was crucial to the government’s
attempts to break up powerful monopolies. Some
observers have charged that Attorney General
Richard Olney failed to provide the best
prosecution of the case. Olney was not a dedicated
trustbuster; he had opposed the passage of the
antitrust act and later worked for its repeal.1
1 David Savage, Guide to the U.S. Supreme Court,

5th ed. (Washington, DC: CQ Press, 2010), 102.
Arguments:
For the appellant, United States:
The power to control the manufacturing of

sugar is a monopoly over an important good,
which cannot be enjoyed by most Americans
unless it is shipped in interstate commerce. As
a result, the federal government, in the
exercise of its power to regulate commerce,
may prohibit monopolies directly and set aside
the instruments that have created them.
The products of these refineries were sold and
distributed among the states; therefore, all the
companies were engaged in trade or
commerce with several states and other
nations.
For the appellee, E. C. Knight

Co.:
Congress’s commerce clause power does not
extend to articles that are manufactured
simply because they are manufactured with an
intent to sell later to citizens of the same state
or another. No article is part of trade or
commerce, which can be regulated by
Congress, until it is put in the way of transit.
Congress can only regulate trade and
commerce between the states (contracts to
buy, sell, exchange goods to be transported,
the actual transportation, and the
instrumentalities of transportation). There is, in
short, a distinction between manufacturing and
commerce.
If businesses agree that they will not transport
goods from one state to another, they make a
contract in restraint of trade between the
states. If, however, they simply agree that they
will not manufacture goods within a certain
state, even if this results in no trade in the
goods with other states, Congress cannot
interfere because the agreement pertains to
manufacturing, not commerce.
Mr. Chief Justice Fuller Delivered the Opinion

of the Court.
The fundamental question is, whether conceding

that the existence of a monopoly in manufacture is
established by the evidence, that monopoly can be
directly suppressed under the act of Congress in
the mode attempted by this bill.
It cannot be denied that the power of a State to
protect the lives, health, and property of its
citizens, and to preserve good order and the
public morals, “the power to govern men and
things within the limits of its dominion,” is a
power originally and always belonging to the
States, not surrendered by them to the general
government, not directly restrained by the
Constitution of the United States, and essentially
exclusive. The relief of the citizens of each State
from the burden of monopoly and the evils
resulting from the restraint of trade among such
citizens was left with the States to deal with, and
this court has recognized their possession of that
power even to the extent of holding that an
employment or business carried on by private
individuals, when it becomes a matter of such
public interest and importance as to create a
common charge or burden upon the citizen; in
other words, when it becomes a practical
monopoly, to which the citizen is compelled to
resort and by means of which a tribute can be
exacted from the community, is subject to
regulation by state legislative power. On the other
hand, the power of Congress to regulate
commerce among the several States is also
exclusive. The Constitution does not provide that
interstate commerce shall be free, but, by the
grant of this exclusive power to regulate it, it was
left free except as Congress might impose
restraints. Therefore it has been determined that
the failure of Congress to exercise this exclusive
power in any case is an expression of its will that
the subject shall be free from restrictions or
impositions upon it by the several States, and if a
law passed by a State in the exercise of its
acknowledged powers comes into conflict with
that will, the Congress and the State cannot
occupy the position of equal opposing
sovereignties, because the Constitution declares
its supremacy and that of the laws passed in
pursuance thereof; and that which is not supreme
must yield to that which is supreme. “Commerce,
undoubtedly, is traffic,” said Chief Justice
Marshall, “but it is something more; it is
intercourse. It describes the commercial
intercourse between nations and parts of nations
in all its branches, and is regulated by prescribing
rules for carrying on that intercourse.” That which
belongs to commerce is within the jurisdiction of
the United States, but that which does not belong
to commerce is within the jurisdiction of the police
power of the State.
The argument is that the power to control the

manufacture of refined sugar is a monopoly over a
necessary of life, to the enjoyment of which by a
large part of the population of the United States
interstate commerce is indispensable, and that,
therefore, the general government in the exercise
of the power to regulate commerce may repress
such monopoly directly and set aside the
instruments which have created it. But this
argument cannot be confined to necessaries of life
merely, and must include all articles of general
consumption. Doubtless the power to control the
manufacture of a given thing involves in a certain
sense the control of its disposition, but this is a
secondary and not the primary sense; and
although the exercise of that power may result in
bringing the operation of commerce into play, it
does not control it, and affects it only incidentally
and indirectly. Commerce succeeds to
manufacture, and is not a part of it. The power to
regulate commerce is the power to prescribe the
rule by which commerce shall be governed, and is
a power independent of the power to suppress
monopoly. But it may operate in repression of
monopoly whenever that comes within the rules
by which commerce is governed or whenever the
transaction is itself a monopoly of commerce.
It is vital that the independence of the commercial

power and of the police power, and the
delimitation between them, however sometimes
perplexing, should always be recognized and
observed, for while the one furnishes the
strongest bond of union, the other is essential to
the preservation of the autonomy of the States as
required by our dual form of government; and
acknowledged evils, however grave and urgent
they may appear to be, had better be borne, than
the risk be run, in the effort to suppress them, of
more serious consequences by resort to
expedients of even doubtful constitutionality.
It will be perceived how far-reaching the

proposition is that the power of dealing with a
monopoly directly may be exercised by the general
government whenever interstate or international
commerce may be ultimately affected. The
regulation of commerce applies to the subjects of
commerce and not to matters of internal police.
Contracts to buy, sell, or exchange goods to be
transported among the several States, the
transportation and its instrumentalities, and
articles bought, sold, or exchanged for the
purposes of such transit among the States, or put
in the way of transit, may be regulated, but this is
because they form part of interstate trade or
commerce. The fact that an article is
manufactured for export to another State does not
of itself make it an article of interstate commerce,
and the intent of the manufacturer does not
determine the time when the article or product
passes from the control of the States and belongs
to commerce. This was so ruled in Coe v. Errol
[1886], in which the question before the court was
whether certain logs cut at a place in New
Hampshire and hauled to a river town for the
purpose of transportation to the State of Maine
were liable to be taxed like other property in the
State of New Hampshire. Mr. Justice Bradley,
delivering the opinion of the court, said: “Does the
owner’s state of mind in relation to the goods, that
is, his intent to export them, and his partial
preparation to do so, exempt them from taxation?
This is the precise question for solution. . . .There
must be a point of time when they cease to be
governed exclusively by the domestic law and
begin to be governed and protected by the
national law of commercial regulation, and that
moment seems to us to be a legitimate one for this
purpose, in which they commence their final
movement from the State of their origin to that of
their destination.”
And again, in Kidd v. Pearson, where the question

was discussed whether the right of a State to
enact a statute prohibiting within its limits the
manufacture of intoxicating liquors, except for
certain purposes, could be overthrown by the fact
that the manufacturer intended to export the
liquors when made, it was held that the intent of
the manufacturer did not determine the time when
the article or product passed from the control of
the State and belonged to commerce, and that,
therefore, the statute, in omitting to except from
its operation the manufacture of intoxicating
liquors within the limits of the State for export,
did not constitute an unauthorized interference
with the right of Congress to regulate commerce. .
..
Contracts, combinations, or conspiracies to

control domestic enterprise in manufacture,
agriculture, mining, production in all its forms, or
to raise or lower prices or wages, might
unquestionably tend to restrain external as well as
domestic trade, but the restraint would be an
indirect result, however inevitable and whatever
its extent, and such result would not necessarily
determine the object of the contract, combination,
or conspiracy.
Again, all the authorities agree that in order to

vitiate a contract or combination it is not essential
that its result should be a complete monopoly; it is
sufficient if it really tends to that end and to
deprive the public of the advantages which flow
from free competition. Slight reflection will show
that if the national power extends to all contracts
and combinations in manufacture, agriculture,
mining, and other productive industries, whose
ultimate result may affect external commerce,
comparatively little of business operations and
affairs would be left for state control.
It was in the light of well-settled principles that

the act of July 2, 1890, was framed. Congress did
not attempt thereby to assert the power to deal
with monopoly directly as such; or to limit and
restrict the rights of corporations created by the
States or the citizens of the States in the
acquisition, control, or disposition of property; or
to regulate or prescribe the price or prices at
which such property or the products thereof
should be sold; or to make criminal the acts of
persons in the acquisition and control of property
which the States of their residence or creation
sanctioned or permitted. Aside from the provisions
applicable where Congress might exercise
municipal power, what the law struck at was
combinations, contracts, and conspiracies to
monopolize trade and commerce among the
several States or with foreign nations; but the
contracts and acts of the defendants related
exclusively to the acquisition of the Philadelphia
refineries and the business of sugar refining in
Pennsylvania, and bore no direct relation to
commerce between the States or with foreign
nations. The object was manifestly private gain in
the manufacture of the commodity, but not
through the control of interstate or foreign
commerce. It is true that the bill alleged that the
products of these refineries were sold and
distributed among the several States, and that all
the companies were engaged in trade or
commerce with the several States and with
foreign nations; but this was no more than to say
that trade and commerce served manufacture to
fulfill its function. Sugar was refined for sale, and
sales were probably made at Philadelphia for
consumption, and undoubtedly for resale by the
first purchasers throughout Pennsylvania and
other States, and refined sugar was also
forwarded by the companies to other States for
sale. Nevertheless it does not follow that an
attempt to monopolize, or the actual monopoly of,
the manufacture was an attempt, whether
executory or consummated, to monopolize
commerce, even though, in order to dispose of the
product, the instrumentality of commerce was
necessarily invoked. There was nothing in the
proofs to indicate any intention to put a restraint
upon trade or commerce, and the fact, as we have
seen, that trade or commerce might be indirectly
affected was not enough to entitle complainants to
a decree. . . .
Decree affirmed.
MR. JUSTICE HARLAN,

dissenting.
In my judgment, the citizens of the several States
composing the Union are entitled, of right, to buy
goods in the State where they are manufactured,
or in any other State, without being confronted by
an illegal combination whose business extends
throughout the whole country, which by the law
everywhere is an enemy to the public interests,
and which prevents such buying, except at prices
arbitrarily fixed by it. I insist that the free course
of trade among the States cannot coexist with
such combinations. When I speak of trade I mean
the buying and selling of articles of every kind
that are recognized articles of interstate
commerce. Whatever improperly obstructs the
free course of interstate intercourse and trade, as
involved in the buying and selling of articles to be
carried from one State to another, may be reached
by Congress, under its authority to regulate
commerce among the States. The exercise of that
authority so as to make trade among the States, in
all recognized articles of commerce, absolutely
free from unreasonable or illegal restrictions
imposed by combinations, is justified by an
express grant of power to Congress and would
redound to the welfare of the whole country. I am
unable to perceive that any such result would
imperil the autonomy of the States, especially as
that result cannot be attained through the action
of any one State.
Undue restrictions or burdens upon the

purchasing of goods, in the market for sale, to be
transported to other States, cannot be imposed
even by a State without violating the freedom of
commercial intercourse guaranteed by the
Constitution. But if a State within whose limits the
business of refining sugar is exclusively carried on
may not constitutionally impose burdens upon
purchases of sugar to be transported to other
States, how comes it that combinations of
corporations or individuals, within the same State,
may not be prevented by the national government
from putting unlawful restraints upon the
purchasing of that article to be carried from the
State in which such purchases are made? If the
national power is competent to repress State
action in restraint of interstate trade as it may be
involved in purchases of refined sugar to be
transported from one State to another State,
surely it ought to be deemed sufficient to prevent
unlawful restraints attempted to be imposed by
combinations of corporations or individuals upon
those identical purchases; otherwise, illegal
combinations of corporations or individuals may—
so far as national power and inter-state commerce
are concerned—do, with impunity, what no State
can do. . . .
To the general government has been committed

the control of commercial intercourse among the
States, to the end that it may be free at all times
from any restraints except such as Congress may
impose or permit for the benefit of the whole
country. The common government of all the people
is the only one that can adequately deal with a
matter which directly and injuriously affects the
entire commerce of the country, which concerns
equally all the people of the Union, and which, it
must be confessed, cannot be adequately
controlled by any one State. Its authority should
not be so weakened by construction that it cannot
reach and eradicate evils that, beyond all
question, tend to defeat an object which that
government is entitled, by the Constitution, to
accomplish.
Chief Justice Melville Fuller’s opinion shows the

initial development of the Court’s focus on the extent
to which the various stages of business affect
interstate commerce. Proponents of federal
regulation often argued that if an intrastate
economic activity—whether manufacturing and
production or shipment and distribution—had any
effect on interstate commerce, Congress could
regulate it. The Supreme Court rejected this position
in E. C. Knight. To the Court, commerce is different
from manufacturing and production because
“commerce succeeds to manufacture, and is not a
part of it.” As a result, manufacturing affects
interstate commerce only indirectly and Congress
may not regulate it; rather, it is a local matter that is
up to the states to regulate. Fuller’s comments also
indicate his position that activities in such areas as
agriculture and mining fall into the same regulatory
category as manufacturing. Federal authority
becomes activated only when the intrastate activity
has a direct effect on interstate commerce. In the
sugar trust case, Fuller concluded that the
challenged monopoly of refining facilities had only
an indirect effect on interstate commerce and
therefore was not subject to federal regulation.
While the distinction between direct and indirect
effects could be interpreted various ways,
conservative Courts continued to use it to strike
down other federal regulatory attempts.
Although E. C. Knight removed manufacturing from

the authority of the Sherman Act, it did not doom
federal antitrust efforts. In fact, when the
monopolistic activity was not manufacturing, the
Court was quite willing to apply the law. For
example, the Court held that companies engaged in
production and interstate sale of pipe came under
the sections of the Sherman Act.2 In 1904 the Court
went even farther, ruling in Northern Securities
Company v. United States that stock transactions
creating a holding company (the result of an
effective merger between the Northern Pacific and
Great Northern Railroad companies) were subject to
Sherman Act scrutiny. In spite of these applications
of the antitrust law, E. C. Knight set an important
precedent, declaring manufacturing to be outside
the definition of interstate commerce. This ruling
later would be extended, with serious repercussions,
to bar many of the New Deal programs passed to
combat the Great Depression. It was only at such a
time of economic collapse that the wisdom expressed
in Justice John Marshall Harlan [I]’s dissent in E. C.
Knight became apparent: the federal government
must be empowered to regulate economic evils that
are injurious to the nation’s commerce and that a
single state is incapable of eradicating.
2 Addyston Pipe and Steel Co. v. United States

(1899).
The Shreveport Doctrine.

The regulation of the railroads provided the Court an
early opportunity to refine the definition of interstate
commerce. The first railroads were small local
operations regulated by the states, but as interstate
rail systems developed, the justices held that their
regulation was rightfully a federal responsibility.3
Congress responded by passing the Interstate
Commerce Act of 1887, which created the Interstate
Commerce Commission (ICC) to regulate railroads
and set rates. The Court approved the
constitutionality of the commission but later stripped
it of its ability to set rates.4 In 1906 Congress
revised the authority and procedures of the
commission and reestablished its rate-setting power.
3 Wabash, St. Louis & Pacific Railway Co. v. Illinois

(1886).
4 Interstate Commerce Commission v. Brimson

(1894); Interstate Commerce Commission v.
Cincinnati, New Orleans & Texas Pacific Railway Co.
(1897); Interstate Commerce Commission v.
Alabama-Midland Railway Co. (1897).
The Court’s decision in Houston, E. & W. Texas

Railway Co. v. United States (1914), better known
as the Shreveport Rate Case, firmly established
congressional power over the nation’s rails. This
dispute arose from competition among three railroad
companies to serve various cities in Texas. Two were
based in Texas, one in Houston and the other in
Dallas, and the third competitor operated out of
Shreveport, Louisiana. The Texas Railroad
Commission regulated the Texas companies because
their operations were exclusively intrastate, but the
Shreveport company came under the jurisdiction of
the ICC. Difficulties arose when the Texas regulators
set rates substantially lower than did the ICC. The
motive behind these lower rates was clear: the Texas
commission wanted to encourage intrastate trade
and to discourage Texas companies from taking their
business to Shreveport. These intrastate rates
placed the Shreveport railroad at a distinct
disadvantage in competing for the Texas market. In
response, the ICC ordered the intrastate Texas rates
to be raised to the interstate levels. When the
commission’s authority to set intrastate rail rates
was challenged, the Supreme Court ruled in favor of
the ICC, articulating what became known as the
Shreveport doctrine. The Court held that the federal
government had the power to regulate intrastate
commerce when a failure to regulate would cripple,
retard, or destroy interstate commerce. According to
Justice Charles Evans Hughes’s opinion for the
Court,
The fact that [these] carriers are instruments of

intrastate commerce, as well as of interstate
commerce, does not derogate from the complete
and paramount authority of Congress over the
latter, or preclude the Federal power from being
exerted to prevent the intrastate operations of
such carriers from being made a means of injury
to that which has been confided to Federal care.
Wherever the interstate and intrastate
transactions of carriers are so related that the
government of the one involves the control of the
other, it is Congress, and not the state, that is
entitled to prescribe the final and dominant rule,
for otherwise Congress would be denied the
exercise of its constitutional authority, and the
state, and not the nation, would be supreme
within the national field.
It was clear to Hughes that the regulatory power of
the federal government extends to those aspects of
intrastate commerce that have such a close and
substantial relation to interstate traffic that control
is essential to protect the security and efficiency of
interstate commerce.
The Stream of Commerce Doctrine.

Government efforts to break up the meatpacking
trust presented a different constitutional challenge.
The corporations that dominated the meat industry,
such as Armour, Cudahy, and Swift, ruled the
nation’s stockyards, which stood at the throat of the
meat-distribution process. Western ranchers sent
their livestock to the stockyards to be sold,
butchered, and packed for shipment to consumers in
the East. Livestock brokers, known as commission
men, received the animals at the stockyards and sold
them to the meatpacking companies for the
ranchers. Consequently, when the meatpacking trust
acquired control of the stockyards and the
commission men who worked there, it was in a
position to direct where the ranchers sent their
stock, fix meat prices, demand unreasonable rates
for transporting stock, and decide when to withhold
meat from the market. The government believed
these actions constituted a restraint of trade in
violation of the Sherman Act. The meatpackers
argued that their control over the stockyards was an
intrastate matter to be regulated by the states.
The Court settled the dispute in Swift & Company
v. United States (1905), in which Justice Oliver
Wendell Holmes held for a unanimous Court that the
Sherman Act applied to the stockyards. The
commercial sale of beef, the justice reasoned, began
when the cattle left the range and did not terminate
until final sale. The fact that the cattle stopped at the
stockyards, midpoint in this commercial enterprise,
did not mean that they were removed from interstate
commerce. Holmes’s opinion develops what has
become known as the “stream of commerce
doctrine,” which allows federal regulation of
interstate commerce from the point of its origin to
the point of its termination. Interruptions in the
course of that interstate commerce do not suspend
the right of Congress to regulate. Stafford v. Wallace,
an appeal based on another federal assault on the
meatpacking combines, developed the doctrine more
fully.
Stafford v. Wallace 258 U.S. 495 (1922)
court/258/495.html
Vote: 7 (Brandeis, Clarke, Holmes, McKenna,

Pitney, Taft, Van Devanter)
1 (McReynolds)

NOT PARTICIPATING: Day
Facts:
Armed with the Swift & Company precedent,
Congress in 1921 passed the Packers and
Stockyard Act. This legislation attempted to go
beyond antitrust considerations in regulating the
meatpacking industry. In addition to making it
unlawful for the packers to fix prices or engage in
monopolistic practices, the law forbade
meatpackers in interstate commerce to engage in
any unfair, discriminatory, or deceptive practices.
It required all stockyard dealers and commission
men to register with the secretary of agriculture.
The transactions at the stockyards had to conform
to a schedule of charges open for public
inspection. Fees and charges could be changed
only after ten days’ notice to the secretary.
Congress delegated to the Agriculture Department
the authority to make rules and regulations to
carry out the act, set stockyard rates, and
prescribe record-keeping procedures for
stockyard officials.
Stafford and Company, a corporation engaged in

commercial transactions of cattle, sued Secretary
of Agriculture Henry Wallace, asking the courts to
enjoin his enforcement of the act. The lower court
refused to issue the requested injunction, and the
company appealed.
Arguments:
For the appellants, T. F. Stafford et al.:
The lower court’s decision rests on the
following syllogism: “the stockyards
themselves are instrumentalities of interstate
commerce,” and the dealers in livestock at the
yards are “engaged in or participating in that
commerce within the stockyards”; accordingly,
the dealers are engaged in interstate
commerce, which Congress can regulate. Both
the premise and conclusion are wrong. The
dealers are not engaged in “commerce within
the stockyards.” They buy and sell livestock for
others, which is something separate and
distinct from interstate commerce. It is not
affected by whether the shipment originates
within the state or out of state. The
transportation ceases when the livestock
reaches the stockyards, and it does not begin
again, if ever, until after the services of
appellants have been fully performed.
If the appellants are engaged in interstate
commerce solely because they perform a
service concerning livestock that may be
shipped in interstate commerce, so too are the
men who feed the cattle, and so on. If
Congress can regulate these activities—that is,
all the incidents connected with that commerce
—the entire sphere of mercantile activity would
exclude state control over contracts and
commerce that are purely domestic in their
nature.
For the appellees, Henry

Wallace, secretary of
agriculture, et al.:
Various Court decisions have established the
power of Congress to regulate all
instrumentalities by which interstate
commerce is carried on or conducted. The
appellant’s business, which offers terminal
facilities at one of the world’s largest livestock
markets, is embraced within those
instrumentalities of interstate commerce just
as if it were an integral part of a great railroad
system.
The question here is not whether the
appellants should be covered by the Packers
and Stockyard Act by judicial interpretation but
whether Congress had the power to designate
them and their transactions as part of the
“current of commerce” and therefore covered
by the act. The answer is yes because they
form as much a part of the “current of
commerce” as the railroads or the stockyards
company. See Swift.

the Court.
The object to be secured by the act is the free and

unburdened flow of live stock from the ranges and
farms of the West and the Southwest through the
great stockyards and slaughtering centers on the
borders of that region, and thence in the form of
meat products to the consuming cities of the
country in the Middle West and East, or, still as
live stock, to the feeding places and fattening
farms in the Middle West or East for further
preparation for the market.
The chief evil feared is the monopoly of the

packers, enabling them unduly and arbitrarily to
lower prices to the shipper who sells, and unduly
and arbitrarily to increase the price to the
consumer who buys. Congress thought that the
power to maintain this monopoly was aided by
control of the stockyards. Another evil which it
sought to provide against by the act, was
exorbitant charges, duplication of commissions,
deceptive practices in respect of prices, in the
passage of the live stock through the stockyards,
all made possible by collusion between the
stockyards management and the commission men,
on the one hand, and the packers and dealers on
the other. Expenses incurred in the passage
through the stockyards necessarily reduce the
price received by the shipper, and increase the
price to be paid by the consumer. If they be
exorbitant or unreasonable, they are an undue
burden on the commerce which the stockyards are
intended to facilitate. Any unjust or deceptive
practice or combination that unduly and directly
enhances them is an unjust obstruction to that
commerce. . . .
The stockyards are not a place of rest or final

destination. Thousands of head of live stock arrive
daily by carload and trainload lots, and must be
promptly sold and disposed of and moved out to
give place to the constantly flowing traffic that
presses behind. The stockyards are but a throat
through which the current flows, and the
transactions which occur therein are only incident
to this current from the West to the East, and from
one State to another. Such transactions cannot be
separated from the movement to which they
contribute and necessarily take on its character.
The commission men are essential in making the
sales without which the flow of the current would
be obstructed, and this, whether they are made to
packers or dealers. The dealers are essential to
the sales to the stock farmers and feeders. The
sales are not in this aspect merely local
transactions. They create a local change of title, it
is true, but they do not stop the flow; they merely
change the private interests in the subject of the
current, not interfering with, but, on the contrary,
being indispensable to its continuity. The origin of
the live stock is in the West, its ultimate
destination known to, and intended by, all engaged
in the business is in the Middle West and East
either as meat products or stock for feeding and
fattening. This is the definite and well-understood
course of business. The stockyards and the sales
are necessary factors in the middle of this current
of commerce.
The act, therefore, treats the various stockyards of

the country as great national public utilities to
promote the flow of commerce from the ranges
and farms of the West to the consumers in the
East. It assumes that they conduct a business
affected by a public use of a national character
and subject to national regulation. That it is a
business within the power of regulation by
legislative action needs no discussion. . . .Nor is
there any doubt that in the receipt of live stock by
rail and in their delivery by rail the stockyards are
an interstate commerce agency. The only question
here is whether the business done in the
stockyards between the receipt of the live stock in
the yards and the shipment of them therefrom is a
part of interstate commerce, or is so associated
with it as to bring it within the power of national
regulation. A similar question has been before this
court and had great consideration in Swift & Co. v.
United States. The judgment in that case gives a
clear and comprehensive exposition which leaves
to us in this case little but the obvious application
of the principles there declared. . . .
The application of the commerce clause of the

Constitution in the Swift Case was the result of
the natural development of interstate commerce
under modern conditions. It was the inevitable
recognition of the great central fact that such
streams of commerce from one part of the country
to another which are ever flowing are in their very
essence the commerce among the States and with
foreign nations which historically it was one of the
chief purposes of the Constitution to bring under
national protection and control. This court
declined to defeat this purpose in respect of such
a stream and take it out of complete national
regulation by a nice and technical inquiry into the
noninterstate character of some of its necessary
incidents and facilities when considered alone and
without reference to their association with the
movement of which they were an essential but
subordinate part.
The principles of the Swift Case have become a

fixed rule of this court in the construction and
application of the commerce clause. . . .
Of course, what we are considering here is not a
bill in equity or an indictment charging conspiracy
to obstruct interstate commerce, but a law. The
language of the law shows that what Congress had
in mind primarily was to prevent such
conspiracies by supervision of the agencies which
would be likely to be employed in it. If Congress
could provide for punishment or restraint of such
conspiracies after their formation through the
Anti-Trust Law as in the Swift Case, certainly it
may provide regulation to prevent their formation.
...
As already noted, the word “commerce” when

used in the act is defined to be interstate and
foreign commerce. Its provisions are carefully
drawn to apply only to those practices and
obstructions which in the judgment of Congress
are likely to affect interstate commerce
prejudicially. Thus construed and applied, we
think the act clearly within congressional power
and valid.
Other objections are made to the act and its

provisions as violative of other limitations of the
Constitution, but the only one seriously pressed
was that based on the Commerce Clause and we
do not deem it necessary to discuss the others.
The orders of the District Court refusing the

interlocutory injunctions are
Affirmed.
The stream of commerce precedents set in the Swift

and Stafford stockyards cases were applied later to
other regulatory schemes. Most notable was Chicago
Board of Trade v. Olsen (1923), which brought the
grain exchanges under the rubric of interstate
commerce. Such decisions broadened the power of
the federal government to control the economy.
But, we hasten to note, the Court continued to find

that certain commercial activities exerted too little
direct impact on interstate commerce to justify
congressional control. The most prominent among
these were manufacturing and processing. The 1895
sugar trust case of E. C. Knight established this
principle, and the Court reinforced it in numerous
decisions over the next three decades.
Regulating Commerce as a
Federal Police Power
Challenging laws as regulating intrastate, not
interstate, commerce was only one approach taken
to resist federal regulatory efforts during this period.
Business interests also attacked certain kinds of
laws as being beyond the congressional commerce
power on the ground that they regulated morality
and not commerce. They claimed that Congress was
inappropriately using the commerce clause as a
federal police power. The term police power refers to
the general authority of a government to regulate for
the health, safety, morals, and general welfare of its
citizens. The states possessed general police powers
prior to the adoption of the federal Constitution and
retained them when the national government was
created. Consequently, states may pass laws for the
general welfare without any specific grant of power
to do so. As long as the legislation does not run afoul
of specific constitutional limitations (such as the Bill
of Rights), the states are free to act.
The federal government, on the other hand, is a

government of delegated powers. It does not possess
any general police power. For an act of Congress to
be valid, it must rest on a specific grant of authority
—for example, an enumerated, implied, or inherent
power. Madison described the situation aptly in
Federalist No. 45: the “powers delegated by the
proposed Constitution to the federal government are
few and defined. Those which are to remain in the
State governments are numerous and indefinite.”
Consider prostitution, which was at issue in Hoke v.

United States (1913). Based on its police powers, a
state could pass legislation outlawing prostitution
without any justification necessary. The federal
government, however, could pass such a law only if
Congress could justify it as an exercise of a
delegated power. Consequently, we have the dispute
in Hoke over whether a law making it a criminal
violation to take “any woman or girl” across state
lines “for the purpose of prostitution or debauchery,
or for any other immoral purpose” was a valid
exercise of the power to regulate interstate
commerce.
So, while most of the battles over the meaning of
interstate commerce have been largely economic—
Gibbons and E. C. Knight provide examples—Hoke
illustrates that the regulation of commerce can be
structured in a way that affects matters of health,
safety, and morals. But are regulations of this sort
constitutional? Congress framed the law at issue in
Hoke, known as the Mann Act, as an exercise of its
commerce power. But the legislators may have been
motivated by moral, rather than commercial,
considerations. Is this an appropriate exercise of the
commerce power? May Congress legitimately use
the commerce clause as a means of exercising an
authority at the national level similar to the states’
police powers? A related consideration is that many
of these laws, including the Mann Act, prohibit
particular activities. Are “prohibition” regulations
within the meaning of the commerce clause?
Marshall’s opinion in Gibbons is suggestive. Recall

his words: “Th[e] [commerce] power, like all others
vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the
constitution.” In other words, if an activity falls
under the definition of commerce among the states,
then Congress has the right to regulate it as long as
the regulation does not violate a constitutional
limitation (such as the First Amendment). The
commerce clause itself imposes no limitations on the
motivations for such legislation.
Would subsequent Courts agree? Champion v. Ames
provides an initial response. The case demonstrates,
first, that the power to “regulate” commerce
includes the power to prohibit certain activities. It
also shows how Congress can use the commerce
power to depress certain activities it deems
unacceptable. This goal is much different from those
that are present when Congress regulates commerce
for economic reasons.
As you read Justice John Marshall Harlan [I]’s

opinion for the Court, notice the expansive terms he
uses to describe the commerce power. Does he
convince you that Congress can use the commerce
clause to include the power to prohibit what
Congress thought was an immoral trade? The four
dissenters did not think so. They argued that
Congress was not regulating commerce at all;
instead, it was trying to prohibit lotteries, a matter
for the police powers of the state to address.
Champion v. Ames 188 U.S. 321 (1903)
court/188/321.html
Vote: 5 (Brown, Harlan, Holmes, McKenna, White)
4 (Brewer, Fuller, Peckham, Shiras)
OPINION OF THE COURT: Harlan

DISSENTING OPINION: Fuller
Facts:
In 1895 Congress passed a statute prohibiting
lottery tickets from being imported from abroad,
transported across state lines or sent through the
mail. United States Marshal John Ames arrested
Charles Champion in Chicago on charges that he
had arranged for a shipment of lottery tickets,
supposedly printed in Paraguay, to be transported
from Texas to California by Wells Fargo. When
federal authorities attempted to transport
Champion to Texas to stand trial on the charges,
he filed for a writ of habeas corpus challenging his
arrest. He alleged that Congress acted
unconstitutionally when it passed the lottery ticket
law.
Arguments:
For the appellant, Charles Champion:
The power to regulate lotteries, and to permit

or prohibit the sale of lottery tickets, is
exclusively a police power reserved to the
states. The suppression of lotteries is not an
exercise of any power the Constitution
commits to Congress and so violates the Tenth
Amendment.
The law can be sustained only as an exercise of
the commerce power. But it is not a regulation
of commerce; it is a suppression of an alleged
evil. Sending lottery tickets is not a transaction
within the scope of the commerce power. And
it cannot be doubted that the intention and
purpose of Congress was to suppress lotteries.
Although the law may be necessary to
suppress lotteries, it has no relation to
interstate commerce and, therefore, is not
“necessary and proper for carrying into
execution” the power to regulate commerce
among the states.
For the appellee, John C. Ames,

U.S. marshal:
Lottery tickets are articles of commerce in the
sense that they are things that are the subjects
of barter and sale.
Whether an article is or is not an article of
commerce is dependent not on its noxiousness
or usefulness, nor on whether the states have
prohibited it within their borders in the exercise
of their police power, but on whether such
articles have been, in the ordinary and usual
channels of trade, the subjects of purchase and
sale. Any article that people buy or sell is an
article of commerce and comes under the
power of Congress when its exchange is
interstate.
The power to prohibit is absolute, and the
legislature is the final judge of the wisdom of
its exercise.
Mr. Justice Harlan Delivered the Opinion of

the Court.
What is the import of the word “commerce” as
used in the Constitution? It is not defined by that
instrument. Undoubtedly, the carrying from one
State to another by independent carriers of things
or commodities that are ordinary subjects of
traffic, and which have in themselves a recognized
value in money, constitutes interstate commerce.
But does not commerce among the several States
include something more? Does not the carrying
from one State to another, by independent
carriers, of lottery tickets that entitle the holder to
the payment of a certain amount of money therein
specified also constitute commerce among the
States? . . .
The leading case under the commerce clause of

the Constitution is Gibbons v. Ogden. Referring to
that clause, Chief Justice Marshall said: “ . . . This
than are prescribed in the Constitution. These are
expressed in plain terms, and do not affect the
questions which arise in this case or which have
been discussed at the bar. If, as has always been
understood, the sovereignty of Congress, though
limited to specified objects, is plenary as to those
objects, the power over commerce with foreign
nations, and among the several States, is vested in
Congress as absolutely as it would be in a single
government, having in its constitution the same
restrictions on the exercise of the power as are
found in the Constitution of the United States.” . .
.
. . . [P]rior adjudications . . . sufficiently indicate
the grounds upon which this court has proceeded
when determining the meaning and scope of the
commerce clause. They show that commerce
among the States embraces navigation,
intercourse, communication, traffic, the transit of
persons, and the transmission of messages by
telegraph. They also show that the power to
regulate commerce among the several States is
vested in Congress as absolutely as it would be in
a single government, having in its constitution the
same restrictions on the exercise of the power as
are found in the Constitution of the United States;
that such power is plenary, complete in itself, and
may be exerted by Congress to its utmost extent,
subject only to such limitations as the Constitution
imposes upon the exercise of the powers granted
by it; and that in determining the character of the
regulations to be adopted Congress has a large
discretion which is not to be controlled by the
courts, simply because, in their opinion, such
regulations may not be the best or most effective
that could be employed.
We come then to inquire whether there is any

solid foundation upon which to rest the contention
that Congress may not regulate the carrying of
lottery tickets from one State to another, at least
by corporations or companies whose business it is,
for hire, to carry tangible property from one State
to another. . . .
We are of opinion that lottery tickets are subjects

of traffic and therefore are subjects of commerce,
and the regulation of the carriage of such tickets
from State to State, at least by independent
carriers, is a regulation of commerce among the
several States. . . .
It is to be remarked that the Constitution does not

define what is to be deemed a legitimate
regulation of interstate commerce. In Gibbons v.
Ogden it was said that the power to regulate such
commerce is the power to prescribe the rule by
which it is to be governed. But this general
observation leaves it to be determined, when the
question comes before the court, whether
Congress in prescribing a particular rule has
exceeded its power under the Constitution. While
our Government must be acknowledged by all to
be one of enumerated powers, the Constitution
does not attempt to set forth all the means by
which such powers may be carried into execution.
It leaves to Congress a large discretion as to the
means that may be employed in executing a given
power. . . .
If a State, when considering legislation for the

suppression of lotteries within its own limits, may
properly take into view the evils that inhere in the
raising of money, in that mode, why may not
Congress, invested with the power to regulate
commerce among the several States, provide that
such commerce shall not be polluted by the
carrying of lottery tickets from one State to
another? In this connection it must not be
forgotten that the power of Congress to regulate
commerce among the States is plenary, is
complete in itself, and is subject to no limitations
except such as may be found in the Constitution.
What provision in that instrument can be regarded
as limiting the exercise of the power granted?
What clause can be cited which, in any degree,
countenances the suggestion that one may, of
right, carry or cause to be carried from one State
to another that which will harm the public morals?
We cannot think of any clause of that instrument
that could possibly be invoked by those who assert
their right to send lottery tickets from State to
State except the one providing that no person
shall be deprived of his liberty without the due
process of law. We have said that the liberty
protected by the Constitution embraces the right
to be free in the enjoyment of one’s faculties; “to
be free to use them in all lawful ways; to live and
work where he will; to earn his livelihood by any
lawful calling; to pursue any livelihood or
avocation, and for that purpose to enter into all
contracts that may be proper.” But surely it will
not be said to be a part of any one’s liberty, as
recognized by the supreme law of the land, that he
shall be allowed to introduce into commerce
among the States an element that will be
confessedly injurious to the public morals. . . .
Besides, Congress, by that act, does not assume to

interfere with traffic or commerce in lottery
tickets carried on exclusively within the limits of
any State, but has in view only commerce of that
kind among the several States. It has not assumed
to interfere with the completely internal affairs of
any State, and has only legislated in respect of a
matter which concerns the people of the United
States. As a State may, for the purpose of
guarding the morals of its own people, forbid all
sales of lottery tickets within its limits, so
Congress, for the purpose of guarding the people
of the United States against the “widespread
pestilence of lotteries” and to protect the
commerce which concerns all the States, may
prohibit the carrying of lottery tickets from one
State to another. . . .
The whole subject is too important, and the

questions suggested by its consideration are too
difficult of solution to justify any attempt to lay
down a rule for determining in advance the
validity of every statute that may be enacted
under the commerce clause. We decide nothing
more in the present case than that lottery tickets
are subjects of traffic among those who choose to
sell or buy them; that the carriage of such tickets
by independent carriers from one State to another
is therefore interstate commerce; that under its
power to regulate commerce among the several
States Congress—subject to the limitations
imposed by the Constitution upon the exercise of
the powers granted—has plenary authority over
such commerce, and may prohibit the carriage of
such tickets from State to State; and that
legislation to that end, and of that character, is not
inconsistent with any limitation or restriction
imposed upon the exercise of the powers granted
to Congress.
Young girls working in a clothing factory.

Congressional attempts to curb child labor by
taxing the items produced were repeatedly
rebuffed by the Supreme Court.
Library of Congress
The judgment is
Affirmed.
MR. CHIEF JUSTICE FULLER,

with whom concur MR. JUSTICE
BREWER, MR. JUSTICE
SHIRAS, and MR. JUSTICE
PECKHAM, dissenting.
The naked question is whether the prohibition by
Congress of the carriage of lottery tickets from
one State to another by means other than the
mails is within the powers vested in that body by
the Constitution of the United States. That the
purpose of Congress in this enactment was the
suppression of lotteries cannot reasonably be
denied. That purpose is avowed in the title of the
act, and is its natural and reasonable effect, and
by that its validity must be tested.
The power of the State to impose restraints and

burdens on persons and property in conservation
and promotion of the public health, good order
and prosperity is a power originally and always
belonging to the States, not surrendered by them
to the General Government nor directly restrained
by the Constitution of the United States, and
essentially exclusive, and the suppression of
lotteries as a harmful business falls within this
power, commonly called of police.
It is urged, however, that because Congress is

empowered to regulate commerce between the
several States, it, therefore, may suppress
lotteries by prohibiting the carriage of lottery
matter. Congress may indeed make all laws
necessary and proper for carrying the powers
granted to it into execution, and doubtless an act
prohibiting the carriage of lottery matter would be
necessary and proper to the execution of a power
to suppress lotteries; but that power belongs to
the States and not to Congress. To hold that
Congress has general police power would be to
hold that it may accomplish objects not entrusted
to the General Government, and to defeat the
operation of the Tenth Amendment, declaring that:
“The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the
people.”
Champion set the precedent that Congress may
indeed use the commerce clause in much the same
manner as states use their police powers. In the
years following Champion, the legislature passed a
number of laws designed to accomplish social, not
economic, goals through the exercise of the
commerce power. In 1906 Congress passed the Meat
Inspection Act and the Pure Food and Drug Act,
which prohibited contaminated foods from interstate
commerce. Five years later the Supreme Court
upheld the Food and Drug Act as a proper exercise
of the commerce power.5 In 1910, as a method of
curtailing interstate prostitution rings, Congress
passed the Mann Act, as we mentioned earlier. In
Hoke the Court unanimously ruled that the federal
government has the authority under the commerce
clause to prohibit taking women across state lines
for purposes of prostitution or other immoral
activities. In addition, Congress passed various laws
that federalized criminal activity that extends
beyond the boundaries of a single state. Kidnapping
that crosses state lines, interstate transportation of
stolen property, and even interstate flight to avoid
prosecution are all federal crimes because of
Congress’s power to regulate commerce among the
states.
5 Hipolite Egg Company v. United States (1911).
And yet, just when it seemed that the Court would

continue to allow Congress to develop federal police
powers via the commerce clause, it dealt Congress a
significant blow in the case of Hammer v. Dagenhart
(1918).
Hammer v. Dagenhart 247 U.S. 251 (1918)
court/247/251.html
Vote: 5 (Day, McReynolds, Pitney, Van Devanter,

White)
4 (Brandeis, Clarke, Holmes, McKenna)
OPINION OF THE COURT: Day

DISSENTING OPINION: Holmes
Facts:
In the 1880s America entered the industrial age,
which was characterized by the unfettered growth
of the private-sector economy. The Industrial
Revolution changed the United States for the
better in countless ways, but it also had a
downside. Lacking any significant government
controls, many businesses had less-than-
benevolent relations with their workers. Some
forced employees to work more than fourteen
hours a day at absurdly low wages and under
dreadful conditions. They also had no qualms
about employing children under the age of
sixteen.
Americans were divided over these practices. On

one side were the entrepreneurs, stockholders,
and others who gained from worker exploitation.
By employing children, paying low wages, and
providing no benefits, they minimized expenses
and maximized profits. On the other side were the
progressives, reformist groups, and individuals
who sought to persuade the states and the federal
government to enact laws to protect workers.
These two camps repeatedly clashed in their
struggle to attain diametrically opposed policy
ends.6
6 We derive what follows from Lee Epstein,

Conservatives in Court (Knoxville: University of
Tennessee Press, 1985); and Stephen B. Wood,
Constitutional Politics in the Progressive Era
(Chicago: University of Chicago Press, 1968).
One of the first battles came in 1915, when

Congress began consideration of a bill to prohibit
the shipment in interstate commerce of factory
products made by children under the age of
fourteen or by children ages fourteen to sixteen
who worked more than eight hours a day.
Numerous progressive groups supported the
legislation, but it faced substantial opposition from
employer associations such as the Executive
Committee of Southern Cotton Manufacturers.
This group was made up of militant mill owners
who organized in 1915 solely to defeat federal
child labor legislation. After months of legislative
battles, Congress finally passed the legislation,
known as the Keating-Owen Child Labor Act of
1916. The committee’s leader, David Clark, vowed
that his group would challenge the
constitutionality of the act in court. He retained
the services of a corporate law firm that held a
laissez-faire philosophy to argue the committee’s
case. He then sought the right test case to
challenge the law. Eventually, he decided on a suit
against the Fidelity Manufacturing Company.
The case he brought was perfect for the

committee’s needs. Roland Dagenhart and his two
minor sons were employed at Fidelity, a cotton
mill in North Carolina. Under state law, each of
Dagenhart’s sons was permitted to work up to
eleven hours a day. Under the new federal act,
however, the older boy could work only eight
hours, and the younger one could not work at all.
Not only were the facts relating to the Dagenharts
advantageous, but Clark also secured the
cooperation of the company, which had equal
disdain for the law, in planning the litigation. One
month before the effective date of the law, the
company posted the new federal regulations on its
door and “explained” to affected employees that
they would be unable to continue to work. A week
later, having already secured the consent of the
Dagenharts and the factory, the committee’s
attorneys filed an injunction against the company
and William C. Hammer, a federal prosecutor, to
prevent enforcement of the law.
Within a month, the district court heard

arguments and ruled the act unconstitutional. The
judge did not write an opinion, but when he
handed down his decision he fully agreed with the
committee’s arguments, suggesting that the
federal government had usurped state power.
Once the district court stayed enforcement of the

act, both the committee and the U.S. Justice
Department began to plan the strategies they
would use before the U.S. Supreme Court. The
committee argued that Congress had no authority
to impose its policies on the states. The
government’s defense was led by Solicitor General
John W. Davis. One of the great attorneys of the
day, he made a strong case for the law, although
he probably personally opposed it. Not only did he
argue that the regulation of child labor fell
squarely within Congress’s purview, but he also
supplied the Court with data indicating that the
states themselves had sought to eliminate the
exploitation of young children by employers. His
brief pointed out that only three states placed no
age limit on factory employees, and only ten
allowed those between the ages of fourteen and
sixteen to work. We detail additional arguments
below.
Arguments:
For the appellant, William C. Hammer,
U.S. attorney:
The commerce clause authorizes Congress to

“regulate commerce among the several
states.” Here, the statute is clearly a
regulation, and it applies only to the actual
transportation of products out of state, not to
the intrastate activity of manufacturing.
Supreme Court precedent has established that
transportation of goods is clearly within the
meaning of “commerce.” Therefore, the statute
is wholly within the bounds of congressional
commerce power.
Unfair competition concerns also justify the
act. States cannot limit child labor without
raising the costs of manufacturing within their
borders, which puts them at an economic
disadvantage. The federal government is the
only body that is able to enact a uniform law to
prevent business practices that lead to unfair
competition.
The question of states’ rights is irrelevant if the
statute is found to be a valid exercise of
congressional power under the commerce
clause.
For the appellee, Roland

Dagenhart:
In their writings, the framers made clear that
the purpose of the commerce clause was not to
grant a positive power to the federal
government. Rather, it was viewed as a
provision designed to prevent injustices
committed in commerce by the states.
Legislative history shows that the purpose of
the act is to prevent child labor, not to protect
or promote commerce. Congress is attempting
to regulate the pretransportation conditions of
labor, not the actual transportation of the
goods. That is beyond the scope of the
commerce clause, and Congress may not do
indirectly what it is prohibited to do directly.
Any consequences of child labor are local, so
they may be regulated only by the state. The
Tenth Amendment reserves the right to
exercise police power over intrastate matters
to the states.
Mr. Justice Day Delivered the Opinion of the
Court.
It is . . . contended that the authority of Congress

may be exerted to control interstate commerce in
the shipment of child-made goods because of the
effect of the circulation of such goods in other
states where the evil of this class of labor has
been recognized by local legislation, and the right
to thus employ child labor has been more
rigorously restrained than in the state of
production. In other words, that the unfair
competition thus engendered may be controlled by
closing the channels of interstate commerce to
manufacturers in those states where the local laws
do not meet what Congress deems to be the more
just standard of other states.
There is no power vested in Congress to require

the states to exercise their police power so as to
prevent possible unfair competition. Many causes
may co-operate to give one state, by reason of
local laws or conditions, an economic advantage
over others. The commerce clause was not
intended to give to Congress a general authority
to equalize such conditions. In some of the states
laws have been passed fixing minimum wages for
women; in others the local law regulates the hours
of labor of women in various employments.
Business done in such states may be at an
economic disadvantage when compared with
states which have no such regulations; surely, this
fact does not give Congress the power to deny
transportation in interstate commerce to those
who carry on business where the hours of labor
and the rate of compensation for women have not
been fixed by a standard in the use in other states
and approved by Congress.
The grant of power to Congress over the subject of

interstate commerce was to enable it to regulate
such commerce, and not to give it authority to
control the states in their exercise of the police
power over local trade and manufacture.
The grant of authority over a purely Federal

matter was not intended to destroy the local
power always existing and carefully reserved to
the states in the 10th Amendment to the
Constitution. . . .
That there should be limitations upon the right to

employ children in mines and factories in the
interest of their own and the public welfare, all
will admit. That such employment is generally
deemed to require regulation is shown by the fact
that the brief of counsel states that every state in
the Union has a law upon the subject, limiting the
right to thus employ children. In North Carolina,
the state wherein is located the factory in which
the employment was had in the present case, no
child under twelve years of age is permitted to
work.
. . . The maintenance of the authority of the states

over matters purely local is as essential to the
preservation of our institutions as is the
conservation of the supremacy of the Federal
power in all matters intrusted to the nation by the
Federal Constitution.
In interpreting the Constitution it must never be

forgotten that the nation is made up of states, to
which are intrusted the powers of local
government. And to them and to the people the
powers not expressly delegated to the national
government are reserved. The power of the states
to regulate their purely internal affairs by such
laws as seem wise to the local authority is
inherent, and has never been surrendered to the
general government. To sustain this statute would
not be, in our judgment, a recognition of the
lawful exertion of congressional authority over
interstate commerce, but would sanction an
invasion by the Federal power of the control of a
matter purely local in its character, and over
which no authority has been delegated to
Congress in conferring the power to regulate
commerce among the states.
We have neither authority nor disposition to

question the motives of Congress in enacting this
legislation. The purposes intended must be
attained consistently with constitutional
limitations, and not by an invasion of the powers
of the states. This court has no more important
function than that which devolves upon it the
obligation to preserve inviolate the constitutional
limitations upon the exercise of authority, Federal
and state, to the end that each may continue to
discharge, harmoniously with the other, the duties
intrusted to it by the Constitution.
In our view the necessary effect of this act is, by
means of a prohibition against the movement in
interstate commerce of ordinary commercial
commodities, to regulate the hours of labor of
children in factories and mines within the states—
a purely state authority. Thus the act in a twofold
sense is repugnant to the Constitution. It not only
transcends the authority delegated to Congress
over commerce, but also exerts a power as to a
purely local matter to which the Federal authority
does not extend. The far-reaching result of
upholding the act cannot be more plainly indicated
than by pointing out that if Congress can thus
regulate matters intrusted to local authority by
prohibition of the movement of commodities in
interstate commerce, all freedom of commerce
will be at an end, and the power of the states over
local matters may be eliminated, and thus our
system of government be practically destroyed.
For these reasons we hold that this law exceeds

the constitutional authority of Congress. It follows
that the decree of the District Court must be
affirmed.
MR. JUSTICE HOLMES,

dissenting.
The act does not meddle with anything belonging
to the states. They may regulate their internal
affairs and their domestic commerce as they like.
But when they seek to send their products across
the state line they are no longer within their
rights. If there were no Constitution and no
Congress their power to cross the line would
depend upon their neighbors. Under the
Constitution such commerce belongs not to the
states, but to Congress to regulate. It may carry
out its views of public policy whatever indirect
effect they may have upon the activities of the
states. Instead of being encountered by a
prohibitive tariff at her boundaries, the state
encounters the public policy of the United States
which it is for Congress to express. The public
policy of the United States is shaped with a view
to the benefit of the nation as a whole. . . .The
national welfare as understood by Congress may
require a different attitude within its sphere from
that of some self-seeking state. It seems to me
entirely constitutional for Congress to enforce its
understanding by all the means at its command.
If William Day’s opinion was a total victory for the

Executive Committee, it meant little to the
Dagenharts (see Box 7-1). More important is what it
meant for congressional power under the commerce
clause. First, it perpetuated that distinction drawn in
E. C. Knight between the manufacturing and the
production of goods, which the Court regarded as
intrastate commerce and therefore to be regulated
only by the states, and their shipment in interstate
commerce, which Congress could regulate. In
Hammer the Court saw the law as a regulation of the
manufacturing stage rather than a regulation of
interstate commerce. Seen in this way, some say the
decision was not so much a rejection of the power of
Congress to regulate social matters as it was a
reminder that the justices would treat these types of
laws in the way they did the Anti-Trust Law at issue
in E. C. Knight: Congress must show that it is not
regulating manufacturing or production. On the
other hand, Day seemed to reprimand Congress for
using the commerce power to invade state police
power. As he wrote, “The grant of power to Congress
over the subject of interstate commerce was to
enable it to regulate such commerce, and not to give
it authority to control the states in their exercise of
the police power over local trade and manufacture.”
This is related to another striking aspect of Hammer:
the Court’s use of the Tenth Amendment as,
seemingly, an independent brake on the commerce
power.
Box 7-1 Aftermath . . . Reuben Dagenhart
FIVE YEARS after the Supreme Court’s decision in

Hammer v. Dagenhart striking down the child
labor law, a journalist interviewed Reuben
Dagenhart, whose father had sued to prevent
Congress from interfering with his sons’ jobs in a
North Carolina cotton mill. Reuben was twenty
when he was interviewed. Excerpts follow:
“What benefit . . . did you get out of the suit which

you won in the United States Supreme Court?”
“I don’t see that I got any benefit. I guess I’d be a

lot better off if they hadn’t won it.
“Look at me! A hundred and five pounds, a grown

man, and no education. I may be mistaken, but I
think the years I’ve put in the cotton mills have
stunted my growth. They kept me from getting any
schooling. I had to stop school after the third
grade and now I need the education I didn’t get.”
“Just what did you and John get out of that suit
then?” he was asked.
“Why, we got some automobile rides when them

big lawyers from the North was down here. Oh
yes, and they bought both of us a Coca-Cola!
That’s all we got out of it.”
“What did you tell the judge when you were in

court?”
“Oh, John and me was never in court. Just Paw

was there. John and me was just little kids in short
pants. I guess we wouldn’t have looked like much
in court. . . .We were working in the mill while the
case was going on.”
Reuben hasn’t been to school in years, but his

mind has not been idle.
“It would have been a good thing for all the kids in
this state if that law they passed had been kept. Of
course, they do better now than they used to. You
don’t see so many babies working in the factories,
but you see a lot of them that ought to be going to
school.”
Source: Labor, November 17, 1923, 3, quoted in

Leonard F. James, ed., The Supreme Court in
American Life, 2nd ed. (Glenview, IL: Scott,
Foresman, 1971), 74.
The Supreme Court and the
New Deal
The Supreme Court’s related moves of narrowing the
definition of commerce and invoking the Tenth
Amendment in E. C. Knight and Hammer probably
reflected less a commitment to states’ rights than a
willingness on the part of the Court to embrace a
free enterprise philosophy. If so, this matched the
general mood of the public, as at least some
Americans were benefiting so much from the
economic boom of the 1920s that they opposed
regulation. Calvin Coolidge famously put it this way:
“After all, the chief business of the American people
is business.”
This changed almost overnight when the New York

Stock Exchange crashed on October 29, 1929. The
crash set in motion a series of events that shook the
American economy and drove the nation into a deep
depression. For the next two years, the stock market
continued to tumble, with the Standard & Poor’s
Industrial Average falling 75 percent. The gross
national product declined 27 percent over three
years, and the unemployment rate rose from a
healthy 3.2 percent in 1929 to a catastrophic 24.9
percent in 1933.
The Republican Party, which had been victorious in

the November 1928 elections, controlled the White
House and both houses of Congress. The party
attempted to cope with the Great Depression by
adhering to the laissez-faire philosophy of
government that it had followed prior to the stock
market crash, but that approach was no longer
working; the economic forces against which the
Republicans were fighting were enormous. A
different political approach was necessary to battle
the collapse, and the American people were
demanding such a change. They got it, as we detail
in this section, with the election of a Democratic
president and Congress in the 1932 elections.
Although some of the Court’s decisions, such as

Swift and Stafford, seemed to give the government
more power to regulate the economy, others, such as
E. C. Knight and Hammer, were obstacles, limiting
Congress’s ability to cope effectively with a full-scale
economic collapse. And at least initially the justices
of the Supreme Court were unwilling to remove
them. This situation touched off one of history’s most
dramatic confrontations between the Court and the
president, and it permanently altered the allocation
of government powers.
The Depression and Political

Change
In the 1932 presidential election, voters rejected
incumbent Herbert Hoover and swept Democratic
candidate Franklin Roosevelt into office by a huge
margin. With new Democratic majorities in the
House and the Senate, the president began
combating the Depression with policies he called the
New Deal. The overwhelming Democratic margins in
Congress gave Roosevelt all the political clout he
needed to gain approval of his radical new approach
to boosting the economy. His programs were so
popular with the American people that in 1936 they
reelected Roosevelt by an even greater margin and
provided him with even larger Democratic majorities
in Congress, reducing the Republicans almost to
minor-party status. Clearly, the severe economic
events following the 1929 crash triggered
substantial political change, with the legislative and
executive branches experiencing wholesale partisan
shifts (see Figure 7-1).
The U.S. Supreme Court, however, did not change. In

1929, just before the stock market crash, the Court
membership was six Republicans and three
Democrats. The economic conservatives (Pierce
Butler, James McReynolds, Edward T. Sanford,
George Sutherland, William Howard Taft, and Willis
Van Devanter) were in control, outnumbering the
justices more sympathetic to political and economic
change (Louis D. Brandeis, Holmes, and Harlan
Fiske Stone). By 1932 the Court had three new
justices. Former justice Charles Hughes, who had
resigned his seat in 1916 to seek the presidency,
succeeded Taft as chief justice; Benjamin Cardozo
took Holmes’s seat; and Owen J. Roberts replaced
Sanford. Although these changes reduced the
Republican majority to five, it created no appreciable
change in the ideological balance of the Court.
Hoover filled all three of these vacancies, which
occurred before Roosevelt took office. Inaugurated
in March 1933, Roosevelt had no opportunity to
name a Supreme Court justice until Van Devanter
retired in June 1937. Roosevelt’s first appointment,
Hugo Black, assumed his seat in August of that year.
Not until 1940 did the Court have a majority
appointed from the period after Roosevelt’s first
election.
In the executive branch, however, Roosevelt was

able to assemble a cadre of young, creative people to
devise novel ways of approaching the ailing
economy, and these New Deal Democrats quickly set
out to develop, enact, and implement their
programs. Congress passed the first legislation, the
Emergency Banking Act of 1933, just five days after
Roosevelt’s inauguration, and a string of statutes
designed to control all major sectors of the nation’s
economy followed (see Box 7-2). In adopting these
programs, Congress relied on a number of
constitutional powers, including the powers to tax,
spend, and regulate interstate and foreign
commerce.
The new political majority that dominated the

legislative and executive branches called for the
government to take an active role in economic
regulation. The Supreme Court remained firmly in
the control of representatives of the old order, with
views on the relationship of government and the
economy at odds with those of the political branches.
A clash between the president and the Court was
inevitable.
Figure 7-1 The Great Depression and Political

Change
Note: These data depict the change in political

representation in the three branches of the
federal government following the 1929 stock
market crash and the deepening depression that
continued over the next several years. Members
of the House and one-third of the senators were
elected the previous November. The data on
presidential election margins are based on the
previous November’s elections. Supreme Court
information is as of January of the designated
years.
The Court Attacks the New Deal

As soon as the New Deal programs came into being,
conservative business interests began to challenge
their constitutional validity. In just two years the
appeals started to reach the Court’s doorstep.
Beginning in 1935 and lasting for two long, tense
years, the Court and the New Deal Democrats fought
over the constitutionality of an expanded federal role
in managing the economy.
During this period, the justices struck down a

number of important New Deal statutes. Of ten
major programs, the Supreme Court approved only
two—the Tennessee Valley Authority and the
emergency monetary laws. Four hard-line
conservative justices—Butler, McReynolds,
Sutherland, and Willis Van Devanter—formed the
heart of the Court’s opposition. Many observers
thought their obstruction of New Deal initiatives
would bring about the nation’s ruin. As a
consequence, they became known as the Four
Horsemen of the Apocalypse, a biblical reference to
the end of the world in the Book of Revelation. Two
of the four, Butler and McReynolds, were Democrats
(see Box 7-3).
Box 7-2 New Deal Legislation
THE Roosevelt Democrats moved on the nation’s

economic problems with great speed after the
president took the oath of office on March 4, 1933.
Listed below are the major economic actions
passed during Roosevelt’s first term. Note how
many were enacted within the first one hundred
days of the new administration.
March 9, 1933 Emergency Banking Act

March 31, 1933 Civilian Conservation Corps
created
May 12, 1933 Agricultural Adjustment Act
May 12, 1933 Federal Emergency Relief Act
May 18, 1933 Tennessee Valley Authority
created
June 5, 1933 Nation taken off gold standard
June 13, 1933 Home Owners Loan
Corporation created
June 16, 1933 Federal Deposit Insurance
Corporation created
June 16, 1933 Farm Credit Administration
created
June 16, 1933 National Industrial Recovery
Act
January 30, 1934 Dollar devalued
June 6, 1934 Securities and Exchange
Commission authorized
June 12, 1934 Reciprocal Tariff Act
June 19, 1934 Federal Communications
Commission created
June 27, 1934 Railroad Retirement Act
June 28, 1934 Federal Housing Administration
authorized
April 8, 1935 Works Progress Administration
created
July 5, 1935 National Labor Relations Act
August 14, 1935 Social Security Act
August 26, 1935 Federal Power Commission
created
August 30, 1935 National Bituminous Coal
Conservation Act
February 19, 1936 Soil Conservation and
Domestic Allotment Act
Box 7-3 The Four Horsemen
Willis Van Devanter (1910–

1937)
Republican from Wyoming. Born 1859. University
of Cincinnati Law School. Wyoming state
legislator and state supreme court judge. Federal
appeals court judge. Appointed by William Howard
Taft.
Library of Congress
James Clark McReynolds (1914–
1941)
Democrat from Tennessee. Born 1862. University
of Virginia Law School. United States attorney
general. Appointed by Woodrow Wilson.
Library of Congress
George Sutherland (1922–1938)

Republican from Utah. Born 1862. University of
Michigan Law School. State legislator, U.S.
representative, U.S. senator. Appointed by Warren
G. Harding.
Library of Congress
Pierce Butler (1922–1939)
Democrat from Minnesota. Born 1866. No law
school, studied privately. Corporate attorney.
Appointed by Warren G. Harding.
Library of Congress
Box 7-4 The Supreme Court and the New Deal
Listed below are eight major decisions handed

down by the Supreme Court in 1935 and 1936
declaring parts of the New Deal legislative
program unconstitutional.
Naturally, these four justices by themselves could
not declare void any act of Congress. They needed
the vote of at least one other justice. As Box 7-4
indicates, they had little trouble attracting others to
their cause. Of the eight major 1935–1936 decisions
in which they struck down congressional policies,
three were by 5–4 votes in which Justice Roberts
joined the four conservatives. In one additional case,
both Roberts and Chief Justice Hughes voted with
them. But in three of these significant decisions, the
Court was unanimous, with even the liberals,
Brandeis, Cardozo, and Stone, voting to strike down
the challenged legislation.
The first salvo in the war between the two branches

occurred on January 7, 1935, when the Court
announced its decision in Panama Refining
Company v. Ryan. By an 8–1 vote the justices
struck down a section of the National Industrial
Recovery Act of 1933 (NIRA) as an improper
delegation of congressional power to the executive
branch. The section in question was a major New
Deal weapon for regulating the oil industry. It gave
the president the power to prohibit the interstate
shipment of oil and petroleum products that were
produced or stored in a manner illegal under state
law. The justices found fault with the act because it
did not provide sufficiently clear standards to guide
the executive branch; rather, it gave the president
almost unlimited discretion in applying the
prohibitions. Panama Refining was the first case in
which the Court struck down legislation because it
was an improper delegation of power. (See Chapter
5 for more on the delegation of powers.)
Although the decision in Panama Refining was

restricted to the delegation question and did not
focus on Congress’s interstate commerce authority,
it promised bad days ahead for the administration.
Not only was the decision a disappointment for the
president, but also the vote was lopsided. Justice
Cardozo alone voted to approve the law.
The Court dropped its biggest bomb on the New

Deal four months later. The justices voted 5–4 on
May 6 to declare the Railroad Retirement Act of
1934 an unconstitutional violation of the commerce
clause and the due process clause of the Fifth
Amendment.7 Then, on May 27—a date that became
known as Black Monday—the justices announced
three significant blows to the administration’s efforts
to fight the Depression, all by unanimous votes.
First, in Humphrey’s Executor v. United States
(excerpted in Chapter 4), the Court declared that the
president did not have the power to remove a
member of the Federal Trade Commission (FTC).
Second, the justices invalidated the 1934 Frazier-
Lemke Act, which had provided mortgage relief,
especially to farmers.8 Finally, in A. L. A. Schechter
Poultry Corp. v. United States the Court handed the
president his most stinging defeat by declaring
major portions of the NIRA unconstitutional as an
improper delegation of legislative power and a
violation of the commerce clause.
7 Railroad Retirement Board v. Alton Railroad Co.

(1935).
8 Louisville Bank v. Radford (1935).

A. L. A. Schechter Poultry Corp. v. United States
295 U.S. 495 (1935)
court/295/495.html
Vote: 9 (Brandeis, Butler, Cardozo, Hughes,

McReynolds, Roberts, Stone, Sutherland, Van
Devanter)
OPINION OF THE COURT: Hughes

CONCURRING OPINION: Cardozo
Facts:
Congress passed the National Industrial Recovery
Act (NIRA), the most far-reaching and
comprehensive of all the New Deal legislation, on
June 16, 1933. Applying to every sector of
American industry, the NIRA called for the
creation of codes of fair competition for business.
The codes would regulate trade practices, wages,
hours, and other business activities within various
industries. Trade associations and other industry
groups had the responsibility for drafting the
codes, which were submitted to the president for
approval. In the absence of the private sector’s
recommendations, the president was authorized to
draft codes himself. Once approved by the
president, the codes had the force of law, and
violators faced fines and even jail.
The NIRA was vulnerable to constitutional
challenge on two grounds. First, it set almost no
standards for the president to use in approving or
drafting the codes. Congress had handed
Roosevelt a blank check to bring all of American
industry into line with his views of what was best
for economic recovery. Second, the law regulated
what at that time was considered intrastate
commerce.
The Schechter case involved a challenge to the

NIRA poultry codes, focusing on the industry in
New York, the nation’s largest chicken market.9
This market clearly was operating in interstate
commerce, as 96 percent of the poultry sold in
New York came from out-of-state suppliers. The
industry was riddled with graft and plagued by
deplorable health and sanitation conditions. The
Live Poultry Code approved by President
Roosevelt set a maximum workweek of forty hours
and a minimum hourly wage of fifty cents. In
addition, the code established a health inspection
system, regulations to govern slaughtering
procedures, and compulsory record keeping.
9 For a good discussion of the Schechter case, see

Irons, The New Deal Lawyers, chap. 5.
A. L. A. Schechter Poultry Corporation, owned by

Joseph, Martin, Aaron, and Alex Schechter, was a
poultry slaughtering business in Brooklyn.
Slaughterhouse operators such as the Schechters
purchased large numbers of live chickens from
local poultry dealers who imported the fowl from
out of state to be killed and dressed for sale.
Government officials found the Schechters in
violation of the Poultry Code on numerous counts:
They ignored the code’s wage and hour provisions,
failed to comply with government record-keeping
requirements, and did not conform to the
slaughter regulations. Their worst offense,
however, was selling unsanitary poultry that the
government found unfit for human consumption.
For this reason, Schechter Poultry became known
as the “sick chicken case.”
The government obtained indictments against the

Schechter Poultry Corporation and the four
brothers on sixty counts of violating the code, and
the jury found them guilty of nineteen. Each of the
brothers was sentenced to a short jail term. They
appealed unsuccessfully to the court of appeals
and then pressed their case to the U.S. Supreme
Court, asserting that the NIRA was
unconstitutional on improper delegation and
commerce clause grounds.
Arguments:
For the petitioners, A. L. A. Schechter
Poultry Corp. et al.:
The act attempts to override and ignore not

only the limitations of the commerce clause
but also the prohibition against illegal
delegation of legislative power. It is a bold and
unparalleled law that is drastic in character.
The act is an illegal delegation of power
because Congress has set up no intelligible
policies to govern the president and no
standards to guide and restrict his action.
The act exceeds the commerce power
because, according to existing precedent,
production—whether by way of manufacture,
mining, farming, or any other activity—is not
commerce and is not subject to regulation
under the commerce clause. To hold otherwise,
as decisions of the Court make clear, would
destroy our dual system of government and
allow the federal government to nationalize
industry.

States:
Under the Court’s decisions, the act’s
provisions are within the commerce power of
the Congress. Petitioners’ slaughtering
business is so closely related to interstate
movement that it makes no difference what
parts of their business are “in” interstate
commerce and what parts are less “in” but still
necessary to its functioning.
The effect of petitioners’ practices on the
national price and on the interstate movement
of poultry is the same as the effect of the local
activities at issue in Stafford v. Wallace. The
New York market dominates the live poultry
industry and determines the prices in other
markets, as well as the prices received by
shippers and farmers.
Petitioners’ practices also affect the quality and
volume of poultry shipped in interstate
commerce, another reason for federal
regulation. Because consumers are unable to
distinguish good poultry from unfit poultry,
they distrust the market and buy less poultry. It
is estimated that if unfit poultry were excluded
from the market by effectively prohibiting its
sale in New York, the consumption and
shipment of poultry would increase by about
20 percent.
Even if the practices here in normal economic
times would have only an indirect effect upon
interstate commerce, economic conditions are
such that they now substantially burden
interstate commerce because we are in a
period of overproduction, cutthroat
competition, unemployment, and reduced
buying power. Only Congress can deal with the
causes contributing to these problems. It would
be impossible for the states to take quick and
uniform action.
The four Schechter brothers celebrate with their

attorney, Joseph Heller, following the Supreme
Court’s ruling in Schechter Poultry Corp. v. United
States (1935), a decision that struck down key
provisions of the National Industrial Recovery Act.
(Left to right: Martin Schechter, Aaron Schechter,
attorney Heller, Joseph Schechter, and Alex
Schechter.)
Bettmann/Contributor
Mr. Chief Justice Hughes Delivered the

The question of the delegation of legislative

power. We recently had occasion to review the
pertinent decisions and the general principles
which govern the determination of this question.
The Constitution provides that “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.” Art. I,
§1. And the Congress is authorized “To make all
laws which shall be necessary and proper for
carrying into execution” its general powers. Art. I,
§8, par. 18. The Congress is not permitted to
abdicate or to transfer to others the essential
legislative functions with which it is thus vested. .
..
Section 3 of the Recovery Act is without

precedent. It supplies no standards for any trade,
industry or activity. It does not undertake to
prescribe rules of conduct to be applied to
particular states of fact determined by appropriate
administrative procedure. Instead of prescribing
rules of conduct, it authorizes the making of codes
to prescribe them. For that legislative
undertaking, §3 sets up no standards, aside from
the statement of the general aims of
rehabilitation, correction and expansion described
in section one. In view of the scope of that broad
declaration, and of the nature of the few
restrictions that are imposed, the discretion of the
President in approving or prescribing codes, and
thus enacting laws for the government of trade
and industry throughout the country, is virtually
unfettered. We think that the code-making
authority thus conferred is an unconstitutional
delegation of legislative power.
. . . The question of the application of the

provisions of the Live Poultry Code to intrastate
transactions. . . . This aspect of the case presents
the question whether the particular provisions of
the Live Poultry Code, which the defendants were
convicted for violating and for having conspired to
violate, were within the regulating power of
Congress.
These provisions relate to the hours and wages of
those employed by defendants in their
slaughterhouses in Brooklyn and to the sales there
made to retail dealers and butchers.
(1) Were these transactions “in” interstate

commerce? Much is made of the fact that almost
all the poultry coming to New York is sent there
from other States. But the code provisions, as here
applied, do not concern the transportation of the
poultry from other States to New York, or the
transactions of the commission men or others to
whom it is consigned, or the sales made by such
consignees to defendants. When defendants had
made their purchases, whether at the West
Washington Market in New York City or at the
railroad terminals serving the City, or elsewhere,
the poultry was trucked to their slaughterhouses
in Brooklyn for local disposition. The interstate
transactions in relation to that poultry then ended.
Defendants held the poultry at their
slaughterhouse markets for slaughter and local
sale to retail dealers and butchers who in turn
sold directly to consumers. Neither the
slaughtering nor the sales by defendants were
transactions in interstate commerce.
The undisputed facts thus afford no warrant for

the argument that the poultry handled by
defendants at their slaughterhouse markets was in
a “current” or “flow” of interstate commerce and
was thus subject to congressional regulation. The
mere fact that there may be a constant flow of
commodities into a State does not mean that the
flow continues after the property has arrived and
has become commingled with the mass of property
within the State and is there held solely for local
disposition and use. So far as the poultry here in
question is concerned; the flow in interstate
commerce had ceased. The poultry had come to a
permanent rest within the State. It was not held,
used, or sold by defendants in relation to any
further transactions in interstate commerce and
was not destined for transportation to other
States. Hence, decisions which deal with a stream
of interstate commerce—where goods come to
rest within a State temporarily and are later to go
forward in interstate commerce—and with the
regulations of transactions involved in that
practical continuity of movement, are not
applicable here.
(2) Did the defendants’ transactions directly

“affect” interstate commerce so as to be subject to
federal regulation? The power of Congress
extends not only to the regulation of transactions
which are part of interstate commerce, but to the
protection of that commerce from injury. It
matters not that the injury may be due to the
conduct of those engaged in intrastate operations.
Thus, Congress may protect the safety of those
employed in interstate transportation “no matter
what may be the source of the dangers which
threaten it.” We said in Second Employers’
Liability Cases, that it is the “effect upon
interstate commerce,” not “the source of the
injury,” which is “the criterion of congressional
power.” We have held that, in dealing with
common carriers engaged in both interstate and
intrastate commerce, the dominant authority of
Congress necessarily embraces the right to
control their intrastate operations in all matters
having such a close and substantial relation to
interstate traffic that the control is essential or
appropriate to secure the freedom of that traffic
from interference or unjust discrimination and to
promote the efficiency of the interstate service.
And combinations and conspiracies to restrain
interstate commerce, or to monopolize any part of
it, are none the less within the reach of the Anti-
Trust Act because the conspirators seek to attain
their end by means of intrastate activities. . . .
In determining how far the federal government

may go in controlling intrastate transactions upon
the ground that they “affect” interstate commerce,
there is a necessary and well-established
distinction between direct and indirect effects.
The precise line can be drawn only as individual
cases arise, but the distinction is clear in
principle. Direct effects are illustrated by the
railroad cases we have cited, as, e.g., the effect of
failure to use prescribed safety appliances on
railroads which are the highways of both
interstate and intrastate commerce, injury to an
employee engaged in interstate transportation by
the negligence of an employee engaged in an
intrastate movement, the fixing of rates for
intrastate transportation which unjustly
discriminate against interstate commerce. But
where the effect of intrastate transactions upon
interstate commerce is merely indirect, such
transactions remain within the domain of state
power. If the commerce clause were construed to
reach all enterprises and transactions which could
be said to have an indirect effect upon interstate
commerce, the federal authority would embrace
practically all the activities of the people and the
authority of the State over its domestic concerns
would exist only by sufferance of the federal
government. Indeed, on such a theory, even the
development of the State’s commercial facilities
would be subject to federal control. As we said in
the Minnesota Rate Cases: “In the intimacy of
commercial relations, much that is done in the
superintendence of local matters may have an
indirect bearing upon interstate commerce. The
development of local resources and the extension
of local facilities may have a very important effect
upon communities less favored and to an
appreciable degree alter the course of trade. The
freedom of local trade may stimulate interstate
commerce, while restrictive measures within the
police power of the State enacted exclusively with
respect to internal business, as distinguished from
interstate traffic, may in their reflex or indirect
influence diminish the latter and reduce the
volume of articles transported into or out of the
State.”
The distinction between direct and indirect effects

has been clearly recognized in the application of
the Anti-Trust Act. Where a combination or
conspiracy is formed, with the intent to restrain
interstate commerce or to monopolize any part of
it, the violation of the statute is clear. But where
that intent is absent, and the objectives are
limited to intrastate activities, the fact that there
may be an indirect effect upon interstate
commerce does not subject the parties to the
federal statute, notwithstanding its broad
provisions. . . .
. . . [T]he distinction between direct and indirect
effects of intrastate transactions upon interstate
commerce must be recognized as a fundamental
one, essential to the maintenance of our
constitutional system. Otherwise, as we have said,
there would be virtually no limit to the federal
power and for all practical purposes we should
have a completely centralized government. We
must consider the provisions here in question in
the light of this distinction.
The question of chief importance relates to the

provisions of the Code as to the hours and wages
of those employed in defendants’ slaughterhouse
markets. It is plain that these requirements are
imposed in order to govern the details of
defendants’ management of their local business.
The persons employed in slaughtering and selling
in local trade are not employed in interstate
commerce. Their hours and wages have no direct
relation to interstate commerce. The question of
how many hours these employees should work and
what they should be paid differs in no essential
respect from similar questions in other local
businesses which handle commodities brought
into a State and there dealt in as a part of its
internal commerce. This appears from an
examination of the considerations urged by the
Government with respect to conditions in the
poultry trade. Thus, the Government argues that
hours and wages affect prices; that
slaughterhouse men sell at a small margin above
operating costs; that a slaughterhouse operator
paying lower wages or reducing his cost by
exacting long hours of work, translates his saving
into lower prices; that this results in demands for
a cheaper grade of goods; and that the cutting of
prices brings about a demoralization of the price
structure. Similar conditions may be adduced in
relation to other businesses. The argument of the
Government proves too much. If the federal
government may determine the wages and hours
of employees in the internal commerce of a State,
because of their relation to cost and prices and
their indirect effect upon interstate commerce, it
would seem that a similar control might be
exerted over other elements of cost, also affecting
prices, such as the number of employees, rents,
advertising, methods of doing business, etc. All
the processes of production and distribution that
enter into cost could likewise be controlled. If the
cost of doing an intrastate business is in itself the
permitted object of federal control, the extent of
the regulation of cost would be a question of
discretion and not of power.
The Government also makes the point that efforts

to enact state legislation establishing high labor
standards have been impeded by the belief that
unless similar action is taken generally, commerce
will be diverted from the States adopting such
standards, and that this fear of diversion has led
to demands for federal legislation on the subject
of wages and hours. The apparent implication is
that the federal authority under the commerce
clause should be deemed to extend to the
establishment of rules to govern wages and hours
in intrastate trade and industry generally
throughout the country, thus overriding the
authority of the States to deal with domestic
problems arising from labor conditions in their
internal commerce.
It is not the province of the Court to consider the
economic advantages or disadvantages of such a
centralized system. It is sufficient to say that the
Federal Constitution does not provide for it. Our
growth and development have called for wide use
of the commerce power of the federal government
in its control over the expanded activities of
interstate commerce, and in protecting that
commerce from burdens, interferences, and
conspiracies to restrain and monopolize it. But the
authority of the federal government may not be
pushed to such an extreme as to destroy the
distinction, which the commerce clause itself
establishes, between commerce “among the
several States” and the internal concerns of a
State. The same answer must be made to the
contention that is based upon the serious
economic situation which led to the passage of the
Recovery Act—the fall in prices, the decline in
wages and employment, and the curtailment of the
market for commodities. Stress is laid upon the
great importance of maintaining wage
distributions which would provide the necessary
stimulus in starting “the cumulative forces making
for expanding commercial activity.” Without in any
way disparaging this motive, it is enough to say
that the recuperative efforts of the federal
government must be made in a manner consistent
with the authority granted by the Constitution.
We are of the opinion that the attempt through the

provisions of the Code to fix the hours and wages
of employees of defendants in their intrastate
business was not a valid exercise of federal power.
The other violations for which defendants were
convicted related to the making of local sales. Ten
counts, for violation of the provision as to
“straight killing,” were for permitting customers
to make “selections of individual chickens taken
from particular coops and half coops.” Whether or
not this practice is good or bad for the local trade,
its effect, if any, upon interstate commerce was
only indirect. The same may be said of violations
of the Code by intrastate transactions consisting
of the sale “of an unfit chicken” and of sales which
were not in accord with the ordinances of the City
of New York. The requirement of reports as to
prices and volumes of defendants’ sales was
incident to the effort to control their intrastate
business. . . .
On both the grounds we have discussed, the

attempted delegation of legislative power, and the
attempted regulation of intrastate transactions
which affect interstate commerce only indirectly,
we hold the code provisions here in question to be
invalid and that the judgment of conviction must
be reversed.
MR. JUSTICE CARDOZO,

concurring.
The delegated power of legislation which has
found expression in this code is not canalized
within banks that keep it from overflowing. It is
unconfined and vagrant. . . .
This is delegation running riot. . . .

The code does not confine itself to the suppression
of methods of competition that would be classified
as unfair according to accepted business
standards or accepted norms of ethics. It sets up a
comprehensive body of rules to promote the
welfare of the industry, if not the welfare of the
nation, without reference to standards, ethical or
commercial, that could be known or predicted in
advance of its adoption. . . .Even if the statute
itself had fixed the meaning of fair competition by
way of contrast with practices that are oppressive
or unfair, the code outruns the bounds of the
authority conferred. What is excessive is not
sporadic or superficial. It is deep-seated and
pervasive. The licit and illicit sections are so
combined and welded as to be incapable of
severance without destructive mutilation.
But there is another objection, far-reaching and

incurable, aside from any defect of unlawful
delegation.
If this code had been adopted by Congress itself,

and not by the President on the advice of an
industrial association, it would even then be void,
unless authority to adopt it is included in the grant
of power “to regulate commerce with foreign
nations, and among the several States.” United
States Constitution, art. 1, 8, cl. 3.
I find no authority in that grant for the regulation

of wages and hours of labor in the intrastate
transactions that make up the defendants’
business. As to this feature of the case, little can
be added to the opinion of the court. There is a
view of causation that would obliterate the
distinction between what is national and what is
local in the activities of commerce. . . .
I am authorized to state that MR. JUSTICE STONE

joins in this opinion.
The decision in Schechter closely paralleled the E. C.

Knight ruling and rejected the application of the
stream of commerce doctrine. In E. C. Knight the
Court held that sugar refining was a manufacturing
stage not part of interstate commerce and,
therefore, the federal government could not regulate
it. Similarly, in Schechter the Court classified the
slaughtering and local sale of chickens as intrastate
commerce. The stream of commerce evident in the
stockyards decisions did not apply. In Schechter the
interstate movement of the poultry had ceased. Once
the distributor had sold to local processors like the
Schechters’ company, the chickens had reached their
state of final destination and became a part of
intrastate commerce. Also consistent with E. C.
Knight, the justices concluded that the poultry
slaughter business had only an indirect effect on
Through the remaining months of 1935 and into

1936, the Court continued to strike down federal
legislation designed to cope with the Depression. In
some cases the Court found the statutes defective
for violating the federal taxing and spending power
or for depriving individuals of their right to property
without due process of law, topics we cover in later
chapters. No matter what the reason for the
decision, the Court throughout this period was
concerned with congressional actions that went
beyond constitutional authority to regulate interstate
commerce. Congress could not constitutionally
legislate local business activity, such as
manufacturing, processing, or refining, unless it had
a direct effect on interstate commerce. The Court
supported congressional regulation when the
commerce was in movement from one state to
another, but, as demonstrated in Schechter, the
justices were unwilling to allow Congress to act on
commerce after it had completed its interstate
journey. Schechter examined when interstate
commerce ends; in May 1936 the Court taught the
administration a lesson in when interstate commerce
begins, with its decision in Carter v. Carter Coal
Company.
Congress passed the Bituminous Coal Conservation

Act in August 1935, following the Schechter
decision. This law replaced the NIRA coal codes,
which had been reasonably effective in bringing
some stability to the depressed coal industry. The
new act called for the establishment of a commission
empowered to develop regulations regarding fair
competition, production, wages, hours, and labor
relations. The commission included representatives
from coal producers, coal miners, and the public. To
fund the program, Congress imposed a tax at the
mines of 15 percent of the value of the coal
produced. As was not the case with the NIRA codes,
compliance with the new code regulations was
voluntary. There was, however, an incentive for
joining the program. Companies that participated
were given a rebate of 90 percent of the taxes levied
by the act.
James W. Carter and other shareholders urged their

company, Carter Coal, not to participate in the
program. The board of directors did not want to join,
but it believed that the company could not afford to
pay the 15 percent tax and forgo the participation
rebate. Carter and the stockholders sued to prevent
the company from joining the program on the
ground that the Coal Act was unconstitutional. Of
Carter’s several attacks on the law, the most deadly
was the charge that coal mining was not interstate
commerce.
By a 5–4 vote the justices struck down the law. The

majority held that coal mining was not interstate
commerce because the activity occurred within a
single state. The stream of commerce doctrine was
inapplicable because the movement of the coal to
other states had not yet begun. Furthermore, the
justices concluded that the production of coal did not
have a direct effect on interstate commerce. For
these reasons, the Court invalidated federal
regulation of coal mining. But Carter v. Carter Coal
was to be Roosevelt’s last major defeat at the hands
of the Four Horsemen and their allies.
The Court-Packing Plan
The Court entered its summer recess in 1936 having
completed a year and a half of dealing with
Roosevelt’s legislative program and striking down
several of the New Deal’s most important programs.
The Four Horsemen constituted a solid bloc, and in
major cases these justices could count on the
support of at least one other—usually Owen Roberts.
Roosevelt was understandably frustrated with what
he viewed as the Court’s obstructionism; he was also
impatient that no vacancies had occurred that he
might fill with appointees sympathetic to the New
Deal.
In the national elections of 1936, few doubted that

Roosevelt would be reelected and that the
Democrats would continue to control Congress.10
The only question was how big the margin was going
to be. Roosevelt won by a landslide, capturing 98
percent of the electoral votes. His Republican
opponent, Alf Landon of Kansas, carried only Maine
and Vermont. The congressional elections were also
a triumph for the Democrats. When the legislature
reconvened in early 1937, they controlled
approximately 80 percent of the seats in both
houses. With such an impressive mandate from the
people and such strong party support in Congress,
Roosevelt was willing to proceed with his planned
attack on the Court. If no vacancies on the Supreme
Court occurred naturally, Roosevelt would try to
create some.
10 Not everyone predicted a Roosevelt victory. The

Literary Digest published a famous poll during that
election year forecasting a Roosevelt defeat. The poll
has become universally regarded as a classic case of
defective research procedures. Within months after
the election, the Literary Digest was defunct.
On February 5, 1937, the president announced his

plan to reorganize the federal court system. His
proposed legislation was predicated, at least
formally, on the argument that the judiciary was too
overworked and understaffed to carry out its duties
effectively. His idea was to expand the number of
lower court judgeships; streamline federal
jurisdiction, especially with respect to cases having
constitutional significance; and adopt a flexible
method of temporarily moving lower court judges
from their normal duties to districts with case
backlogs.
To many observers these administrative reforms

were little more than a smoke screen for Roosevelt’s
proposals concerning the Supreme Court. The
president asked Congress to authorize the creation
of one new seat on the Court for every justice who
had attained the age of seventy but remained in
active service. Up to six new justices could be
appointed in this way, bringing the potential size of
the Court to a maximum of fifteen. At the time of his
proposal, six sitting justices were older than seventy.
If Roosevelt could appoint six New Deal advocates to
the Court, they probably could attract the votes of at
least two others and form a majority that would give
constitutional approval to the president’s programs.
Although Roosevelt attempted to justify his idea on
the ground that the advanced age of several sitting
justices called for the addition of younger, more-
vigorous colleagues, everyone saw the plan for what
it was—an attempt to pack the Court.
Figure 7-2 Public Support for Roosevelt’s 1937

Court-Packing Plan
Source: Lee Epstein, Jeffrey A. Segal, Harold

Spaeth, and Thomas G. Walker, The Supreme
Court Compendium: Data, Decisions, and
Developments, 6th ed. (Thousand Oaks, CA: CQ
Press, 2015), table 8-30.
Reaction was not favorable.11 Public opinion polls

taken during the course of the debate over the plan
reveal that at no time did a majority of Americans
support Roosevelt’s proposal (see Figure 7-2).
Members of the organized bar were overwhelmingly
opposed. Even with large Democratic majorities in
both houses of Congress, Roosevelt had difficulty
selling his proposal to the legislature. Chief Justice
Hughes wrote a public letter criticizing the proposal
to Senator Burton Wheeler of Montana, a leader of
Democrats opposing the president.12 The press
expressed sharp disapproval. In spite of the general
support the people gave Roosevelt and the New
Deal, they did not appreciate his tampering with the
structure of government to get his way. Roosevelt’s
response to this unexpected criticism was to go
directly to the people to press his case, and in doing
so he became a little more open about his objectives.
In his radio broadcast the president explained his
proposal and urged the American public to support it
(see Box 7-5).
11 See Gregory A. Caldeira, “Public Opinion and the

U.S. Supreme Court: FDR’s Court-Packing Plan,”
American Political Science Review 81 (December
1987): 1139–1153.
12 The letter from Hughes to Wheeler, dated March
21, 1937, is reprinted in Joan Biskupic and Elder
Witt, Guide to the U.S. Supreme Court, 3rd ed.
(Washington, DC: Congressional Quarterly, 1997),
1039–1040.
The Switch in Time That Saved

Nine
The battle in Congress over the president’s plan was
closely fought.13 A continuation of the confrontation,
however, was averted in large measure by the
actions of the justices themselves. On March 29,
1937, just twenty days after the president’s
broadcast, the Court signaled that changes were in
the making. The first indication was the 5–4 decision
in West Coast Hotel v. Parrish (1937) (excerpted in
Chapter 10), which upheld the validity of a
Washington State law regulating wages and working
conditions for women and children.
13 See William E. Leuchtenburg, “The Origins of

Franklin D. Roosevelt’s ‘Court-Packing’ Plan,” in
Supreme Court Review 1966, ed. Philip B. Kurland
(Chicago: University of Chicago Press, 1966), 347–
400; and Leuchtenburg, Franklin D. Roosevelt and
the New Deal, 1932–1940 (New York: Harper & Row,
1963).
Box 7-5 Excerpts from the White House
Broadcast, March 9, 1937
TONIGHT, sitting at my desk in the White House, I

make my first radio report to the people in my
second term of office. . . .
Last Thursday I described the American form of

Government as a three horse team provided by the
Constitution to the American people so that their
field might be plowed. The three horses are, of
course, the three branches of government—the
Congress, the Executive and the Courts. Two of
the horses are pulling in unison today; the third is
not. Those who have intimated that the President
of the United States is trying to drive that team
overlook the simple fact that the President, as
Chief Executive, is himself one of the three horses.
It is the American people themselves who are in

the driver’s seat.
It is the American people themselves who want

the furrow plowed.
It is the American people themselves who expect

the third horse to pull in unison with the other
two. . . .
When the Congress has sought to stabilize

national agriculture, to improve the conditions of
labor, to safeguard business against unfair
competition, to protect our national resources,
and in many other ways, to serve our clearly
national needs, the majority of the Court has been
assuming the power to pass on the wisdom of
these Acts of the Congress—and to approve or
disapprove the public policy written into these
laws. . . .
The Court . . . has improperly set itself up as a

third House of the Congress—a super-legislature,
as one of the Justices has called it—reading into
the Constitution words and implications which are
not there, and which were never intended to be
there.
We have, therefore, reached the point as a Nation

where we must take action to save the
Constitution from the Court and the Court from
itself. We must find a way to take an appeal from
the Supreme Court to the Constitution itself. We
want a Supreme Court which will do justice under
the Constitution—not over it. In our Courts we
want a government of laws and not of men.
I want—as all Americans want—an independent

judiciary as proposed by the framers of the
Constitution. That means a Supreme Court that
will enforce the Constitution as written—that will
refuse to amend the Constitution by the arbitrary
exercise of judicial power—amendment by judicial
say-so. It does not mean a judiciary so
independent that it can deny the existence of facts
universally recognized. . . .
What is my proposal? It is simply this: whenever a

Judge or Justice of any Federal Court has reached
the age of seventy and does not avail himself of
the opportunity to retire on a pension, a new
member shall be appointed by the President then
in office, with the approval, as required by the
Constitution, of the Senate of the United States.
That plan has two chief purposes. By bringing into

the Judicial system a steady and continuing stream
of new and younger blood, I hope, first, to make
the administration of all Federal justice speedier
and, therefore, less costly; secondly, to bring to
the decision of social and economic problems
younger men who have had personal experience
and contact with modern facts and circumstances
under which average men have to live and work.
This plan will save our national Constitution from
hardening of the judicial arteries.
The number of Judges to be appointed would

depend wholly on the decision of present Judges
now over seventy, or those who would
subsequently reach the age of seventy.
If, for instance, any one of the six Justices of the

Supreme Court now over the age of seventy
should retire as provided under the plan, no
additional place would be created. Consequently,
although there never can be more than fifteen,
there may be only fourteen, or thirteen, or twelve.
And there may be only nine.
There is nothing novel or radical about this idea. It

seeks to maintain the Federal bench in full vigor.
It has been discussed and approved by many
persons of high authority ever since a similar
proposal passed the House of Representatives in
1869. . . .
The statute would apply to all the Courts in the
Federal system. There is general approval so far
as the lower Federal courts are concerned. The
plan has met opposition only so far as the
Supreme Court of the United States itself is
concerned. If such a plan is good for the lower
courts it certainly ought to be equally good for the
highest Court from which there is no appeal.
Those opposing this plan have sought to arouse

prejudice and fear by crying that I am seeking to
“pack” the Supreme Court and that a baneful
precedent will be established.
What do they mean by the words “packing the

Court”?
Let me answer this question with a bluntness that

will end all honest misunderstanding of my
purposes.
If by that phrase “packing the Court” it is charged

that I wish to place on the bench spineless
puppets who would disregard the law and would
decide specific cases as I wished them to be
decided, I make this answer—that no President fit
for his office would appoint, and no Senate of
honorable men fit for their office would confirm,
that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I

would appoint and the Senate would confirm
Justices worthy to sit beside present members of
the Court who understand those modern
conditions—that I will appoint Justices who will
not undertake to override the judgment of the
Congress on legislative policy—that I will appoint
Justices who will act as Justices and not as
legislators—if the appointment of such Justices
can be called “packing the Courts,” then I say that
I and with me the vast majority of the American
people favor doing just that thing—now.
Is it a dangerous precedent for the Congress to

change the number of the Justices? The Congress
has always had, and will have, that power. The
number of Justices has been changed several
times before—in the Administrations of John
Adams and Thomas Jefferson—both signers of the
Declaration of Independence—Andrew Jackson,
Abraham Lincoln and Ulysses S. Grant. . . .
We think it so much in the public interest to

maintain a vigorous judiciary that we encourage
the retirement of elderly Judges by offering them a
life pension at full salary. Why then should we
leave the fulfillment of this public policy to chance
or make it dependent upon the desire or prejudice
of any individual Justice?
It is the clear intention of our public policy to

provide for a constant flow of new and younger
blood into the Judiciary. Normally every President
appoints a large number of District and Circuit
Judges and a few members of the Supreme Court.
Until my first term practically every President of
the United States had appointed at least one
member of the Supreme Court. President Taft
appointed five members and named a Chief Justice
—President Wilson three—President Harding four
including a Chief Justice—President Coolidge one
—President Hoover three including a Chief
Justice.
Such a succession of appointments should have

provided a Court well-balanced as to age. But
chance and the disinclination of individuals to
leave the Supreme bench have now given us a
Court in which five Justices will be over seventy-
five years of age before next June and one over
seventy. Thus a sound public policy has been
defeated.
I now propose that we establish by law an

assurance against any such ill-balanced Court in
the future. I propose that hereafter, when a Judge
reaches the age of seventy, a new and younger
Judge shall be added to the Court automatically. In
this way I propose to enforce a sound public policy
by law instead of leaving the composition of our
Federal Courts, including the highest, to be
determined by chance or the personal decision of
individuals.
If such a law as I propose is regarded as

establishing a new precedent—is it not a most
desirable precedent?
Like all lawyers, like all Americans, I regret the

necessity of this controversy. But the welfare of
the United States, and indeed of the Constitution
itself, is what we all must think about first. Our
difficulty with the Court today rises not from the
Court as an institution but from human beings
within it. But we cannot yield our constitutional
destiny to the personal judgment of a few men
who, being fearful of the future, would deny us the
necessary means of dealing with the present.
This plan of mine is no attack on the Court; it

seeks to restore the Court to its rightful and
historic place in our system of Constitutional
Government and to have it resume its high task of
building anew on the Constitution “a system of
living law.” . . .
During the past half century the balance of power

between the three great branches of the Federal
Government has been tipped out of balance by the
Courts in direct contradiction of the high purposes
of the framers of the Constitution. It is my purpose
to restore that balance. You who know me will
accept my solemn assurance that in a world in
which democracy is under attack, I seek to make
American democracy succeed.
Source: Fireside Chat, March 9, 1937.
“Historical Figures”—a 1937 Herblock cartoon,

copyright by The Herb Block Foundation.
A 1937 Herblock Cartoon, © The Herb Block
Foundation
Although this case involved a state law rather than a

federal statute and concerned issues of substantive
due process rather than the commerce clause, it had
great significance. Aside from the doctrinal
importance of the case, discussed in Chapter 10, it
signaled a change in the Court’s voting coalitions.
Justice Roberts, so long an ally of the Four
Horsemen, deserted the conservatives and voted
with the liberal bloc to approve the legislation. Just
months earlier Roberts had voted with the
conservatives in a 5–4 decision striking down a New
York law that was nearly identical to the one he now
approved.14
14 Morehead v. New York ex rel. Tipaldo (1936).
Two weeks later Roberts proved that his West Coast

Hotel vote was not an aberration. On April 12 the
Court issued its ruling in National Labor Relations
Board (NLRB) v. Jones & Laughlin Steel Corporation.
Once again Roberts joined Hughes, Brandeis,
Cardozo, and Stone to form a majority, this time
upholding a major piece of New Deal legislation. The
decision may be the most important economic ruling
of the twentieth century. In it the Court announced a
break from the past and ushered in a new era in the
constitutional relationship between the government
and the economy.

Laughlin Steel Corporation 301 U.S. 1 (1937)
court/301/1.html
Vote: 5 (Brandeis, Cardozo, Hughes, Roberts,

Stone)
4 (Butler, McReynolds, Sutherland, Van

Devanter)
OPINION FOR THE COURT: Hughes

DISSENTING OPINION: McReynolds
Facts:
In 1935 Congress passed the National Labor
Relations Act, more commonly known as the
Wagner Act. The purpose of the legislation was to
help workers achieve gains in wages and working
conditions through the collective bargaining
process. The act’s primary aim was to protect the
rights of employees to organize and join labor
unions and to provide a means for the
enforcement of those rights. The law authorized
the creation of the National Labor Relations Board
(NLRB), which was empowered to hear complaints
of unfair labor practices and impose certain
corrective measures. The act was based on the
power of Congress to regulate interstate
commerce and on the assertion that labor unrest
and strikes (“industrial strife”) caused
interruptions in such commerce that Congress had
the right to prevent.
Jones & Laughlin was one of the nation’s largest

steel producers. Its operations were fully
integrated, extending into many states and
involving every aspect of steel production, from
mining through production and distribution.
Complaints were filed against the company for
engaging in unfair labor practices at its plant in
Aliquippa, Pennsylvania. The charges included
discriminating against workers who wanted to join
a labor union. The NLRB ruled against the
company and ordered it to reinstate ten workers
who had been dismissed because of their union
activities. The company refused, claiming that the
Wagner Act was unconstitutional. Steel production
facilities, according to the company, were engaged
in a manufacturing activity that had been declared
by the Supreme Court to be intrastate commerce
and thus outside Congress’s regulatory authority.
The lower courts, applying existing Supreme
Court precedent, ruled in favor of the company,
and the NLRB appealed.
Arguments:
For the petitioner, National Labor
Relations Board:
The act is a legitimate exercise of preventive

power: it deals with the causes of the burden
(here, industrial strife) on interstate commerce
in anticipation of their probable effect, in much
the same way as did the act at issue in Stafford
v. Wallace. The law attempts to eliminate only
those practices “affecting commerce.” This
phrase “affecting commerce” is defined in the
law as “in commerce, or burdening or
obstructing commerce or the free flow of
commerce, or having led or tending to lead to
a labor dispute burdening or obstructing
commerce or the free flow of commerce.”
These words are patterned on language from
the Court’s commerce clause decisions.
Schechter Poultry and Carter Coal do not apply
here. In Schechter the Court rejected
arguments that wages and hours in local
industry affected interstate commerce through
an intricate chain of economic causes and
effects; any effect was indirect. In Carter Coal
the Court held that the effect of wage cutting
on interstate commerce was also indirect. The
law at issue in Carter Coal also had collective
bargaining provisions, which were included
mostly to provide a means for regulating
wages. The National Labor Relations Act, in
contrast, is designed solely to eliminate the
burden on interstate commerce caused by
industrial strife, which affects commerce
directly, without an intervening condition.
For the respondent, Jones &

Laughlin Steel Corporation:
The act, although disguised as a regulation of
interstate commerce, is a regulation of labor.
Under Schechter Poultry, the commerce clause
cannot be used to legislate labor relations,
which do not constitute a part of interstate
commerce.
Congress has tried to evade this distinction by
limiting the act to transactions “affecting
commerce,” although the provisions are broad
enough to cover almost every employment
relation. To reach the conclusion that firing a
few production employees has a consequential
effect on interstate commerce, the government
must pile assumption on assumption. This
statute is a labor law, not a regulation of
commerce, and it does not help to sustain the
pretext that an indirect connection exists
between the two.
Decisions such as Stafford v. Wallace are not
applicable here. Stockyards are
instrumentalities of interstate commerce in
much the same way as are the actual carriers
of interstate commerce. The regulated
activities in this and other cases were in the
stream of commerce and exerted a direct
effect on its flow. This doctrine does not apply
to production activities that may indirectly
affect the stream of commerce, as Carter Coal
makes clear.

First. The Scope of the Act.—The Act is challenged

in its entirety as an attempt to regulate all
industry, thus invading the reserved powers of the
States over their local concerns. It is asserted that
the references in the Act to interstate and foreign
commerce are colorable at best; that the Act is not
a true regulation of such commerce or of matters
which directly affect it but on the contrary has the
fundamental object of placing under the
compulsory supervision of the federal government
all industrial labor relations within the nation. . . .
If this conception of terms, intent and consequent

inseparability were sound, the Act would
necessarily fall by reason of the limitation upon
the federal power which inheres in the
constitutional grant, as well as because of the
explicit reservation of the Tenth Amendment. The
authority of the federal government may not be
pushed to such an extreme as to destroy the
distinction, which the commerce clause itself
establishes, between commerce “among the
several States” and the internal concerns of a
State. That distinction between what is national
and what is local in the activities of commerce is
vital to the maintenance of our federal system. . . .
We think it clear that the National Labor Relations

Act may be construed so as to operate within the
sphere of constitutional authority. The jurisdiction
conferred upon the Board, and invoked in this
instance, is found in §10 (a), which provides:
“Sec. 10 (a). The Board is empowered, as

hereinafter provided, to prevent any person
from engaging in any unfair labor practice
(listed in section 8 . . . ) affecting commerce.
The critical words of this provision,
prescribing the limits of the Board’s authority
in dealing with the labor practices, are
‘affecting commerce.’ The Act specifically
defines the ‘commerce’ to which it refers (§2
(6) . . . ):
“The term ‘commerce’ means trade, traffic,

commerce, transportation, or communication
among the several States, or between the
District of Columbia or any Territory of the
United States and any State or other Territory,
or between any foreign country and any State,
Territory, or the District of Columbia, or within
the District of Columbia or any Territory, or
between points in the same State but through
any other State or any Territory or the District
of Columbia or any foreign country.”
There can be no question that the commerce

thus contemplated by the Act (aside from that
within a Territory or the District of Columbia)
is interstate and foreign commerce in the
constitutional sense. The Act also defines the
term “affecting commerce” (§2 (7) . . . ):
“The term ‘affecting commerce’ means in

commerce, or burdening or obstructing
commerce or the free flow of commerce or
having led or tending to lead to a labor dispute
burdening or obstructing commerce or the
free flow of commerce.”
This definition is one of exclusion as well as

inclusion. The grant of authority to the Board does
not purport to extend to the relationship between
all industrial employees and employers. Its terms
do not impose collective bargaining upon all
industry regardless of effects upon interstate and
foreign commerce. It purports to reach only what
may be deemed to burden or obstruct that
commerce and, thus qualified, it must be
construed as contemplating the exercise of control
within constitutional bounds. It is a familiar
principle that acts which directly burden or
obstruct interstate or foreign commerce, or its
free flow, are within the reach of the congressional
power. Acts having that effect are not rendered
immune because they grow out of labor disputes.
It is the effect upon commerce, not the source of
the injury, which is the criterion. Whether or not
particular action does affect commerce in such a
close and intimate fashion as to be subject to
federal control, and hence to lie within the
authority conferred upon the Board, is left by the
statute to be determined as individual cases arise.
We are thus to inquire whether in the instant case
the constitutional boundary has been passed.
Second. The Unfair Labor Practices in Question.—

. . . [T]he statute goes no further than to safeguard
the right of employees to self-organization and to
select representatives of their own choosing for
collective bargaining or other mutual protection
without restraint or coercion by their employer.
That is a fundamental right. Employees have as

clear a right to organize and select their
representatives for lawful purposes as the
respondent has to organize its business and select
its own officers and agents. Discrimination and
coercion to prevent the free exercise of the right
of employees to self-organization and
representation is a proper subject for
condemnation by competent legislative authority.
Long ago we stated the reason for labor
organizations. We said that they were organized
out of the necessities of the situation; that a single
employee was helpless in dealing with an
employer; that he was dependent ordinarily on his
daily wage for the maintenance of himself and
family; that if the employer refused to pay him the
wages that he thought fair, he was nevertheless
unable to leave the employ and resist arbitrary
and unfair treatment; that union was essential to
give laborers opportunity to deal on an equality
with their employer. We reiterated these views
when we had under consideration the Railway
Labor Act of 1926. Fully recognizing the legality of
collective action on the part of employees in order
to safeguard their proper interests, we said that
Congress was not required to ignore this right but
could safeguard it. Congress could seek to make
appropriate collective action of employees an
instrument of peace rather than of strife. We said
that such collective action would be a mockery if
representation were made futile by interference
with freedom of choice. Hence the prohibition by
Congress of interference with the selection of
representatives for the purpose of negotiation and
conference between employers and employees,
“instead of being an invasion of the constitutional
right of either, was based on the recognition of the
rights of both.” We have reasserted the same
principle in sustaining the application of the
Railway Labor Act as amended in 1934.
Third. The Application of the Act to Employees

Engaged in Production.—The Principle Involved.—
Respondent says that whatever may be said of
employees engaged in interstate commerce, the
industrial relations and activities in the
manufacturing department of respondent’s
enterprise are not subject to federal regulation.
The argument rests upon the proposition that
manufacturing in itself is not commerce.
The Government distinguishes these cases. The

various parts of respondent’s enterprise are
described as interdependent and as thus involving
“a great movement of iron ore, coal and limestone
along well-defined paths to the steel mills, thence
through them, and thence in the form of steel
products into the consuming centers of the
country—a definite and well-understood course of
business.” It is urged that these activities
constitute a “stream” or “flow” of commerce, of
which the Aliquippa manufacturing plant is the
focal point, and that industrial strife at that point
would cripple the entire government. Reference is
made to our decision sustaining the Packers and
Stockyards Act. . . .
We do not find it necessary to determine whether

these features of defendant’s business dispose of
the asserted analogy to the “stream of commerce”
cases. The instances in which that metaphor has
been used are but particular, and not exclusive,
illustrations of the protective power which the
Government invokes in support of the present Act.
The congressional authority to protect interstate
commerce from burdens and obstructions is not
limited to transactions which can be deemed to be
an essential part of a “flow” of interstate or
foreign commerce. Burdens and obstructions may
be due to injurious action springing from other
sources. The fundamental principle is that the
power to regulate commerce is the power to enact
“all appropriate legislation” for “its protection and
advancement”; to adopt measures “to promote its
growth and insure its safety”; “to foster, protect,
control and restrain.” That power is plenary and
may be exerted to protect interstate commerce
“no matter what the source of the dangers which
threaten it.” Although activities may be intrastate
in character when separately considered, if they
have such a close and substantial relation to
interstate commerce that their control is essential
or appropriate to protect that commerce from
burdens and obstructions, Congress cannot be
denied the power to exercise that control. . . .
It is thus apparent that the fact that the

employees here concerned were engaged in
production is not determinative. The question
remains as to the effect upon interstate commerce
of the labor practice involved. . . .
Fourth. Effects of the Unfair Labor Practice in

Respondent’s Enterprise.—Giving full weight to
respondent’s contention with respect to a break in
the complete continuity of the “stream of
commerce” by reason of respondent’s
manufacturing operations, the fact remains that
the stoppage of those operations by industrial
strife would have a most serious effect upon
interstate commerce. In view of respondent’s far-
flung activities, it is idle to say that the effect
would be indirect or remote. It is obvious that it
would be immediate and might be catastrophic.
We are asked to shut our eyes to the plainest facts
of our national life and to deal with the question of
direct and indirect effects in an intellectual
vacuum. Because there may be but indirect and
remote effects upon interstate commerce in
connection with a host of local enterprises
throughout the country, it does not follow that
other industrial activities do not have such a close
and intimate relation to interstate commerce as to
make the presence of industrial strife a matter of
the most urgent national concern. When industries
organize themselves on a national scale, making
their relation to interstate commerce the
dominant factor in their activities, how can it be
maintained that their industrial labor relations
constitute a forbidden field into which Congress
may not enter when it is necessary to protect
interstate commerce from the paralyzing
consequences of industrial war? We have often
said that interstate commerce itself is a practical
conception. It is equally true that interferences
with that commerce must be appraised by a
judgment that does not ignore actual experience.
Experience has abundantly demonstrated that the

recognition of the right of employees to self-
organization and to have representatives of their
own choosing for the purpose of collective
bargaining is often an essential condition of
industrial peace. Refusal to confer and negotiate
has been one of the most prolific causes of strife.
This is such an outstanding fact in the history of
labor disturbances that it is a proper subject of
judicial notice and requires no citation of
instances. . . .These questions have frequently
engaged the attention of Congress and have been
the subject of many inquiries. The steel industry is
one of the great basic industries of the United
States, with ramifying activities affecting
interstate commerce at every point. The
Government aptly refers to the steel strike of
1919–1920 with its far-reaching consequences.
The fact that there appears to have been no major
disturbance in that industry in the more recent
period did not dispose of the possibilities of future
and like dangers to interstate commerce which
Congress was entitled to foresee and to exercise
its protective power to forestall. It is not
necessary again to detail the facts as to
respondent’s enterprise. Instead of being beyond
the pale, we think that it presents in a most
striking way the close and intimate relation which
a manufacturing industry may have to interstate
commerce and we have no doubt that Congress
had constitutional authority to safeguard the right
of respondent’s employees to self-organization and
freedom in the choice of representatives for
collective bargaining. . . .
Reversed.
MR. JUSTICE MCREYNOLDS

delivered the following
dissenting opinion in the cases
preceding:
MR. JUSTICE VAN DEVANTER, MR. JUSTICE
SUTHERLAND, MR. JUSTICE BUTLER and I are
unable to agree with the decisions just announced.
...
Considering the far-reaching import of these

decisions, the departure from what we understand
has been consistently ruled here, and the
extraordinary power confirmed to a Board of three
[the NLRB], the obligation to present our views
becomes plain. . . .
The precise question for us to determine is

whether in the circumstances disclosed Congress
has power to authorize what the Labor Board
commanded the respondents to do. Stated
otherwise, in the circumstances here existing
could Congress by statute direct what the Board
has ordered? . . .
The argument in support of the Board affirms:

“Thus the validity of any specific application of the
preventive measures of this Act depends upon
whether industrial strife resulting from the
practices in the particular enterprise under
consideration would be of the character which
Federal power could control if it occurred. If strife
in that enterprise could be controlled, certainly it
could be prevented.”
Manifestly that view of Congressional power

would extend it into almost every field of human
industry. With striking lucidity, fifty years ago,
Kidd v. Pearson declared: “If it be held that the
term [commerce with foreign Nations, and among
the several States] includes the regulation of all
such manufactures as are intended to be the
subject of commercial transactions in the future, it
is impossible to deny that it would also include all
productive industries that contemplate the same
thing. The result would be that Congress would be
invested, to the exclusion of the States, with the
power to regulate, not only manufactures, but also
agriculture, horticulture, stock raising, domestic
fisheries, mining—in short, every branch of human
activity.” This doctrine found full approval in
United States v. E. C. Knight Co., Schechter
Poultry Corp. v. United States, and Carter v.
Carter Coal Co., where the authorities are
collected and principles applicable here are
discussed. . . .
The Constitution still recognizes the existence of

states with indestructible powers; the Tenth
Amendment was supposed to put them beyond
controversy.
We are told that Congress may protect the

“stream of commerce” and that one who buys raw
material without the state, manufactures it
therein, and ships the output to another state is in
that stream. Therefore it is said he may be
prevented from doing anything which may
interfere with its flow.
This, too, goes beyond the constitutional

limitations heretofore enforced. If a man raises
cattle and regularly delivers them to a carrier for
interstate shipment, may Congress prescribe the
conditions under which he may employ or
discharge helpers on the ranch? The products of a
mine pass daily into interstate commerce; many
things are brought to it from other states. Are the
owners and miners within the power of Congress
in respect of the miners’ tenure and discharge?
May a mill owner be prohibited from closing his
factory or discontinuing his business because so to
do would stop the flow of products to and from his
plant in interstate commerce? May employees in a
factory be restrained from quitting work in a body
because this will close the factory and thereby
stop the flow of commerce? May arson of a factory
be made a Federal offense whenever this would
interfere with such flow? If the business cannot
continue with the existing wage scale, may
Congress command a reduction? If the ruling of
the Court just announced is adhered to these
questions suggest some of the problems certain to
arise. . . .
There is no ground on which reasonably to hold

that refusal by a manufacturer, whose raw
materials come from states other than that of his
factory and whose products are regularly carried
to other states, to bargain collectively with
employees in his manufacturing plant, directly
affects interstate commerce. In such business,
there is not one but two distinct movements or
streams in interstate transportation. The first
brings in raw material and there ends. Then
follows manufacture, a separate and local activity.
Upon completion of this, and not before, the
second distinct movement or stream in interstate
commerce begins and the products go to other
states. Such is the common course for small as
well as large industries. It is unreasonable and
unprecedented to say the commerce clause
confers upon Congress power to govern the
relations between employers and employees in
these local activities. In Schechter’s case we
condemned as unauthorized by the commerce
clause assertion of federal power in respect of
commodities which had come to rest after
interstate transportation. And, in Carter’s case,
we held Congress lacked the power to regulate
labor relations in respect of commodities before
interstate commerce has begun.
It is gravely stated that experience teaches that if

an employer discourages membership in “any
organization of any kind” “in which employees
participate, and which exists for the purpose in
whole or in part of dealing with employers
concerning grievances, labor disputes, wages,
rates of pay, hours of employment or conditions of
work,” discontent may follow and this in turn may
lead to a strike, and as the outcome of the strike
there may be a block in the stream of interstate
commerce. Therefore Congress may inhibit the
discharge! Whatever effect any cause of
discontent may ultimately have upon commerce is
far too indirect to justify Congressional regulation.
Almost anything—marriage, birth, death—may in
some fashion affect commerce.
That Congress has power by appropriate means,

not prohibited by the Constitution, to prevent
direct and material interference with the conduct
of interstate commerce is settled doctrine. But the
interference struck at must be direct and material,
not some mere possibility contingent on wholly
uncertain events; and there must be no
impairment of rights guaranteed. . . .
The things inhibited by the Labor Act relate to the

management of a manufacturing plant—something
distinct from commerce and subject to the
authority of the state. And this may not be
abridged because of some vague possibility of
distant interference with commerce. . . .
The right to contract is fundamental and includes

the privilege of selecting those with whom one is
willing to assume contractual relations. This right
is unduly abridged by the Act now upheld. A
private owner is deprived of power to manage his
own property by freely selecting those to whom
his manufacturing operations are to be entrusted.
We think this cannot lawfully be done in
circumstances like those here disclosed.
It seems clear to us that Congress has

transcended the powers granted.
Justice Owen Roberts. He cast critical votes in

1937 Supreme Court cases that expanded the
authority of the federal government to regulate
the economy.
Collection of the Supreme Court of the United
States
The decisions in West Coast Hotel v. Parrish and

NLRB v. Jones & Laughlin Steel took the energy out
of Roosevelt’s drive to pack the Court. It no longer
appeared necessary, as the Court now was looking
with greater approval at state and federal legislation
to correct the failing economy. In addition, on May
18, 1937, Justice Van Devanter, a consistent foe of
Roosevelt’s New Deal programs, announced that he
would retire from the Court at the end of the term.
At long last the president would have an opportunity
to put a justice of his own choosing on the Court.
On June 7 the Senate Judiciary Committee
recommended that the Court-packing bill not be
passed. To the president’s great displeasure, seven
of the ten senators signing the report were
Democrats. Majority Leader Joseph Robinson (D-
Ark.) mounted a last-ditch effort on behalf of the
president, advocating a compromise plan that would
have raised the threshold age for replacing the
justices from seventy to seventy-five years. Robinson
made considerable progress in forging a coalition to
pass this modified plan, but the effort stalled when
he died from a heart attack on July 14.15
15 For a full account of the events surrounding this

compromise plan, see William E. Leuchtenburg,
“FDR’s Court-Packing Plan: A Second Life, a Second
Death,” Duke Law Journal (June–September 1985):
673–689.
Much has been said and written about Justice

Roberts’s change in position. At the time, it was
described as “the switch in time that saved nine,”
because his move from the conservative to the
liberal wing of the Court was largely responsible for
killing the Court-packing plan and preserving the
Court as a nine-justice institution. Such a
characterization is not flattering for a judge, who is
not supposed to make decisions on the basis of
external political pressures. Nevertheless, it would
certainly be understandable for a justice to rethink
his views if the future of the Court as an institution
were at stake.
More-contemporary analyses of Roberts’s switch
point out that the notion that he caved in to the
pressures of the president’s plan is overly simplistic.
Although the decision in West Coast Hotel was
announced after Roosevelt sent his proposal to
Congress, it was argued and initially voted on weeks
before the president made his plans public.
Roosevelt had kept the Court-packing proposal
carefully under wraps before he announced it, and
the likelihood that the justices had advance
knowledge of it is slight. Furthermore, Roberts was
not a doctrinaire conservative. Although he joined
the Court’s right wing in several important
decisions, he did not have the laissez-faire zeal of the
Four Horsemen. In fact, Roberts had voted on a
number of occasions in support of state efforts to
combat economic problems.16 Some observers now
conclude that Roberts’s change of position was
primarily a matter of his growing disenchantment
with the hard-line conservative view and that he
followed “his sound judicial intuition to a well-
reasoned position in keeping with the public
interest.”17 As for Roberts’s own explanation, he
maintained traditional judicial silence. When asked
in a 1946 interview why he had altered his position,
he deflected the question by responding, “Who
knows what causes a judge to decide as he does?
Maybe the breakfast he had has something to do
with it.”18 Whatever the reasons for his switch, it
broke the conservatives’ domination of the Court.
16 See, for example, his opinion for the Court in
Nebbia v. New York (1934).
17 Merlo J. Pusey, “Justice Roberts’ 1937

Turnaround,” in Yearbook of the Supreme Court
Historical Society (Washington, DC: Supreme Court
Historical Society, 1983), 107.
18 Ibid., 106.
Consolidating the New

Interpretation of the Commerce
Power
Justice Van Devanter’s retirement was followed over
the next four years by the retirements of Justices
Sutherland and Brandeis and the deaths of Justices
Cardozo and Butler. By 1940 Franklin Roosevelt had
appointed a majority of the sitting justices. And in
1941 Justice McReynolds, the last of the Four
Horsemen, also retired.
With NLRB v. Jones & Laughlin Steel showing the

way, the increasingly liberal Court upheld a number
of New Deal programs. It also continued to expand
the concept of interstate commerce. Gone were the
old notions that production, manufacturing, mining,
and processing were exclusively intrastate affairs
with insufficient direct effects on interstate
commerce to activate federal commerce powers.
Precedents such as E. C. Knight, Hammer, Panama
Refining, Schechter Poultry, and Carter Coal were
substantially overruled or discredited, or severely
limited (see Box 7-6).
Of all the cases during this period, two are

considered among the Court’s most important
statements on congressional commerce power:
United States v. Darby (1941) and Wickard v. Filburn
(1942). Not only do they provide insight into
modern-era commerce clause doctrine, but they also
illustrate how far the Court had moved from its pre-
1937 idea of interstate commerce. As you read
Darby, keep in mind decisions such as Hammer v.
Dagenhart, in which the Court struck down an act
prohibiting the shipment in interstate commerce of
products made by children. Regulating child labor,
the Court reasoned, was not “expressly” delegated
to the federal government and so, by virtue of the
Tenth Amendment, belonged to the states. As you
compare Wickard to earlier rulings, recall that in E.
C. Knight a sugar trust that controlled 98 percent of
the nation’s sugar refining was considered to be
operating in intrastate commerce. And in Carter v.
Carter Coal, the entire coal mining industry was said
to be outside the power of Congress to regulate
interstate commerce. How do these industries
compare with Roscoe Filburn’s farm [COMP: Update
page reference to Wickard v. Filburn case] (see p.
454)?
Box 7-6 Supreme Court Expansion of the
Commerce Powers, 1937–1942
United States v. Darby 312 U.S. 100 (1941)
court/312/100.html
Vote: 8 (Black, Douglas, Frankfurter, Hughes,

Murphy, Reed, Roberts, Stone)
0
OPINION OF THE COURT: Stone
Facts:
In 1938 Congress, under its power to regulate
interstate commerce, enacted a major piece of
New Deal legislation, the Fair Labor Standards
Act (FLSA). It provided that all employers
“engaged in interstate commerce, or in the
production of goods for that commerce” must pay
all their employees a minimum wage of twenty-five
cents per hour and not permit employees to work
longer than forty-four hours per week without
paying them one and one-half times their regular
pay for their overtime hours. In November 1939
the federal government sought and obtained an
indictment against Fred W. Darby for violating the
FLSA. The indictment alleged that Darby, the
owner of a lumber company, was engaged in the
production and manufacturing of goods shipped
out of state, but that he had not abided by either
of the FLSA’s principal pay requirements.
Darby did not dispute the charges but invoked the

logic of Hammer v. Dagenhart and other pre-1937
cases. The government responded with legal and
pragmatic arguments.
Arguments:
For the appellant, United States:
The meaning of the phrase interstate
commerce at the time the commerce clause
was drafted included manufacturing and the
entire economy. Therefore, Congress is
empowered by the Constitution to regulate all
of these areas.
Due to interstate commercial competition, no
one state can require higher labor standards in
the absence of a uniform federal law.
Employers with lower labor standards would
have an unfair advantage in interstate
competition, and only the national government
can pragmatically act on the problem. The
lumber industry well illustrates the problem of
the inability of the states to ensure adequate
labor conditions: more than 57 percent of the
lumber produced enters into interstate
commerce from forty-five of the states.
The commerce clause power should be
assessed by what it regulates, not by what it
affects. Intrastate acts lie within the power of
Congress when it is necessary to effectively
control interstate transactions, and Congress
need not wait until transportation begins to
protect the flow of commerce.
Since McCulloch the Court has recognized that
the Tenth Amendment is not a limit on the
powers of the federal government. That
doctrine has not been overruled, and it cannot
be overruled by implication by the recent cases
suggesting otherwise.
For the appellee, Fred W. Darby:

The act is an unconstitutional attempt to
regulate the conditions surrounding the
production of goods and commodities; it is not
a regulation of interstate commerce within the
delegated power to Congress under the
commerce clause.
The government’s argument is an indirect
attack upon the dual system of government
established by the framers. Allowing the
federal government to control anything related
to economic issues is directly contrary to the
doctrine that the federal government is a
government of limited and enumerated
powers. The Tenth Amendment guarantees
that certain powers are reserved to the states
and the people.
The mere fact that individual states cannot
adequately protect the markets outside their
borders for the sale of their products does not
give the national government unqualified
power to regulate competition in those
interstate markets.
Mr. Justice Stone Delivered the Opinion of the

Court.
The two principal questions raised by the record

in this case are, first, whether Congress has
constitutional power to prohibit the shipment in
interstate commerce of lumber manufactured by
employees whose wages are less than a prescribed
minimum or whose weekly hours of labor at that
wage are greater than a prescribed maximum
[Section 15(1)], and, second, whether it has power
to prohibit the employment of workmen in the
production of goods “for interstate commerce” at
other than prescribed wages and hours [Section
15(a)(2)]. . . .
The prohibition of shipment of the proscribed

goods in interstate commerce. Section 15(a)(1)
prohibits, and the indictment charges, the
shipment in interstate commerce, of goods
produced for interstate commerce by employees
whose wages and hours of employment do not
conform to the requirements of the Act. [T]he only
question arising under the commerce clause with
respect to such shipments is whether Congress
has the constitutional power to prohibit them.
While manufacture is not, of itself, interstate

commerce, the shipment of manufactured goods
interstate is such commerce, and the prohibition
of such shipment by Congress is indubitably a
regulation of the commerce. The power to
regulate commerce is the power “to prescribe the
rule by which commerce is governed.” Gibbons v.
Ogden. It extends not only to those regulations
which aid, foster and protect the commerce, but
embraces those which prohibit it. It is conceded
that the power of Congress to prohibit
transportation in interstate commerce includes
noxious articles, Lottery Case, Hoke v. United
States . . . , kidnapped persons and articles, such
as intoxicating liquor or convict made goods,
traffic in which is forbidden or restricted by the
laws of the state of destination.
But it is said that the present prohibition falls
within the scope of none of these categories; that,
while the prohibition is nominally a regulation of
the commerce, its motive or purpose is regulation
of wages and hours of persons engaged in
manufacture, the control of which has been
reserved to the states. . . . [It is said that] under
the guise of a regulation of interstate commerce,
[Congress] undertakes to regulate wages and
hours within the state contrary to the policy of the
state which has elected to leave them
unregulated.
The power of Congress over interstate commerce

“is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations
other than are prescribed in the Constitution.”
Gibbons v. Ogden. That power can neither be
enlarged nor diminished by the exercise or
nonexercise of state power. Congress, following its
own conception of public policy concerning the
restrictions which may appropriately be imposed
on interstate commerce, is free to exclude from
the commerce articles whose use in the states for
which they are destined it may conceive to be
injurious to the public health, morals or welfare,
even though the state has not sought to regulate
their use.
Such regulation is not a forbidden invasion of

state power merely because either its motive or its
consequence is to restrict the use of articles of
commerce within the states of destination, and is
not prohibited unless by other Constitutional
provisions. It is no objection to the assertion of the
power to regulate interstate commerce that its
exercise is attended by the same incidents which
attend the exercise of the police power of the
states.
The motive and purpose of the present regulation

are plainly to make effective the Congressional
conception of public policy that interstate
commerce should not be made the instrument of
competition in the distribution of goods produced
under substandard labor conditions, which
competition is injurious to the commerce and to
the states from and to which the commerce flows.
The motive and purpose of a regulation of
interstate commerce are matters for the
legislative judgment upon the exercise of which
the Constitution places no restriction, and over
which the courts are given no control. . . .
In the more than a century which has elapsed

since the decision of Gibbons v. Ogden, these
principles of constitutional interpretation have
been so long and repeatedly recognized by this
Court as applicable to the Commerce Clause that
there would be little occasion for repeating them
now were it not for the decision of this Court
twenty-two years ago in Hammer v. Dagenhart. In
that case, it was held by a bare majority of the
Court, over the powerful and now classic dissent
of Mr. Justice Holmes setting forth the
fundamental issues involved, that Congress was
without power to exclude the products of child
labor from interstate commerce. The reasoning
and conclusion of the Court’s opinion there cannot
be reconciled with the conclusion which we have
reached, that the power of Congress under the
Commerce Clause is plenary to exclude any article
from interstate commerce subject only to the
specific prohibitions of the Constitution.
Hammer v. Dagenhart has not been followed. The

distinction on which the decision was rested, that
Congressional power to prohibit interstate
commerce is limited to articles which in
themselves have some harmful or deleterious
property—a distinction which was novel when
made and unsupported by any provision of the
Constitution—has long since been abandoned. . . .
The conclusion is inescapable that Hammer v.

Dagenhart was a departure from the principles
which have prevailed in the interpretation of the
Commerce Clause both before and since the
decision, and that such vitality, as a precedent, as
it then had, has long since been exhausted. It
should be, and now is, overruled.
Validity of the wage and hour requirements.

Section 15(a)(2) [requires] employers to conform
to the wage and hour provisions with respect to all
employees engaged in the production of goods for
interstate commerce. As appellee’s employees are
not alleged to be “engaged in interstate
commerce,” the validity of the prohibition turns on
the question whether the employment, under
other than the prescribed labor standards, of
employees engaged in the production of goods for
interstate commerce is so related to the
commerce, and so affects it, as to be within the
reach of the power of Congress to regulate it. . . .
The obvious purpose of the Act was not only to

prevent the interstate transportation of the
proscribed product, but to stop the initial step
toward transportation, production with the
purpose of so transporting it. Congress was not
unaware that most manufacturing businesses
shipping their product in interstate commerce
make it in their shops without reference to its
ultimate destination, and then, after manufacture,
select some of it for shipment interstate and some
intrastate, according to the daily demands of their
business, and that it would be practically
impossible, without disrupting manufacturing
businesses, to restrict the prohibited kind of
production to the particular pieces of lumber,
cloth, furniture or the like which later move in
interstate, rather than intrastate, commerce.
There remains the question whether such

restriction on the production of goods for
commerce is a permissible exercise of the
commerce power. The power of Congress over
interstate commerce is not confined to the
regulation of commerce among the states. It
extends to those activities intrastate which so
affect interstate commerce or the exercise of the
power of Congress over it as to make regulation of
them appropriate means to the attainment of a
legitimate end, the exercise of the granted power
of Congress to regulate interstate commerce. See
McCulloch v. Maryland.
While this Court has many times found state

regulation of interstate commerce, when
uniformity of its regulation is of national concern,
to be incompatible with the Commerce Clause
even though Congress has not legislated on the
subject, the Court has never implied such restraint
on state control over matters intrastate not
deemed to be regulations of interstate commerce
or its instrumentalities even though they affect the
commerce. In the absence of Congressional
legislation on the subject, state laws which are not
regulations of the commerce itself or its
instrumentalities are not forbidden, even though
they affect interstate commerce.
But it does not follow that Congress may not, by

appropriate legislation, regulate intrastate
activities where they have a substantial effect on
interstate commerce. A recent example is the
National Labor Relations Act for the regulation of
employer and employee relations in industries in
which strikes, induced by unfair labor practices
named in the Act, tend to disturb or obstruct
interstate commerce. See National Labor
Relations Board v. Jones & Laughlin Steel Corp.
But, long before the adoption of the National
Labor Relations Act, this Court had many times
held that the power of Congress to regulate
interstate commerce extends to the regulation
through legislative action of activities intrastate
which have a substantial effect on the commerce
or the exercise of the Congressional power over it.
In such legislation, Congress has sometimes left it
to the courts to determine whether the intrastate
activities have the prohibited effect on the
commerce, as in the Sherman Act. . . .In passing
on the validity of legislation of the class last
mentioned, the only function of courts is to
determine whether the particular activity
regulated or prohibited is within the reach of the
federal power.
Congress having by the present Act adopted the
policy of excluding from interstate commerce all
goods produced for the commerce which do not
conform to the specified labor standards, it may
choose the means reasonably adapted to the
attainment of the permitted end even though they
involve control of intrastate activities. Such
legislation has often been sustained with respect
to powers other than the commerce power
granted to the national government when the
means chosen, although not themselves within the
granted power, were nevertheless deemed
appropriate aids to the accomplishment of some
purpose within an admitted power of the national
government. A familiar like exercise of power is
the regulation of intrastate transactions which are
so commingled with or related to interstate
commerce that all must be regulated if the
interstate commerce is to be effectively controlled.
Shreveport Case.
We think also that §15(a)(2), now under

consideration, is sustainable independently of
§15(a)(1), which prohibits shipment or
transportation of the proscribed goods. As we
have said, the evils aimed at by the Act are the
spread of substandard labor conditions through
the use of the facilities of interstate commerce for
competition by the goods so produced with those
produced under the prescribed or better labor
conditions, and the consequent dislocation of the
commerce itself caused by the impairment or
destruction of local businesses by competition
made effective through interstate commerce. The
Act is thus directed at the suppression of a
method or kind of competition in interstate
commerce which it has, in effect, condemned as
“unfair,” . . . made effective through interstate
commerce.
The Sherman Act and the National Labor

Relations Act are familiar examples of the exertion
of the commerce power to prohibit or control
activities wholly intrastate because of their effect
on interstate commerce. . . .
The means adopted by §15(a)(2) for the protection

of interstate commerce by the suppression of the
production of the condemned goods for interstate
commerce is so related to the commerce, and so
affects it, as to be within the reach of the
commerce power. Congress, to attain its objective
in the suppression of nationwide competition in
interstate commerce by goods produced under
substandard labor conditions, has made no
distinction as to the volume or amount of
shipments in the commerce or of production for
commerce by any particular shipper or producer.
It recognized that, in present day industry,
competition by a small part may affect the whole,
and that the total effect of the competition of
many small producers may be great. The
legislation, aimed at a whole, embraces all its
parts.
So far as Carter v. Carter Coal Co. is inconsistent

with this conclusion, its doctrine is limited in
principle by the decisions under the Sherman Act
and the National Labor Relations Act, which we
have cited and which we follow.
Our conclusion is unaffected by the Tenth
Amendment, which provides:
The powers not delegated to the United States

by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively,
or to the people.
The amendment states but a truism that all is

retained which has not been surrendered. There is
nothing in the history of its adoption to suggest
that it was more than declaratory of the
relationship between the national and state
governments as it had been established by the
Constitution before the amendment, or that its
purpose was other than to allay fears that the new
national government might seek to exercise
powers not granted, and that the states might not
be able to exercise fully their reserved powers.
From the beginning and for many years, the

amendment has been construed as not depriving
the national government of authority to resort to
all means for the exercise of a granted power
which are appropriate and plainly adapted to the
permitted end. McCulloch v. Maryland. . . .
Reversed.
Wickard v. Filburn 317 U.S. 111 (1942)
court/317/111.html
Vote: 9 (Black, Byrnes, Douglas, Frankfurter,
Jackson, Murphy, Reed, Roberts, Stone)
OPINION OF THE COURT: Jackson
Facts:
The 1938 Agricultural Adjustment Act, as
amended, allowed the secretary of agriculture to
establish production limits for various grains.
Under these limits, acreage allotments were
assigned to the individual farmer. The purpose of
the law was to stop wild swings in grain prices by
eliminating surpluses and shortfalls.
Roscoe Filburn owned a small farm in

Montgomery County, Ohio. For many years he
raised dairy cattle and chickens, selling the milk,
poultry, and eggs the farm produced. He also
raised winter wheat on a small portion of his farm.
He sold some wheat and used the rest to feed his
cattle and chickens, make flour for home
consumption, and produce seeds for the next
planting.
In July 1940 Secretary of Agriculture Claude R.

Wickard set the wheat production limits for the
1941 crop. Filburn was allotted 11.1 acres to be
planted in wheat with a yield of 20.1 bushels per
acre. He planted not only his allotted acres but
also some other land to produce the wheat for
home consumption. In total Filburn planted 23
acres in wheat, from which he harvested 239
bushels more than the government allowed him.
For this excess planting Filburn was fined
$117.11. He refused to pay the fine, claiming that
Congress had exceeded its powers under the
commerce clause by regulating the planting by an
individual of wheat on his own property for on-
farm consumption. The lower court ruled in
Filburn’s favor, and Secretary Wickard appealed.
Arguments:
For the appellant, Claude R. Wickard,
secretary of agriculture, et al.:
The quota on wheat is a valid exercise of the

commerce power. That the law penalizes
excess wheat, which is available for marketing
but is consumed as feed, seed, or household
food, does not make it invalid. Because
excessive wheat affects national price and
supply, Congress reasonably concluded that
orderly interstate marketing and reasonable
interstate prices could best be achieved if the
quota system applied to all wheat available for
marketing and not just to that actually sold.
The quota system was also adopted because of
the practical difficulties in devising an
enforcement system limited to wheat sold. It
would be impossible for the government to
check on all sales by the more than 1 million
wheat producers. Under the current system,
enforcement is feasible because all the
government needs to know is the amount of
acreage planted by the farmer and the average
yield per acre.
Under the Constitution, Congress can choose
whatever means it deems appropriate and
necessary to carry out its policy of keeping
excess wheat off the interstate market under
its commerce clause power.
Roscoe Filburn, the Ohio farmer who

unsuccessfully argued that Congress lacked the
constitutional power to regulate the production of
wheat intended for on-farm consumption.
Courtesy of Mary Lou Spurgeon
For the appellee, Roscoe

Filburn:
Neither interstate nor intrastate commerce, nor
an intermingling between the two, is at issue
here. It involves wheat that a farmer may
consume on his own farm for food, seed, or
feed. It at no time moves into commerce
between the states, nor even in a state. It is
under the control of the farmer and has not
moved into any channel of trade; it is private
property.
The government insists that wheat used on a
farm for the farmer’s own purposes is in
competition with commercial feed and seeds.
This is too absurd to take seriously. This is akin
to saying that because person A manufactures
a radio, A cannot use the radio in his own
home but must instead buy a radio from
person B so that B can continue his business
and B must buy a radio from A to keep A in
business. Neither party can have the benefit of
his own product.
Mr. Justice Jackson Delivered the Opinion of

the Court.
It is urged that under the Commerce Clause of the

Constitution, Article I, §8, clause 3, Congress does
not possess the power it has in this instance
sought to exercise. The question would merit little
consideration since our decision in United States
v. Darby sustaining the federal power to regulate
production of goods for commerce, except for the
fact that this Act extends federal regulation to
production not intended in any part for commerce
but wholly for consumption on the farm. The Act
includes a definition of “market” and its
derivatives, so that as related to wheat, in addition
to its conventional meaning, it also means to
dispose of “by feeding (in any form) to poultry or
livestock which, or the products of which, are sold,
bartered, or exchanged, or to be so disposed of.”
Hence, marketing quotas not only embrace all that
may be sold without penalty but also what may be
consumed on the premises. Wheat produced on
excess acreage is designated as “available for
marketing” as so defined, and the penalty is
imposed thereon. Penalties do not depend upon
whether any part of the wheat, either within or
without the quota, is sold or intended to be sold.
The sum of this is that the Federal Government
fixes a quota including all that the farmer may
harvest for sale or for his own farm needs, and
declares that wheat produced on excess acreage
may neither be disposed of nor used except upon
payment of the penalty, or except it is stored as
required by the Act or delivered to the Secretary
of Agriculture.
Appellee says that this is a regulation of

production and consumption of wheat. Such
activities are, he urges, beyond the reach of
Congressional power under the Commerce Clause,
since they are local in character, and their effects
upon interstate commerce are at most “indirect.”
In answer the Government argues that the statute
regulates neither production nor consumption, but
only marketing; and, in the alternative, that if the
Act does go beyond the regulation of marketing it
is sustainable as a “necessary and proper”
implementation of the power of Congress over
The Government’s concern lest the Act be held to
be a regulation of production or consumption,
rather than of marketing, is attributable to a few
dicta and decisions of this Court which might be
understood to lay it down that activities such as
“production,” “manufacturing,” and “mining” are
strictly “local” and, except in special
circumstances which are not present here, cannot
be regulated under the commerce power because
their effects upon interstate commerce are, as
matter of law, only “indirect.” Even today, when
this power has been held to have great latitude,
there is no decision of this Court that such
activities may be regulated where no part of the
product is intended for interstate commerce or
intermingled with the subjects thereof. We believe
that a review of the course of decision under the
Commerce Clause will make plain, however, that
questions of the power of Congress are not to be
decided by reference to any formula which would
give controlling force to nomenclature such as
“production” and “indirect” and foreclose
consideration of the actual effects of the activity in
question upon interstate commerce.
At the beginning Chief Justice Marshall described

the federal commerce power with a breadth never
yet exceeded. Gibbons v. Ogden. He made
emphatic the embracing and penetrating nature of
this power by warning that effective restraints on
its exercise must proceed from political rather
than from judicial processes.
For nearly a century, however, decisions of this

Court under the Commerce Clause dealt rarely
with questions of what Congress might do in the
exercise of its granted power under the Clause,
and almost entirely with the permissibility of state
activity which it was claimed discriminated
against or burdened interstate commerce. During
this period there was perhaps little occasion for
the affirmative exercise of the commerce power,
and the influence of the Clause on American life
and law was a negative one, resulting almost
wholly from its operation as a restraint upon the
powers of the states. In discussion and decision
the point of reference, instead of being what was
“necessary and proper” to the exercise by
Congress of its granted power, was often some
concept of sovereignty thought to be implicit in
the status of statehood. Certain activities such as
“production,” “manufacturing,” and “mining” were
occasionally said to be within the province of state
governments and beyond the power of Congress
under the Commerce Clause.
It was not until 1887, with the enactment of the

Interstate Commerce Act, that the interstate
commerce power began to exert positive influence
in American law and life. This first important
federal resort to the commerce power was
followed in 1890 by the Sherman Anti-Trust Act
and, thereafter, mainly after 1903, by many
others. These statutes ushered in new phases of
adjudication, which required the Court to
approach the interpretation of the Commerce
Clause in the light of an actual exercise by
Congress of its power thereunder.
When it first dealt with this new legislation, the

Court adhered to its earlier pronouncements, and
allowed but little scope to the power of Congress.
United States v. Knight Co. These earlier
pronouncements also played an important part in
several of the five cases in which this Court later
held that Acts of Congress under the Commerce
Clause were in excess of its power.
Even while important opinions in this line of

restrictive authority were being written, however,
other cases called forth broader interpretations of
the Commerce Clause destined to supersede the
earlier ones, and to bring about a return to the
principles first enunciated by Chief Justice
Marshall in Gibbons v. Ogden. . . .
Whether the subject of the regulation in question

was “production,” “consumption,” or “marketing”
is . . . not material for purposes of deciding the
question of federal power before us. That an
activity is of local character may help in a doubtful
case to determine whether Congress intended to
reach it. The same consideration might help in
determining whether in the absence of
Congressional action it would be permissible for
the state to exert its power on the subject matter,
even though in so doing it to some degree affected
interstate commerce. But even if appellee’s
activity be local and though it may not be
regarded as commerce, it may still, whatever its
nature, be reached by Congress if it exerts a
substantial economic effect on interstate
commerce, and this irrespective of whether such
effect is what might at some earlier time have
been defined as “direct” or “indirect.” . . .
The effect of consumption of home-grown wheat

on interstate commerce is due to the fact that it
constitutes the most variable factor in the
disappearance of the wheat crop. Consumption on
the farm where grown appears to vary in an
amount greater than 20 per cent of average
production. The total amount of wheat consumed
as food varies but relatively little, and use as seed
is relatively constant.
The maintenance by government regulation of a

price for wheat undoubtedly can be accomplished
as effectively by sustaining or increasing the
demand as by limiting the supply. The effect of the
statute before us is to restrict the amount which
may be produced for market and the extent as
well to which one may forestall resort to the
market by producing to meet his own needs. That
appellee’s own contribution to the demand for
wheat may be trivial by itself is not enough to
remove him from the scope of federal regulation
where, as here, his contribution, taken together
with that of many other similarly situated, is far
from trivial.
It is well established by decisions of this Court

that the power to regulate commerce includes the
power to regulate the prices at which commodities
in that commerce are dealt in and practices
affecting such prices. One of the primary purposes
of the Act in question was to increase the market
price of wheat, and to that end to limit the volume
thereof that could affect the market. It can hardly
be denied that a factor of such volume and
variability as home-consumed wheat would have a
substantial influence on price and market
conditions. This may arise because being in
marketable condition such wheat overhangs the
market and, if induced by rising prices, tends to
flow into the market and check price increases.
But if we assume that it is never marketed, it
supplies a need of the man who grew it which
would otherwise be reflected by purchases in the
open market. Homegrown wheat in this sense
competes with wheat in commerce. The
stimulation of commerce is a use of the regulatory
function quite as definitely as prohibitions or
restrictions thereon. This record leaves us in no
doubt that Congress may properly have
considered that wheat consumed on the farm
where grown, if wholly outside the scheme of
regulation, would have a substantial effect in
defeating and obstructing its purpose to stimulate
trade therein at increased prices. . . .
Reversed.
The Era of Expansive Commerce

Clause Jurisprudence
With the Darby and Wickard decisions, the Court
entered a new era of commerce clause
interpretation. The justices no longer considered
relevant issues such as direct versus indirect effects,
manufacturing/production versus distribution, or
stream of commerce concerns. They made clear, as
Stone wrote in Darby, that “[t]he power of Congress
over interstate commerce is not confined to the
regulation of commerce among the states. It extends
to those activities intrastate which so affect
interstate commerce or the exercise of the power of
Congress over it as to make regulation of them
appropriate means to the attainment of a legitimate
end, the exercise of the granted power of Congress
to regulate interstate commerce.”
Why would the Court allow Congress to regulate

activities that were purely local in nature when the
commerce clause speaks only of activities “among
the several States”? Stone’s invocation of the
language of McCulloch provides the answer. For
Congress to regulate the interstate activities, it may
be “necessary and proper” for it to regulate the local
activities. This, according to Stone, was the case in
Darby, and according to Jackson it held in Wickard,
too. If every farmer acted as Filburn did, it would
affect demand for wheat, which, in turn, would have
a substantial effect in “defeating and obstructing”
the congressional regulatory scheme of stabilizing
prices. As Jackson put it, that Filburn’s “own
contribution to the demand for wheat may be trivial
by itself is not enough to remove him from the scope
of federal regulation where, as here, his
contribution, taken together with that of many other
similarly situated, is far from trivial.” Under this
approach very little commercial activity could be
defined as purely intrastate. For, as Darby, Wickard,
and the commerce clause cases to come in the 1960s
and 1970s suggest, as long as the local activities are
part of a class of activities that Congress decides in
the aggregate have a substantial effect on interstate
commerce, Congress may regulate. Finally, as our
emphasis on “Congress decides” suggests, no longer
would the Court decide whether the local activities,
taken in the aggregate, substantially affect interstate
commerce in fact, but only whether Congress
reasonably thinks it does (or whether it has a
“rational basis” for so concluding, as more-modern
Courts have termed it). This approach sat
comfortably with the Court’s new approach to
economic legislation, whether passed by Congress or
by the states (see Chapter 10).
Note too Darby’s return to the Court’s approach in

Gibbons, that the power of Congress over interstate
commerce “is complete in itself, may be exercised to
its utmost extent, and acknowledges no limitations
other than are prescribed in the constitution.” To the
Darby Court, Congress was free to use its commerce
power as a federal police power, excluding from
“commerce articles whose use in the states for
which they are destined it may conceive to be
injurious to the public health, morals or welfare.” A
law falling into this category, as Stone wrote, is “not
a forbidden invasion of state power merely because
either its motive or its consequence is to restrict the
use of articles of commerce within the states of
destination, and is not prohibited unless by other
Constitutional provisions.” But, to Stone, other
“constitutional provisions” do not include the Tenth
Amendment. In contrast to the Court’s approach in
Hammer, the Tenth Amendment is not an enclave to
which the litigants can turn when Congress is
making constitutional use of its commerce power; it
is but a “truism.”
Taken together, these cases gave Congress

substantial authority to regulate under the
commerce clause without fear of the Court
invalidating its legislation. Congress took great
advantage of this new deference by enacting a vast
number of laws that earlier Courts might have
considered outside the definition of interstate
commerce and thus federal purview.
Many of these were in the economic realm, but with

the expansive definition of interstate commerce that
occurred after 1937 came a commensurate
expansion of the federal police powers. These
changes gave Congress sufficient power to combat
social problems that it otherwise would have been
unable to fight effectively.
Modern civil rights laws provide a good example.

The constitutional protections against discrimination
are found primarily in the equal protection clause of
the Fourteenth Amendment and the due process
clause of the Fifth, which have erected powerful
barriers against invidious discrimination. But their
exclusive target is discrimination perpetuated by the
government. The words of the Fourteenth
Amendment are clear: “Nor shall any state . . . deny
to any person within its jurisdiction the equal
protection of the laws.” Nothing in the Fifth or
Fourteenth Amendments prohibits discrimination by
private parties. These amendments were not
intended to prohibit a private citizen from being
discriminatory, but only to bar discriminatory
government action. Although the Fourteenth
Amendment includes a clause giving Congress the
authority to enforce the provision with appropriate
legislation, the Supreme Court has ruled that such
enforcement legislation may not extend beyond the
scope of the amendment itself. Consequently, the
amendment does not empower Congress to regulate
private discriminatory behavior.
When the civil rights activists of the 1950s and

1960s campaigned for the elimination of
discriminatory conditions, high on their list was the
eradication of discrimination by private parties who
operated public accommodations. The movement
targeted the owners of hotels, restaurants, movie
theaters, recreation areas, and transportation
systems. With the decision in Brown v. Board of
Education (1954), governments could no longer
maintain laws mandating segregation of such
facilities, but private operators could still impose
discrimination on their own. In the South, where
segregation was the way of life, no one expected the
states to pass civil rights statutes prohibiting private
parties from discriminating. Therefore, civil rights
advocates pressured Congress to act.
Congress responded by enacting the Civil Rights Act

of 1964, the most comprehensive legislation of its
type ever passed. The act, as amended, is still the
nation’s strongest statute aimed at eliminating
discrimination. The primary authority for passing
this groundbreaking legislation, however, was not a
clause in the Bill of Rights or one of the Civil War
amendments, but the commerce clause. Because the
Court had treated commerce clause legislation
favorably since 1937, members of Congress had
confidence that the Civil Rights Act would withstand
a legal challenge. Opponents of the legislation
argued that Congress had misused its power to
regulate commerce by invoking it to justify a civil
rights law. Obviously, they said, the framers, many of
whom owned slaves, did not intend the power to
regulate commerce among the states to be used to
enact civil rights legislation.
Was Congress on solid ground in doing so? The

primary test of the law’s constitutionality was Heart
of Atlanta Motel, Inc. v. United States (1964). As you
read this case, note Justice Tom C. Clark’s
description of how racial discrimination has a
negative impact on interstate commerce. Also note
the Court’s expansive view of interstate commerce
and its conclusion that the commerce clause can be
used to combat moral wrongs.
Heart of Atlanta Motel, Inc. v. United States 379

U.S. 241 (1964)
court/379/241.html
Vote: 9 (Black, Brennan, Clark, Douglas, Goldberg,

Harlan, Stewart, Warren, White)
OPINION OF THE COURT: Clark

CONCURRING OPINIONS: Black, Douglas,
Goldberg
Facts:
Title II of the 1964 Civil Rights Act in its original
form prohibited discrimination on the basis of
race, color, religion, or national origin by certain
public accommodations that operated in or
affected interstate commerce. The
accommodations specifically included were as
follows:
1. Inns, hotels, motels, or other lodging facilities

of five rooms or more. Because they served the
traveling public, these facilities were
considered part of interstate commerce by
definition.
2. Restaurants and cafeterias, if they served
interstate travelers or if a substantial portion of
their food or other products had moved in
3. Motion picture houses, if they presented films
that had moved in interstate commerce.
4. Any facility physically located within any of the
other covered accommodations, which
included operations such as hotel shops and
theater snack bars.
The Heart of Atlanta Motel was a 216-room facility

in Atlanta, Georgia, owned by a group of investors
led by Moreton Rolleston Jr. Located near the
commercial center of the city, it had easy access to
two interstate highways and two major state
roads. The motel advertised for business in
national publications and maintained more than
fifty billboards and highway signs around the
state. Both the government and the motel agreed
that the facility met the act’s definition of a public
accommodation in interstate commerce.
The motel admitted that prior to the enactment of

the civil rights law it practiced a policy of racial
discrimination. Furthermore, it acknowledged that
it intended to continue its policy of not serving
African Americans. To secure its right to do so, the
motel filed suit to have the 1964 Civil Rights Act
declared unconstitutional.
Arguments:
For the appellant, Heart of Atlanta
Motel, Inc.:
The Court should not construe the Constitution
in the way it thinks the framers of the
Constitution, if living, would today. The Court
should construe the Constitution in accord with
the intentions of the framers at the time it was
drawn and with the intentions of those who
adopted it at the time.
The framers’ intentions were clear: to limit the
powers of the federal government to those
delegated in the Constitution with all others
reserved to the states. If the Court allows this
broad use of commerce power, there is no limit
on Congress. It can regulate every person and
every business as it sees fit.
Congress has not even established any
standards to determine if a motel is in or
materially affects interstate commerce. It
might just as well have confiscated all motels
and nationalized them on the ground that they
are in interstate commerce.
For the appellees, United States

et al.:
Based on the Court’s decision in NLRB v. Jones
& Laughlin Steel Corporation, Congress has the
power to regulate local activities that might
have a substantial and harmful effect on
interstate commerce. Based on Wickard v.
Filburn, the effect on commerce need not be
determined solely by the effect on the parties
to the litigation. Congress (and the Court) may
consider whether the party’s contribution,
aggregated with others similarly situated, will
have an adverse effect on commerce.
As Champion v. Ames makes clear, Congress,
in exercising its power to foster interstate
commerce, may touch on subjects of social or
moral wrong, in addition to their adverse
economic effects.
Congress’s fact-finding shows that, under these
precedents, Title II is a valid exercise of
Congress’s power to regulate interstate
commerce. Discrimination in public
accommodations imposes a burden on
movement in interstate commerce, and
discrimination in hotels and motels serving
transient guests imposes burdens on interstate
travel.
Race discrimination is not only a social and
moral issue but also a national and economic
issue. Testimony shows that because African
Americans may be forced to find lodging in
places far removed from their route of travel
due to discrimination by hotels, the number of
persons engaging in interstate travel is
diminished.
Mr. Justice Clark Delivered the Opinion of the

Court.
The Basis of Congressional

Action.
While the Act as adopted carried no congressional
findings the record of its passage through each
house is replete with evidence of the burdens that
discrimination by race or color places upon
interstate commerce. This testimony included the
fact that our people have become increasingly
mobile with millions of people of all races
traveling from State to State; that Negroes in
particular have been the subject of discrimination
in transient accommodations, having to travel
great distances to secure the same; that often they
have been unable to obtain accommodations and
have had to call upon friends to put them up
overnight; and that these conditions had become
so acute as to require the listing of available
lodging for Negroes in a special guidebook which
was itself “dramatic testimony to the difficulties”
Negroes encounter in travel. These exclusionary
practices were found to be nationwide, the Under
Secretary of Commerce testifying that there is “no
question that this discrimination in the North still
exists to a large degree” and in the West and
Midwest as well. This testimony indicated a
qualitative as well as a quantitative effect on
interstate travel by Negroes. The former was the
obvious impairment of the Negro traveler’s
pleasure and convenience that resulted when he
continually was uncertain of finding lodging. As
for the latter, there was evidence that this
uncertainty stemming from racial discrimination
had the effect of discouraging travel on the part of
a substantial portion of the Negro community. This
was the conclusion not only of the Under
Secretary of Commerce but also of the
Administrator of the Federal Aviation Agency who
wrote the Chairman of the Senate Commerce
Committee that it was his “belief that air
commerce is adversely affected by the denial to a
substantial segment of the traveling public of
adequate and desegregated public
accommodations.” We shall not burden this
opinion with further details since the voluminous
testimony presents overwhelming evidence that
discrimination by hotels and motels impedes
interstate travel.
The Power of Congress over
Interstate Travel.
The power of Congress to deal with these
obstructions depends on the meaning of the
Commerce Clause. Its meaning was first
enunciated 140 years ago by the great Chief
Justice John Marshall in Gibbons v. Ogden (1824),
in these words:
“The subject to be regulated is commerce; and

. . . to ascertain the extent of the power, it
becomes necessary to settle the meaning of
the word. The counsel for the appellee would
limit it to traffic, to buying and selling, or the
interchange of commodities . . . but it is
something more: it is intercourse . . . between
nations, and parts of nations, in all its
branches, and is regulated by prescribing
rules for carrying on that intercourse.
“To what commerce does this power extend?

The constitution informs us, to commerce
‘with foreign nations and among the several
States, and with the Indian tribes.’
“It has, we believe, been universally admitted,

that these words comprehend every species of
commercial intercourse. . . .No sort of trade
can be carried on . . . to which this power does
not extend.
“The subject to which the power is next

applied, is to commerce ‘among the several
States.’ The word ‘among’ means
intermingled.” . . .
In short, the determinative test of the exercise of

power by the Congress under the Commerce
Clause is simply whether the activity sought to be
regulated is “commerce which concerns more
States than one” and has a real and substantial
relation to the national interest. Let us now turn to
this facet of the problem.
That the “intercourse” of which the Chief Justice

spoke included the movement of persons through
more States than one was settled as early as 1849,
in the Passenger Cases, where Mr. Justice McLean
stated: “That the transportation of passengers is a
part of commerce is not now an open question.”
Again in 1913 Mr. Justice McKenna, speaking for
the Court, said: “Commerce among the States, we
have said, consists of intercourse and traffic
between their citizens, and includes the
transportation of persons and property. . . .Nor
does it make any difference whether the
transportation is commercial in character.” . . .
The same interest in protecting interstate

commerce which led Congress to deal with
segregation in interstate carriers and the white-
slave traffic has prompted it to extend the exercise
of its power to gambling; to criminal enterprises;
to deceptive practices in the sale of products; to
fraudulent security transactions; to misbranding
of drugs; to wages and hours; to members of labor
unions; to crop control; to discrimination against
shippers; to the protection of small business from
injurious price cutting; to resale price
maintenance; to professional football; and to racial
discrimination by owners and managers of
terminal restaurants.
That Congress was legislating against moral

wrongs in many of these areas rendered its
enactments no less valid. In framing Title II of this
Act Congress was also dealing with what it
considered a moral problem. But that fact does
not detract from the overwhelming evidence of the
disruptive effect that racial discrimination has had
on commercial intercourse. It was this burden
which empowered Congress to enact appropriate
legislation, and, given this basis for the exercise of
its power, Congress was not restricted by the fact
that the particular obstruction to interstate
commerce with which it was dealing was also
deemed a moral and social wrong.
It is said that the operation of the motel here is of

a purely local character. But . . . the power of
Congress to promote interstate commerce also
includes the power to regulate the local incidents
thereof, including local activities in both the
States of origin and destination, which might have
a substantial and harmful effect upon that
commerce. One need only examine the evidence
which we have discussed above to see that
Congress may—as it has—prohibit racial
discrimination by motels serving travelers,
however “local” their operations may appear. . . .
We, therefore, conclude that the action of the

Congress in the adoption of the Act as applied
here to a motel which concededly serves interstate
travelers is within the power granted it by the
Commerce Clause of the Constitution, as
interpreted by this Court for 140 years. It may be
argued that Congress could have pursued other
methods to eliminate the obstructions it found in
interstate commerce caused by racial
discrimination. But this is a matter of policy that
rests entirely with the Congress not with the
courts. How obstructions in commerce may be
removed—what means are to be employed—is
within the sound and exclusive discretion of the
Congress. It is subject only to one caveat—that the
means chosen by it must be reasonably adapted to
the end permitted by the Constitution. We cannot
say that its choice here was not so adapted. The
Constitution requires no more.
Affirmed.
Employing the same sweeping language as the Court

used in Wickard and especially Darby, Justice Clark’s
opinion gave Congress broad powers to use the
commerce clause as authority to regulate moral
wrongs that occur in interstate commerce. The
Heart of Atlanta Motel complied with the Court’s
decision (see Box 7-7), and a new era of civil rights
in public accommodations began. The Court’s
interpretation of the commerce clause turned that
provision into one of the most powerful weapons in
the federal government’s regulatory arsenal.
Although this broad interpretation of Congress’s

regulatory powers under the commerce clause had
become generally accepted, it is important to note
that, even in the 1960s and 1970s, individual justices
occasionally expressed doubts about the
expansiveness of the modern definitions of interstate
commerce. An example is Hugo Black’s reaction to
the Court’s decision in Daniel v. Paul (1969). At
issue was the application of federal regulations to
the Lake Nixon Club, a small recreational facility
located in a rural area of Arkansas on county roads
far from any interstate highway. To avoid having to
comply with desegregation laws, owner Euell Paul
operated it as a private club, charging a nominal
membership fee of twenty-five cents for participation
in activities such as swimming, dancing, picnicking,
and boating. The club served a local clientele: there
was no evidence that any interstate traveler had
ever used it. The Court ruled that the club operated
in interstate commerce for the following reasons: (1)
it advertised for business in publications known to
be read by some interstate travelers; (2) it leased
fifteen paddleboats from an Oklahoma company; (3)
it owned a jukebox and records that, while
purchased from an Arkansas company, had been
manufactured out of state; and (4) three out of the
four items sold at the snack bar (e.g., bread and soft
drinks) contained ingredients from out of state.
This reasoning was too much for Justice Black.

Although he opposed the racial policies of the club,
Black refused to accept the conclusion that this
“sleepy hollow” was engaged in interstate
commerce. The Court’s decision, he argued, was
“stretching the Commerce Clause so as to give the
Federal Government complete control over every
little remote country place of recreation in every
nook and cranny of every precinct and county in
every one of the 50 states. This goes too far for me.”
His dissent was ironic given that Black was the first
of the ardent New Deal justices.
Justice Potter Stewart had a similar reaction in

Perez v. United States (1971). This case involved
the Consumer Credit Protection Act, which Congress
passed under its commerce clause power to
criminalize extortionate means to collect payments
on loans. Congress based its use of the commerce
clause on its conclusion that “loan sharks”—lenders
who use threats of violence to ensure the repayment
of loans—are in a class largely controlled by
organized crime, which exerts an adverse effect on
interstate commerce. Alcides Perez was convicted
under the act for attempting to extort money from
the owner of a butcher shop. Perez challenged the
law, claiming that Congress may not use its
commerce power to regulate purely local loan-
sharking.
Box 7-7 Aftermath . . . Heart of Atlanta Motel
THE HEART OF ATLANTA MOTEL, built in 1956,

was owned by a group of Atlanta investors. One of
the co-owners was Moreton Rolleston Jr., a former
lieutenant commander in the U.S. Navy and a
longtime Atlanta lawyer. Rolleston was a strong
supporter of racial segregation. It was no
coincidence, therefore, that the Heart of Atlanta
Motel refused to serve black customers and that
the motel did not cooperate with a consortium of
fourteen downtown hotels whose owners agreed
in 1963 to accommodate conventions that
included blacks.
When it appeared certain that Congress would

pass the 1964 Civil Rights Act, Rolleston, who also
served as the motel’s attorney, prepared a lawsuit
to challenge its constitutionality. He filed the suit
just two hours after President Lyndon Johnson
signed the bill into law.
Moreton Rolleston Jr.
Leviton-Atlanta:Jay
In August 1964, after losing in the district court,

the owners complied with the court’s ruling and
began operating the motel on an integrated basis.
At the same time, they pressed an appeal to the
U.S. Supreme Court. Rolleston, arguing before the
justices, claimed that the Civil Rights Act was an
unconstitutional intrusion by the federal
government into an area reserved to the states
and a violation of the rights of business owners.
When the Supreme Court unanimously upheld the
law on December 14, 1964, Rolleston lamented,
“The decision opens the frightful door to unlimited
power of a centralized government in Washington,
in which the individual citizen and his personal
liberty are of no importance.”
Several years later Rolleston bought out his fellow

investors and became the motel’s sole owner. In
1973 the motel was sold and razed. A large,
modern hotel now occupies the land where the
Heart of Atlanta Motel once stood.
Rolleston continued to practice law in Atlanta well

into his eighties. In 2000 he was briefly a
Republican candidate for the U.S. Senate. Seven
years later, the Georgia Supreme Court disbarred
the eighty-nine-year-old Rolleston for abusing the
legal process by excessive litigation in a property
dispute that was ongoing for more than two
decades. The legal battle included Rolleston’s
attempts to stop film producer and actor Tyler
Perry from building a 30,000-square-foot mansion
on a seventeen-acre riverfront parcel of land that
Rolleston claimed to own, a claim that the courts
repeatedly rejected. In addition, Rolleston lost a
$5.4 million malpractice ruling in 1995, and he
suffered a $4.1 million judgment in 1998. In
defiance of the disbarment action, Rolleston
pledged to continue practicing law.
Rolleston died on August 19, 2013, at the age of
ninety-five.
Sources: Richard C. Cortner, Civil Rights and

Public Accommodations: The Heart of Atlanta
Motel and McClung Cases (Lawrence: University
Press of Kansas, 2001); Atlanta Journal-
Constitution, May 14, 1991; May 16, 1991;
December 25, 1991; March 23, 1995; February 8,
1996; March 5, 1998; August 8, 2000; October 10,
2007; October 24, 2007; burial records, Arlington
Memorial Park, Sandy Springs, Georgia.
The Supreme Court disagreed. Writing for a majority

of eight, Justice William O. Douglas began by setting
out his understanding of what the Court had said
about the reach of the commerce clause:
The Commerce Clause reaches, in the main,

three categories of problems. First, the use of
channels of interstate or foreign commerce
which Congress deems are being misused.
Second, protection of the instrumentalities of
interstate commerce. Third, those activities
affecting commerce. It is with this last category
that we are here concerned.
By “channels . . . being misused,” Douglas meant, for

example, using airline routes to ship stolen goods or
interstate highways to transport people who have
been kidnapped. (Champion v. Ames provides
another example.) The “instrumentalities” of
interstate commerce follow from, among other
cases, the Shreveport Rate Case and include things
(or even persons) that move in the channels of
interstate commerce. Neither of these ideas is
especially controversial.19 Even in E. C. Knight the
Court held that “transportation and its
instrumentalities” are appropriate subjects of the
commerce power.
19 As Justice Antonin Scalia wrote in Gonzales v.

Raich (2005), “The first two categories are self-
evident, since they are the ingredients of interstate
commerce itself. See Gibbons v. Ogden (1824).”
The chief concerns in Perez, as in so many cases, are

raised by Douglas’s last category. How do we know
whether an activity that seems local, such as the
activity at issue here, affects commerce? For
Douglas, the answer lay in the Court’s post–New
Deal decisions in NLRB v. Jones & Laughlin Steel,
Wickard v. Filburn, and United States v. Darby:
Congress had concluded that loan-sharking,
although a purely local activity, had, by virtue of
being part of a “class of activities,” a substantial
effect on interstate commerce, and that was enough
to sustain the law.
Justice Stewart cast the lone dissent in the case. He

agreed that Congress can use its commerce clause
power to protect the instrumentalities and channels
of commerce and to regulate intrastate activities
that have a substantial effect on interstate
commerce. But, echoing Black in Daniel v. Paul, he
was concerned that under this law “a man can be
convicted without any proof of interstate movement,
of the use of the facilities of interstate commerce, or
of facts showing that his conduct affected interstate
commerce.” He continued, “The Framers of the
Constitution never intended that the National
Government might define as a crime and prosecute
such wholly local activity through the enactment of
federal criminal laws.” This power, in Stewart’s view,
belonged to the states unless Congress could
“rationally have concluded that loan-sharking is an
activity with interstate attributes that distinguish it
in some substantial respect from other local crime.”
In short, it was not enough for Stewart to say simply
that loan-sharking has some interstate
characteristics because “all crime is a national
problem” and Congress cannot regulate “all crime.”
Still, in spite of these occasional complaints that the

Court had erased the distinction between inter- and
intrastate commerce, the justices remained wedded
to a broad interpretation of the congressional
commerce power. The post–New Deal approach
reflects Justice Cardozo’s dissent in Carter v. Carter
Coal Company, in which he said the commerce
power is “as broad as the need that evokes it.”
Limits on the Commerce Power:

The Republican Court Era
As the nation entered the 1990s, commerce clause
jurisprudence seemed to be a settled matter. Since
the 1937 decision in NLRB v. Jones & Laughlin Steel
Corporation, the Court had persevered in its
commitment to cooperative federalism and loyalty to
an expansive view of the federal government’s
commerce powers. As late as 1985, the Court in
Garcia v. San Antonio Metropolitan Transit Authority
(SAMTA) (excerpted in Chapter 6) had made a major
statement supportive of continuing in this vein.
Under the surface, however, the prospects for

change were mounting. The Court’s vote in Garcia
was 5–4 and, therefore, vulnerable to the impact of
personnel changes. The four justices who dissented
in Garcia were all Republican appointees, and the
nation had turned decidedly in the direction of the
Republicans by electing presidents of that party in
three successive elections (1980, 1984, and 1988).
Republican President Ronald Reagan had the
opportunity to appoint four new justices to the Court
and George H. W. Bush added two more. The most
consequential of those appointments was Bush’s
1991 selection of conservative justice Clarence
Thomas to replace the retiring Thurgood Marshall, a
member of the Garcia majority. This appointment
tipped the scales in favor of justices who were
sympathetic to the interests of the states and less
supportive of expansive federal regulation. Table 7-1
illustrates the effect of those personnel changes,
beginning with the decision in Garcia and continuing
over six subsequent major federalism/commerce
decisions through 2012.
The first indication that the balance of power had

shifted occurred in New York v. United States
(1992), just one year after the appointment of Justice
Thomas. You may recall from our reading of that
case in Chapter 6 that the majority struck down a
federal law that mandated that states adopt a
particular radioactive waste policy. The justices held
that the Constitution does not allow the federal
government to command the states to pass
legislation to implement federally preferred policies.
The Court’s decision in New York signaled that those
sympathetic to preserving the traditional role of the
states now formed a majority.
Table 7-1Garcia
Note: Justices whose names appear in bold generally
support a more expansive view of the commerce power
than do those whose names are in plain font. Justices
whose names are underlined were in the majority.
Arrows indicate personnel changes. Votes in Sebelius
are classified on the basis of the Commerce Clause
portion of the decision. R = Republican appointee; D =
Democratic appointee.
Even so, the Court’s decision in United States v.

Lopez (1995) came as somewhat of a surprise. For
the first time since the battles over the New Deal,
the justices invalidated a federal statute as falling
outside the authority granted to Congress by the
commerce clause.20 In addition to explaining the
rationale for this outcome, Chief Justice Rehnquist’s
majority opinion nicely reviews the evolution of the
Court’s commerce clause doctrine.
20 Keep in mind that in National League of Cities

v. Usery (1976) and New York v. United States
(1992) the Court invalidated the federal laws not
because they were beyond Congress’s power to
regulate interstate commerce but because they
violated the Tenth Amendment.
United States v. Lopez 514 U.S. 549 (1995)
court/514/549.html

Thomas)

CONCURRING OPINIONS: Kennedy,
Thomas
DISSENTING OPINIONS: Breyer, Souter,
Stevens
Facts:
On March 10, 1992, Alfonso Lopez Jr. came to
Edison High School carrying a concealed .38
caliber handgun and five rounds of ammunition.
Acting on an anonymous tip, officials at the San
Antonio school confronted the twelfth-grade
student, and he admitted to having the weapon.
Lopez claimed that he had been given the gun by
an individual who instructed him to deliver it to a
third person. The gun was to be used in gang-
related activities. Lopez was arrested for violating
the federal Gun-Free School Zones Act of 1990.
Lopez, who had no record of previous criminal

activity, was convicted in federal district court and
sentenced to six months in prison, two years of
supervised release, and a $50 fine. His attorneys
appealed to the Fifth Circuit Court of Appeals,
claiming that Congress had no constitutional
authority to pass the Gun-Free School Zones Act.
Attorneys for the United States countered by
arguing that the law was an appropriate exercise
of congressional power to regulate interstate
commerce. The appeals court held in favor of
Lopez, and the government asked the Supreme
Court to review that ruling.
Congress passed the Gun-Free School Zones Act—

section 922(q) of chapter 18 of the United States
Code—in 1990. In passing the act, Congress did
not issue any findings showing a relationship
between gun possession on school property and
commerce. The federal government argued that
such findings should not be required, that it would
be sufficient if Congress could reasonably
conclude that gun-related violence in schools
affects interstate commerce directly or indirectly.
Lopez argued that the simple possession of a
weapon on school grounds is not a commercial
activity that reasonably falls under commerce
clause jurisdiction. Furthermore, the regulation of
crime and education are traditional areas of state,
not federal, jurisdiction.
Arguments:
Under the commerce clause and based on past
decisions, Congress is empowered to regulate
even intrastate, noneconomic activity that, in
the aggregate, exerts a substantial impact on
All Congress must show is that it could
rationally have concluded that gun possession
on or near school premises affects interstate
commerce.
There is an abundant basis from which
Congress could reasonably determine that the
conduct regulated in the law affects interstate
commerce. For example, the need for
insurance spreads the economic consequences
of violent crime throughout the nation. In
addition, violent crime affects interstate
commerce by reducing the willingness of
people to travel to areas they think are unsafe.
Congress also had grounds for concluding that
the presence of guns in schools poses an
unacceptable threat to the proper functioning
of primary and secondary education. For the
last decade or so, the importance of education
to national productivity and economic
competitiveness was the subject of extensive
national concern and debate.
For the respondent, Alfonso

Lopez Jr.:
Under the Supreme Court’s decision in Perez v.
United States (1971), congressional jurisdiction
under the commerce clause reaches, in the
main, three categories; (1) the use of channels
of interstate or foreign commerce; (2)
protection of the instrumentalities of interstate
commerce; and (3) those activities affecting
interstate commerce. This case involves only
the third Perez category.
Congress must demonstrate a substantial link
between the object of its regulation and
interstate commerce. Here, Congress failed to
provide any link between interstate commerce
and possession of a firearm.
Even if the Court finds that Congress need not
have made formal or informal findings or even
have concrete evidence of an effect on
commerce when passing the Gun-Free School
Zones Act, the act is still unconstitutional. In
Gibbons, Chief Justice Marshall recognized that
Congress’s power under the commerce clause
does not extend to “exclusively internal
commerce of a State.” The power to regulate
commerce, however broad, is not unlimited.
Because it regulates internal, noneconomic
activity without a substantial connection to
interstate commerce, the Gun-Free School
Zones Act exceeds those limits.

of the Court.
In the Gun-Free School Zones Act of 1990,

Congress made it a federal offense “for any
individual knowingly to possess a firearm at a
place that the individual knows, or has reasonable
cause to believe, is a school zone.” The Act neither
regulates a commercial activity nor contains a
requirement that the possession be connected in
any way to interstate commerce. We hold that the
Act exceeds the authority of Congress “[t]o
regulate Commerce . . . among the several
States.” . . .
We start with first principles. The Constitution

creates a Federal Government of enumerated
powers. As James Madison wrote, “[t]he powers
delegated by the proposed Constitution to the
federal government are few and defined. Those
which are to remain in the State governments are
numerous and indefinite.” This constitutionally
mandated division of authority “was adopted by
the Framers to ensure protection of our
fundamental liberties.” Gregory v. Ashcroft (1991).
...
. . . The Court, through Chief Justice Marshall,

first defined the nature of Congress’ commerce
power in Gibbons v. Ogden (1824):
“Commerce, undoubtedly, is traffic, but it is

something more: it is intercourse. It describes
the commercial intercourse between nations,
and parts of nations, in all its branches, and is
regulated by prescribing rules for carrying on
that intercourse.”
The commerce power “is the power to regulate;

that is, to prescribe the rule by which commerce is
to be governed. This power, like all others vested
in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges
no limitations, other than are prescribed in the
constitution.” Id. . . .
For nearly a century thereafter, the Court’s

Commerce Clause decisions dealt but rarely with
the extent of Congress’ power, and almost entirely
with the Commerce Clause as a limit on state
legislation that discriminated against interstate
commerce. . . .Under this line of precedent, the
Court held that certain categories of activity such
as “production,” “manufacturing,” and “mining”
were within the province of state governments,
and thus were beyond the power of Congress
under the Commerce Clause. See Wickard v.
Filburn (1942) (describing development of
Commerce Clause jurisprudence).
In 1887, Congress enacted the Interstate

Commerce Act, and in 1890, Congress enacted the
Sherman Antitrust Act. These laws ushered in a
new era of federal regulation under the commerce
power. When cases involving these laws first
reached this Court, we imported from our
negative Commerce Clause cases the approach
that Congress could not regulate activities such as
“production,” “manufacturing,” and “mining.” See,
e.g., United States v. E. C. Knight Co. (1895);
Carter v. Carter Coal Co. (1936). Simultaneously,
however, the Court held that, where the interstate
and intrastate aspects of commerce were so
mingled together that full regulation of interstate
commerce required incidental regulation of
intrastate commerce, the Commerce Clause
authorized such regulation. See, e.g., Houston, E.
& W. T. R. Co. v. United States (1914) (Shreveport
Rate Cases).
In A. L. A. Schechter Poultry Corp. v. United

States (1935), the Court struck down regulations
that fixed the hours and wages of individuals
employed by an intrastate business because the
activity being regulated related to interstate
commerce only indirectly. In doing so, the Court
characterized the distinction between direct and
indirect effects of intrastate transactions upon
interstate commerce as “a fundamental one,
essential to the maintenance of our constitutional
system.” Activities that affected interstate
commerce directly were within Congress’ power;
activities that affected interstate commerce
indirectly were beyond Congress’ reach. The
justification for this formal distinction was rooted
in the fear that otherwise “there would be
virtually no limit to the federal power and for all
practical purposes we should have a completely
centralized government.”
Two years later, in the watershed case of NLRB v.

Jones & Laughlin Steel Corp. (1937), the Court
upheld the National Labor Relations Act against a
Commerce Clause challenge, and in the process,
departed from the distinction between “direct”
and “indirect” effects on interstate commerce. The
Court held that intrastate activities that “have
such a close and substantial relation to interstate
commerce that their control is essential or
appropriate to protect that commerce from
burdens and obstructions” are within Congress’
power to regulate.
In United States v. Darby (1941), the Court upheld

the Fair Labor Standards Act, stating:
“The power of Congress over interstate

commerce is not confined to the regulation of
commerce among the states. It extends to
those activities intrastate which so affect
interstate commerce or the exercise of the
power of Congress over it as to make
regulation of them appropriate means to the
attainment of a legitimate end, the exercise of
the granted power of Congress to regulate
interstate commerce.”
In Wickard v. Filburn, the Court upheld the
application of amendments to the Agricultural
Adjustment Act of 1938 to the production and
consumption of homegrown wheat. The Wickard
Court explicitly rejected earlier distinctions
between direct and indirect effects on interstate
commerce, stating:
“[E]ven if appellee’s activity be local and

though it may not be regarded as commerce, it
may still, whatever its nature, be reached by
Congress if it exerts a substantial economic
effect on interstate commerce, and this
irrespective of whether such effect is what
might at some earlier time have been defined
as ‘direct’ or ‘indirect.’”
The Wickard Court emphasized that although

Filburn’s own contribution to the demand for
wheat may have been trivial by itself, that was not
“enough to remove him from the scope of federal
regulation where, as here, his contribution, taken
together with that of many others similarly
situated, is far from trivial.”
Jones & Laughlin Steel, Darby, and Wickard

ushered in an era of Commerce Clause
jurisprudence that greatly expanded the
previously defined authority of Congress under
that Clause. In part, this was a recognition of the
great changes that had occurred in the way
business was carried on in this country.
Enterprises that had once been local or at most
regional in nature had become national in scope.
But the doctrinal change also reflected a view that
earlier Commerce Clause cases artificially had
constrained the authority of Congress to regulate
But even these modern-era precedents which have

expanded congressional power under the
Commerce Clause confirm that this power is
subject to outer limits. In Jones & Laughlin Steel,
the Court warned that the scope of the interstate
commerce power “must be considered in the light
of our dual system of government and may not be
extended so as to embrace effects upon interstate
commerce so indirect and remote that to embrace
them, in view of our complex society, would
effectually obliterate the distinction between what
is national and what is local and create a
completely centralized government.” See also
Darby (Congress may regulate intrastate activity
that has a “substantial effect” on interstate
commerce); Wickard (Congress may regulate
activity that “exerts a substantial economic effect
on interstate commerce”). Since that time, the
Court has heeded that warning and undertaken to
decide whether a rational basis existed for
concluding that a regulated activity sufficiently
affected interstate commerce. . . .
Consistent with this structure, we have identified

three broad categories of activity that Congress
may regulate under its commerce power. First,
Congress may regulate the use of the channels of
interstate commerce. Second, Congress is
empowered to regulate and protect the
instrumentalities of interstate commerce, or
persons or things in interstate commerce, even
though the threat may come only from intrastate
activities. Finally, Congress’ commerce authority
includes the power to regulate those activities
having a substantial relation to interstate
commerce.
Within this final category, admittedly, our case law

has not been clear whether an activity must
“affect” or “substantially affect” interstate
commerce in order to be within Congress’ power
to regulate it under the Commerce Clause. We
conclude, consistent with the great weight of our
case law, that the proper test requires an analysis
of whether the regulated activity “substantially
affects” interstate commerce.
We now turn to consider the power of Congress, in

the light of this framework, to enact 922(q). The
first two categories of authority may be quickly
disposed of: 922(q) is not a regulation of the use of
the channels of interstate commerce, nor is it an
attempt to prohibit the interstate transportation of
a commodity through the channels of commerce;
nor can 922(q) be justified as a regulation by
which Congress has sought to protect an
instrumentality of interstate commerce or a thing
in interstate commerce. Thus, if 922(q) is to be
sustained, it must be under the third category as a
regulation of an activity that substantially affects
First, we have upheld a wide variety of

congressional Acts regulating intrastate economic
activity where we have concluded that the activity
substantially affected interstate commerce.
Examples include the regulation of intrastate coal
mining, intrastate extortionate credit transactions,
restaurants utilizing substantial interstate
supplies, inns and hotels catering to interstate
guests, and production and consumption of home-
grown wheat. These examples are by no means
exhaustive, but the pattern is clear. Where
economic activity substantially affects interstate
commerce, legislation regulating that activity will
be sustained. . . .
Section 922(q) is a criminal statute that by its

terms has nothing to do with “commerce” or any
sort of economic enterprise, however broadly one
might define those terms. Section 922(q) is not an
essential part of a larger regulation of economic
activity, in which the regulatory scheme could be
undercut unless the intrastate activity were
regulated. It cannot, therefore, be sustained under
our cases upholding regulations of activities that
arise out of or are connected with a commercial
transaction, which viewed in the aggregate,
substantially affects interstate commerce.
Second, 922(q) contains no jurisdictional element

which would ensure, through case-by-case inquiry,
that the firearm possession in question affects
interstate commerce. For example, in United
States v. Bass (1971), the Court interpreted
former 18 U.S.C. 1202(a), which made it a crime
for a felon to “receiv[e], posses[s], or transpor[t]
in commerce or affecting commerce . . . any
firearm.” The Court interpreted the possession
component of 1202(a) to require an additional
nexus to interstate commerce both because the
statute was ambiguous and because “unless
Congress conveys its purpose clearly, it will not be
deemed to have significantly changed the federal-
state balance.” . . . Unlike the statute in Bass,
922(q) has no express jurisdictional element which
might limit its reach to a discrete set of firearm
possessions that additionally have an explicit
connection with or effect on interstate commerce.
Although as part of our independent evaluation of

constitutionality under the Commerce Clause we
of course consider legislative findings, and indeed
even congressional committee findings, regarding
effect on interstate commerce, the Government
concedes that “[n]either the statute nor its
legislative history contain[s] express
congressional findings regarding the effects upon
interstate commerce of gun possession in a school
zone.” We agree with the Government that
Congress normally is not required to make formal
findings as to the substantial burdens that an
activity has on interstate commerce. But to the
extent that congressional findings would enable us
to evaluate the legislative judgment that the
activity in question substantially affected
interstate commerce, even though no such
substantial effect was visible to the naked eye,
they are lacking here. . . .
The Government’s essential contention, in fine, is

that we may determine here that 922(q) is valid
because possession of a firearm in a local school
zone does indeed substantially affect interstate
commerce. The Government argues that
possession of a firearm in a school zone may result
in violent crime and that violent crime can be
expected to affect the functioning of the national
economy in two ways. First, the costs of violent
crime are substantial, and, through the
mechanism of insurance, those costs are spread
throughout the population. Second, violent crime
reduces the willingness of individuals to travel to
areas within the country that are perceived to be
unsafe. The Government also argues that the
presence of guns in schools poses a substantial
threat to the educational process by threatening
the learning environment. A handicapped
educational process, in turn, will result in a less
productive citizenry. That, in turn, would have an
adverse effect on the Nation’s economic well-
being. As a result, the Government argues that
Congress could rationally have concluded that
922(q) substantially affects interstate commerce.
We pause to consider the implications of the

Government’s arguments. The Government
admits, under its “costs of crime” reasoning, that
Congress could regulate not only all violent crime,
but all activities that might lead to violent crime,
regardless of how tenuously they relate to
interstate commerce. Similarly, under the
Government’s “national productivity” reasoning,
Congress could regulate any activity that it found
was related to the economic productivity of
individual citizens: family law (including marriage,
divorce, and child custody), for example. Under
the theories that the Government presents in
support of 922(q), it is difficult to perceive any
limitation on federal power, even in areas such as
criminal law enforcement or education where
States historically have been sovereign. Thus, if
we were to accept the Government’s arguments,
we are hard-pressed to posit any activity by an
individual that Congress is without power to
regulate. . . .
Admittedly, a determination whether an intrastate

activity is commercial or noncommercial may in
some cases result in legal uncertainty. But, so long
as Congress’ authority is limited to those powers
enumerated in the Constitution, and so long as
those enumerated powers are interpreted as
having judicially enforceable outer limits,
congressional legislation under the Commerce
Clause always will engender “legal uncertainty.” . .
.
These are not precise formulations, and in the

nature of things they cannot be. But we think they
point the way to a correct decision of this case.
The possession of a gun in a local school zone is in
no sense an economic activity that might, through
repetition elsewhere, substantially affect any sort
of interstate commerce. Respondent was a local
student at a local school; there is no indication
that he had recently moved in interstate
commerce, and there is no requirement that his
possession of the firearm have any concrete tie to
To uphold the Government’s contentions here, we

would have to pile inference upon inference in a
manner that would bid fair to convert
congressional authority under the Commerce
Clause to a general police power of the sort
retained by the States. Admittedly, some of our
prior cases have taken long steps down that road,
giving great deference to congressional action.
The broad language in these opinions has
suggested the possibility of additional expansion,
but we decline here to proceed any further. To do
so would require us to conclude that the
Constitution’s enumeration of powers does not
presuppose something not enumerated, and that
there never will be a distinction between what is
truly national and what is truly local. This we are
unwilling to do. For the foregoing reasons the
judgment of the Court of Appeals is
Affirmed.

SOUTER, and JUSTICE
GINSBURG join, dissenting.
The issue in this case is whether the Commerce
Clause authorizes Congress to enact a statute that
makes it a crime to possess a gun in, or near, a
school. In my view, the statute falls well within the
scope of the commerce power as this Court has
understood that power over the last half-century.
In reaching this conclusion, I apply three basic

principles of Commerce Clause interpretation.
First, the power to “regulate Commerce . . .
among the several States” encompasses the power
to regulate local activities insofar as they
significantly affect interstate commerce. . . . I use
the word “significant” because the word
“substantial” implies a somewhat narrower power
than recent precedent suggests. But, to speak of
“substantial effect” rather than “significant effect”
would make no difference in this case.
Second, in determining whether a local activity

will likely have a significant effect upon interstate
commerce, a court must consider, not the effect of
an individual act (a single instance of gun
possession), but rather the cumulative effect of all
similar instances (i.e., the effect of all guns
possessed in or near schools).
Third, the Constitution requires us to judge the

connection between a regulated activity and
interstate commerce, not directly, but at one
remove. Courts must give Congress a degree of
leeway in determining the existence of a
significant factual connection between the
regulated activity and interstate commerce—both
because the Constitution delegates the commerce
power directly to Congress and because the
determination requires an empirical judgment of a
kind that a legislature is more likely than a court
to make with accuracy. The traditional words
“rational basis” capture this leeway. Thus, the
specific question before us, as the Court
recognizes, is not whether the “regulated activity
sufficiently affected interstate commerce,” but,
rather, whether Congress could have had “a
rational basis” for so concluding.
I recognize that we must judge this matter

independently. “[S]imply because Congress may
conclude that a particular activity substantially
affects interstate commerce does not necessarily
make it so.” And, I also recognize that Congress
did not write specific “interstate commerce”
findings into the law under which Lopez was
convicted. Nonetheless, as I have already noted,
the matter that we review independently (i.e.,
whether there is a “rational basis”) already has
considerable leeway built into it. And, the absence
of findings, at most, deprives a statute of the
benefit of some extra leeway. This extra deference,
in principle, might change the result in a close
case, though, in practice, it has not made a critical
legal difference. . . .
Applying these principles to the case at hand, we

must ask whether Congress could have had a
rational basis for finding a significant (or
substantial) connection between gun-related
school violence and interstate commerce. . . . As
long as one views the commerce connection, not
as a “technical legal conception,” but as “a
practical one,” Swift & Co. v. United States (1905),
the answer to this question must be yes. . . .
For one thing, reports, hearings, and other readily

available literature make clear that the problem of
guns in and around schools is widespread and
extremely serious. . . .Congress obviously could
have thought that guns and learning are mutually
exclusive. And, Congress could therefore have
found a substantial educational problem—teachers
unable to teach, students unable to learn—and
concluded that guns near schools contribute
substantially to the size and scope of that
problem.
Having found that guns in schools significantly

undermine the quality of education in our Nation’s
classrooms, Congress could also have found, given
the effect of education upon interstate and foreign
commerce, that gun-related violence in and
around schools is a commercial, as well as a
human, problem. Education, although far more
than a matter of economics, has long been
inextricably intertwined with the Nation’s
economy. . . .
In recent years the link between secondary

education and business has strengthened,
becoming both more direct and more important.
Scholars on the subject report that technological
changes and innovations in management
techniques have altered the nature of the
workplace so that more jobs now demand greater
educational skills. . . .
Increasing global competition also has made

primary and secondary education economically
more important. . . .Indeed, Congress has said,
when writing other statutes, that “functionally or
technologically illiterate” Americans in the work
force “erod[e]” our economic “standing in the
international marketplace,” and that “our Nation
is . . . paying the price of scientific and
technological illiteracy, with our productivity
declining, our industrial base ailing, and our
global competitiveness dwindling.”
Finally, there is evidence that, today more than

ever, many firms base their location decisions
upon the presence, or absence, of a work force
with a basic education. . . .
The economic links I have just sketched seem

fairly obvious. Why then is it not equally obvious,
in light of those links, that a widespread, serious,
and substantial physical threat to teaching and
learning also substantially threatens the
commerce to which that teaching and learning is
inextricably tied? That is to say, guns in the hands
of six percent of inner-city high school students
and gun-related violence throughout a city’s
schools must threaten the trade and commerce
that those schools support. The only question,
then, is whether the latter threat is (to use the
majority’s terminology) “substantial.” And, the
evidence of (1) the extent of the gun-related
violence problem, (2) the extent of the resulting
negative effect on classroom learning, and (3) the
extent of the consequent negative commercial
effects, when taken together, indicate a threat to
trade and commerce that is “substantial.” At the
very least, Congress could rationally have
concluded that the links are “substantial.”
Specifically, Congress could have found that gun-

related violence near the classroom poses a
serious economic threat (1) to consequently
inadequately educated workers who must endure
low paying jobs, and (2) to communities and
businesses that might (in today’s “information
society”) otherwise gain, from a well-educated
work force, an important commercial advantage,
of a kind that location near a railhead or harbor
provided in the past. . . .The violence related facts,
the educational facts, and the economic facts,
taken together, make this conclusion rational.
And, because under our case law, the sufficiency
of the constitutionally necessary Commerce
Clause link between a crime of violence and
interstate commerce turns simply upon size or
degree, those same facts make the statute
constitutional.
The majority’s holding—that 922 falls outside the

scope of the Commerce Clause—creates three
serious legal problems. First, the majority’s
holding runs contrary to modern Supreme Court
cases that have upheld congressional actions
despite connections to interstate or foreign
commerce that are less significant than the effect
of school violence. . . .
The second legal problem the Court creates comes

from its apparent belief that it can reconcile its
holding with earlier cases by making a critical
distinction between “commercial” and
noncommercial “transaction[s].” That is to say, the
Court believes the Constitution would distinguish
between two local activities, each of which has an
identical effect upon interstate commerce, if one,
but not the other, is “commercial” in nature. . . .
The third legal problem created by the Court’s

holding is that it threatens legal uncertainty in an
area of law that, until this case, seemed
reasonably well settled. . . .
In sum, to find this legislation within the scope of

the Commerce Clause would permit “Congress . . .
to act in terms of economic . . . realities.” . . .
Upholding this legislation would do no more than
simply recognize that Congress had a “rational
basis” for finding a significant connection between
guns in or near schools and (through their effect
on education) the interstate and foreign commerce
they threaten. For these reasons, I would reverse
the judgment of the Court of Appeals.
Respectfully, I dissent.
Just how far-reaching was United States v. Lopez?

How did it fit into the Court’s evolving commerce
clause jurisprudence? Some commentators
interpreted it quite narrowly, simply as a warning to
Congress that it must justify its legislation by
showing the relationship between the activities
regulated and interstate commerce. Had Congress
explicitly demonstrated that it was responding to the
negative impact school violence has on the economy,
they asserted, it is likely that the Court would have
found no fault with the law. These commentators saw
the decision as little more than a detour and not a
full-scale retreat from the body of commerce clause
jurisprudence that flows almost seamlessly from
NLRB v. Jones & Laughlin Steel Corporation onward
(the Tenth Amendment cases of National League of
Cities v. Usery [1976] and New York v. United
States [1992] being the chief exceptions).
Others viewed the decision as more sweeping, and

as a signal that the Court would no longer allow
Congress to regulate whatever it wished on the
ground that all activities somehow affect interstate
commerce. These critics concluded that Lopez was
not an isolated ruling; rather, it should be considered
in conjunction with New York v. United States and
Printz v. United States (1997) (both excerpted in
Chapter 6)—other decisions in which a majority of
the Court ruled against federal action that was seen
as encroaching on the states.
The justices themselves seemed divided on what the

case represented. In their concurring opinions,
Justice Anthony Kennedy called Lopez a “limited
holding,” but Justice Clarence Thomas declared that
it was time “to modify our Commerce Clause
jurisprudence.” The Court’s 5–4 vote contributed
additional uncertainty. Whether Lopez was an
aberration or a signal that the Court was following
Thomas’s advice became clearer five years later,
when the Court issued its decision in United States v.
Morrison.
United States v. Morrison 529 U.S. 598 (2000)
court/529/598.html


Thomas)

DISSENTING OPINIONS: Breyer, Souter
Facts:
Not long after Christy Brzonkala enrolled at
Virginia Polytechnic Institute (Virginia Tech) in the
fall of 1994, she met Antonio Morrison and James
Crawford, members of the university’s varsity
football team. Brzonkala alleged that within thirty
minutes of meeting Morrison and Crawford, she
was assaulted and repeatedly raped by the two
young men. She claimed that the attack caused
her to become severely emotionally disturbed and
depressed. In early 1995 she filed a complaint
under Virginia Tech’s sexual assault policy. At the
subsequent hearing Morrison admitted having
sexual contact with Brzonkala and claimed that
even though she had twice told him no, the sexual
activity was ultimately consensual.
The Judicial Committee found insufficient

evidence against Crawford, but it found Morrison
guilty of sexual assault and sentenced him to an
immediate suspension from the university for two
semesters. Morrison appealed this decision, and,
because of procedural technicalities, the
university retried Morrison under its abusive
conduct policy. This time Morrison was found
guilty of “using abusive language” and sentenced
once more to a two-semester suspension.
Morrison again appealed. The university provost
set aside Morrison’s punishment. She concluded
that it was “excessive” when compared with other
convictions under the abusive conduct policy.
Morrison’s final punishment was probation and
minimal counseling.
Brzonkala then filed suit in federal district court

against Morrison, Crawford, and Virginia Tech
under 42 U.S.C. 13981, the Violence Against
Women Act of 1994, which provided a federal civil
remedy for the victims of gender-motivated
violence. The district court held that Congress
lacked the authority to pass this particular
provision under either the commerce clause or the
Fourteenth Amendment. A divided court of
appeals affirmed that conclusion. The United
States intervened in the suit to defend the validity
of the statute. Because the court of appeals had
invalidated a federal statute on constitutional
grounds, the Supreme Court granted certiorari.
The justices concluded that Congress did not have

the power to enact the challenged statute under
the Fourteenth Amendment. In the portion of the
decision excerpted here, the Court addresses
Congress’s authority to enact this legislation
under the commerce clause.
Arguments:
The law is an appropriate exercise of
Congress’s power under the commerce clause.
After four years of investigation, Congress
found that gender-motivated violence burdens
the national economy and interstate commerce
by making women fear for their safety in the
workplace and by imposing increased medical
and other costs on victims, their employers
and insurers, and state and local governments.
All of those burdens were documented in the
extensive legislative record.
Congress’s commerce power is not confined to
the regulation of those intrastate activities that
are “commercial” or “economic” in nature. It is
not the character of the activity but the
substantiality of its impact on interstate
commerce that determines whether the
activity may be regulated under the commerce
clause, as was suggested in Lopez. Even so,
the act is connected to economic activity
because the gender-motivated violence
remedied occurs at, or en route to, workplaces,
retail establishments, and interstate
transportation terminals as well as in other
settings.
For the respondent, Antonio J.

Morrison:
Congress cannot regulate felonious conduct
under its commerce power because the activity
being regulated is wholly noneconomic in
nature. In Lopez the Court emphasized the
noneconomic nature of the activity being
regulated.
Petitioner’s arguments would give Congress
the power to pass virtually any legislation at all
because all human activity has economic
consequences of one kind or another. That was
the federalism concern at the core of Lopez.
Ultimately, the government’s argument
amounts to the proposition that Congress
should be able to regulate any problem it
deems sufficiently important. Morrison has a
right to be free from an overreaching Congress,
just as he has the right to be free from a
Congress that would pass a law abridging
freedom of speech.

of the Court.
Due respect for the decisions of a coordinate

branch of Government demands that we invalidate
a congressional enactment only upon a plain
showing that Congress has exceeded its
constitutional bounds. With this presumption of
constitutionality in mind, we turn to the question
whether §13981 falls within Congress’ power
under Article I, §8, of the Constitution. Brzonkala
and the United States rely upon the third clause of
the Article, which gives Congress power “[t]o
regulate Commerce with foreign Nations, and
Tribes.”
As we discussed at length in [United States v.]

Lopez [1995], our interpretation of the Commerce
Clause has changed as our Nation has developed.
We need not repeat that detailed review of the
Commerce Clause’s history here; it suffices to say
that, in the years since NLRB v. Jones & Laughlin
Steel Corp. (1937), Congress has had considerably
greater latitude in regulating conduct and
transactions under the Commerce Clause than our
previous case law permitted.
Lopez emphasized, however, that even under our

modern, expansive interpretation of the
Commerce Clause, Congress’ regulatory authority
is not without effective bounds.
“[E]ven [our] modern-era precedents which

have expanded congressional power under the
Commerce Clause confirm that this power is
subject to outer limits. In Jones & Laughlin
Steel, the Court warned that the scope of the
interstate commerce power ‘must be
considered in the light of our dual system of
government and may not be extended so as to
embrace effects upon interstate commerce so
indirect and remote that to embrace them, in
view of our complex society, would effectually
obliterate the distinction between what is
national and what is local and create a
completely centralized government.’”
As we observed in Lopez, modern Commerce

Clause jurisprudence has “identified three broad
categories of activity that Congress may regulate
under its commerce power.” “First, Congress may
regulate the use of the channels of interstate
commerce.” “Second, Congress is empowered to
regulate and protect the instrumentalities of
interstate commerce, or persons or things in
interstate commerce, even though the threat may
come only from intrastate activities.” “Finally,
Congress’ commerce authority includes the power
to regulate those activities having a substantial
relation to interstate commerce, . . . i.e., those
activities that substantially affect interstate
commerce.”
Petitioners do not contend that these cases fall
within either of the first two of these categories of
Commerce Clause regulation. They seek to sustain
§13981 as a regulation of activity that
substantially affects interstate commerce. . . .
Since Lopez most recently canvassed and clarified

our case law governing this third category of
Commerce Clause regulation, it provides the
proper framework for conducting the required
analysis of §13981. In Lopez, we held that the
Gun-Free School Zones Act of 1990, which made it
a federal crime to knowingly possess a firearm in
a school zone, exceeded Congress’ authority under
the Commerce Clause. Several significant
considerations contributed to our decision.
First, we observed that [the Gun-Free School

Zones Act] was “a criminal statute that by its
terms has nothing to do with ‘commerce’ or any
sort of economic enterprise, however broadly one
might define those terms.” . . .
. . . Lopez’s review of Commerce Clause case law

demonstrates that in those cases where we have
sustained federal regulation of intrastate activity
based upon the activity’s substantial effects on
interstate commerce, the activity in question has
been some sort of economic endeavor.
The second consideration that we found important

. . . was that the statute contained “no express
jurisdictional element which might limit its reach
to a discrete set of firearm possessions that
additionally have an explicit connection with or
effect on interstate commerce.” . . .
Third, we noted that neither [the Gun-Free School
Zones Act] “nor its legislative history contain[s]
express congressional findings regarding the
effects upon interstate commerce of gun
possession in a school zone.” While “Congress
normally is not required to make formal findings
as to the substantial burdens that an activity has
on interstate commerce,” the existence of such
findings may “enable us to evaluate the legislative
judgment that the activity in question substantially
affect[s] interstate commerce, even though no
such substantial effect [is] visible to the naked
eye.”
Finally, our decision in Lopez rested in part on the

fact that the link between gun possession and a
substantial effect on interstate commerce was
attenuated. The United States argued that the
possession of guns may lead to violent crime, and
that violent crime “can be expected to affect the
functioning of the national economy in two ways.
First, the costs of violent crime are substantial,
and, through the mechanism of insurance, those
costs are spread throughout the population.
Second, violent crime reduces the willingness of
individuals to travel to areas within the country
that are perceived to be unsafe.” The Government
also argued that the presence of guns at schools
poses a threat to the educational process, which in
turn threatens to produce a less efficient and
productive workforce, which will negatively affect
national productivity and thus interstate
commerce.
We rejected these “costs of crime” and “national

productivity” arguments because they would
permit Congress to “regulate not only all violent
crime, but all activities that might lead to violent
crime, regardless of how tenuously they relate to
interstate commerce.” . . .
“ . . . Thus, if we were to accept the

Government’s arguments, we are hard pressed
to posit any activity by an individual that
Congress is without power to regulate.”
[Lopez.]
With these principles underlying our Commerce

Clause jurisprudence as reference points, the
proper resolution of the present cases is clear.
Gender-motivated crimes of violence are not, in
any sense of the phrase, economic activity. While
we need not adopt a categorical rule against
aggregating the effects of any noneconomic
activity in order to decide these cases, thus far in
our Nation’s history our cases have upheld
Commerce Clause regulation of intrastate activity
only where that activity is economic in nature.
Like the Gun-Free School Zones Act at issue in

Lopez, §13981 contains no jurisdictional element
establishing that the federal cause of action is in
pursuance of Congress’ power to regulate
interstate commerce. . . .
In contrast with the lack of congressional findings

that we faced in Lopez, §13981 is supported by
numerous findings regarding the serious impact
that gender-motivated violence has on victims and
their families. But the existence of congressional
findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation.
As we stated in Lopez, “‘[S]imply because
Congress may conclude that a particular activity
substantially affects interstate commerce does not
necessarily make it so.’” Rather, “‘[w]hether
particular operations affect interstate commerce
sufficiently to come under the constitutional
power of Congress to regulate them is ultimately a
judicial rather than a legislative question, and can
be settled finally only by this Court.’”
. . . Congress’ findings are substantially weakened

by the fact that they rely so heavily on a method of
reasoning that we have already rejected as
unworkable if we are to maintain the
Constitution’s enumeration of powers. Congress
found that gender-motivated violence affects
interstate commerce
“by deterring potential victims from traveling

interstate, from engaging in employment in
interstate business, and from transacting with
business, and in places involved in interstate
commerce; . . . by diminishing national
productivity, increasing medical and other
costs, and decreasing the supply of and the
demand for interstate products.”
Given these findings and petitioners’ arguments,

the concern that we expressed in Lopez that
Congress might use the Commerce Clause to
completely obliterate the Constitution’s distinction
between national and local authority seems well
founded. . . .If accepted, petitioners’ reasoning
would allow Congress to regulate any crime as
long as the nationwide, aggregated impact of that
crime has substantial effects on employment,
production, transit, or consumption. Indeed, if
Congress may regulate gender-motivated violence,
it would be able to regulate murder or any other
type of violence since gender-motivated violence,
as a subset of all violent crime, is certain to have
lesser economic impacts than the larger class of
which it is a part.
Petitioners’ reasoning, moreover, will not limit

Congress to regulating violence but may, as we
suggested in Lopez, be applied equally as well to
family law and other areas of traditional state
regulation since the aggregate effect of marriage,
divorce, and childrearing on the national economy
is undoubtedly significant. Congress may have
recognized this specter when it expressly
precluded §13981 from being used in the family
law context. Under our written Constitution,
however, the limitation of congressional authority
is not solely a matter of legislative grace.
We accordingly reject the argument that Congress

may regulate noneconomic, violent criminal
conduct based solely on that conduct’s aggregate
effect on interstate commerce. The Constitution
requires a distinction between what is truly
national and what is truly local. In recognizing this
fact we preserve one of the few principles that has
been consistent since the Clause was adopted. The
regulation and punishment of intrastate violence
that is not directed at the instrumentalities,
channels, or goods involved in interstate
commerce has always been the province of the
States. Indeed, we can think of no better example
of the police power, which the Founders denied
the National Government and reposed in the
States, than the suppression of violent crime and
vindication of its victims. . . .
Petitioner Brzonkala’s complaint alleges that she

was the victim of a brutal assault. . . . If the
allegations here are true, no civilized system of
justice could fail to provide her a remedy for the
conduct of respondent Morrison. But under our
federal system that remedy must be provided by
the Commonwealth of Virginia, and not by the
United States. The judgment of the Court of
Appeals is
Affirmed.

The Court says both that it leaves Commerce
Clause precedent undisturbed and that the Civil
Rights Remedy of the Violence Against Women Act
of 1994 exceeds Congress’s power under that
Clause. I find the claims irreconcilable and
Our cases, which remain at least nominally

undisturbed, stand for the following propositions.
Congress has the power to legislate with regard to
activity that, in the aggregate, has a substantial
effect on interstate commerce. The fact of such a
substantial effect is not an issue for the courts in
the first instance, but for the Congress, whose
institutional capacity for gathering evidence and
taking testimony far exceeds ours. By passing
legislation, Congress indicates its conclusion,
whether explicitly or not, that facts support its
exercise of the commerce power. The business of
the courts is to review the congressional
assessment, not for soundness but simply for the
rationality of concluding that a jurisdictional basis
exists in fact. Any explicit findings that Congress
chooses to make, though not dispositive of the
question of rationality, may advance judicial
review by identifying factual authority on which
Congress relied. Applying those propositions in
these cases can lead to only one conclusion.
One obvious difference from United States v.

Lopez (1995) is the mountain of data assembled by
Congress, here showing the effects of violence
against women on interstate commerce. Passage
of the Act in 1994 was preceded by four years of
hearings, which included testimony from
physicians and law professors; from survivors of
rape and domestic violence; and from
representatives of state law enforcement and
private business. The record includes reports on
gender bias from task forces in 21 States, and we
have the benefit of specific factual findings in the
eight separate Reports issued by Congress and its
committees over the long course leading to
enactment. . . .
Congress thereby explicitly stated the predicate

for the exercise of its Commerce Clause power. Is
its conclusion irrational in view of the data
amassed? True, the methodology of particular
studies may be challenged, and some of the
figures arrived at may be disputed. But the
sufficiency of the evidence before Congress to
provide a rational basis for the finding cannot
seriously be questioned. . . .
The Act would have passed muster at any time

between Wickard [v. Filburn] in 1942 and Lopez in
1995, a period in which the law enjoyed a stable
understanding that congressional power under the
Commerce Clause, complemented by the authority
of the Necessary and Proper Clause, extended to
all activity that, when aggregated, has a
substantial effect on interstate commerce. . . .
The fact that the Act does not pass muster before
the Court today is therefore proof, to a degree that
Lopez was not, that the Court’s nominal
adherence to the substantial effects test is merely
that. Although a new jurisprudence has not
emerged with any distinctness, it is clear that
some congressional conclusions about obviously
substantial, cumulative effects on commerce are
being assigned lesser values than the once-stable
doctrine would assign them. These devaluations
are accomplished not by any express repudiation
of the substantial effects test or its application
through the aggregation of individual conduct, but
by supplanting rational basis scrutiny with a new
criterion of review. . . .
All of this convinces me that today’s ebb of the

commerce power rests on error, and at the same
time leads me to doubt that the majority’s view
will prove to be enduring law. There is yet one
more reason for doubt. Although we sense the
presence of [Carter v.] Carter Coal [1936],
Schechter [Poultry v. United States, 1935], and
[National League of Cities v.] Usery [1976] once
again, the majority embraces them only at arm’s-
length. Where such decisions once stood for rules,
today’s opinion points to considerations by which
substantial effects are discounted. Cases standing
for the sufficiency of substantial effects are not
overruled; cases overruled since 1937 are not
quite revived. The Court’s thinking betokens less
clearly a return to the conceptual straitjackets of
Schechter and Carter Coal and Usery than to
something like the unsteady state of obscenity law
between Redrup v. New York (1967) and Miller v.
California (1973), a period in which the failure to
provide a workable definition left this Court to
review each case ad hoc. As our predecessors
learned then, the practice of such ad hoc review
cannot preserve the distinction between the
judicial and the legislative, and this Court, in any
event, lacks the institutional capacity to maintain
such a regime for very long. This one will end
when the majority realizes that the conception of
the commerce power for which it entertains hopes
would inevitably fail the test expressed in Justice
Holmes’s statement that “[t]he first call of a
theory of law is that it should fit the facts.” The
facts that cannot be ignored today are the facts of
integrated national commerce and a political
relationship between States and Nation much
affected by their respective treasuries and
constitutional modifications adopted by the
people. The federalism of some earlier time is no
more adequate to account for those facts today
than the theory of laissez-faire was able to govern
the national economy 70 years ago.
The importance of United States v. Morrison

extended far beyond the main participants in the
dispute (see Box 7-8). By the same 5–4 vote as
occurred in Lopez and using the same reasoning, the
Supreme Court struck down the challenged
provisions of the Violence Against Women Act. Four
months later the justices in Jones v. United States
(2000) held that a federal criminal statute against
arson, passed pursuant to the interstate commerce
power, could not be applied to a man who tossed a
Molotov cocktail into his cousin’s house. Because the
target of the arson was a private residence not used
in any commercial activity, the Court concluded that
Congress under the commerce clause had no
authority to regulate.21
21 The Court reinforced this revised view of the

federal commerce power in Solid Waste Agency of
Northern Cook County v. United States Army Corps
of Engineers (2001), a case presenting a factual
story very different from those challenging the
authority of Congress to regulate gun possession,
rape, or arson. At issue was an application of the
federal Clean Water Act. A consortium of twenty-
three Chicago-area cities attempted to develop a
solid waste facility on a 533-acre parcel that
previously had been used as a sand and gravel pit
operation. The site included a series of small ponds,
some permanent and others seasonal. The Army
Corps of Engineers claimed that federal approval
was necessary before development could take place
because the ponds were habitats for migratory birds
that crossed state lines. The Court, in another 5–4
ruling, held that the Corps’ action impinged on the
states’ traditional power over land and water use,
and that there was no evidence that Congress’s
regulation of navigable waters extended to
abandoned gravel pits.
The opinions in Lopez, Morrison, and Jones, taken

together with other Rehnquist Court federalism and
taxation decisions, provide some indication of the
Court’s modified commerce clause jurisprudence
(see Box 7-9). Following the New Deal revolution,
the federal government was given wide latitude to
regulate in the name of interstate commerce, but
now the Court seemed to be cautioning that the
commerce clause does not give Congress a blank
check to regulate all activity in the name of
commerce. In contrast to the New Deal case of
Darby, the Court asserted that the Tenth Amendment
could stand as a barrier to laws passed under the
commerce clause if they commandeered the states,
as in Printz. And in contrast to a case like Garcia, the
Court in Lopez and Morrison now suggested that a
federal law may be constitutionally suspect if it does
not regulate an economic activity that, in the
aggregate, substantially affects interstate
commerce.
Box 7-8 Aftermath . . . United States v.
Morrison
CHRISTY BRZONKALA, a former high school

basketball player, arrived at Virginia Tech in 1994
with the goal of becoming a sports nutritionist.
Antonio Morrison and James Crawford were
members of the highly ranked Virginia Tech
football team. They had dreams of careers in
athletics, perhaps even in professional football.
The ambitions of all three were shattered as the
result of an incident in a dorm room on a
September evening just one month after the
school year began, when, as Brzonkala claimed,
Morrison and Crawford gang-raped her. What
followed was a tangled legal battle ending in the
Supreme Court’s decision in United States v.
Morrison (2000). By the time the Supreme Court
issued its opinion, the case had evolved into a
federalism controversy over the extent to which
Congress can regulate under its interstate
commerce powers. Left behind were the lives of
the three principals in the case.
Christy Brzonkala, with one of her attorneys,

Kathryn Rodgers of the NOW Legal Defense Fund.
AP Photo
Brzonkala initially failed to tell anyone about the

alleged assault. After several months of rarely
leaving her room, performing poorly in her
courses, and abusing thyroid medication, she
came forward with her story. The university
refused to expel Morrison and Crawford, and
Brzonkala dropped out of college and moved back
to her family’s home in Fairfax County, Virginia.
She resumed her academic career at George
Mason University, but remained there only briefly.
She then moved to Washington, D.C., and found
work as a waitress. Brzonkala’s suit against the
university for sex discrimination was settled out of
court. Virginia Tech agreed to pay her $75,000 but
admitted no wrongdoing. In 2000 the National
Organization for Women, which had supported
Brzonkala’s legal efforts, bestowed on her its
Women of Courage Award.
The football players argued that they were

unfairly charged. Morrison claimed that his sexual
encounter with Brzonkala was consensual, and
Crawford said that he left the room before any
sexual activity occurred. Although police
investigated the incident, neither Morrison nor
Crawford was charged with any criminal offense.
The university placed Morrison on probation, but

he was allowed to remain in school. Not long
thereafter he was suspended from the football
team following his arrest during a bar brawl. He
transferred to Hampton University but returned to
Virginia Tech a semester later. He did not play
football again. He ultimately received a degree in
human nutrition, foods, and exercise. After
graduating, Morrison pursued a career as an
athletic trainer but found it difficult to find
employment. He claimed that racial factors were
partially responsible for the unfair treatment he
received and the damage his reputation suffered.
Crawford was later convicted of an unrelated

sexual assault and disorderly conduct after an
altercation in a parking lot. He was stripped of his
football scholarship and left the university. He
returned to his home state of Florida and began
working in retail.
Although the Supreme Court held that the federal

government had acted unconstitutionally in
passing the challenged provisions of the Violence
Against Women Act, Brzonkala was free to take
her suit against Morrison and Crawford to state
court. Brzonkala and her attorneys, however, said
there was little chance that they would do so.
Such a suit would be for monetary damages, and
even if it were successful, Morrison and Crawford
had little means of satisfying any judgment
against them.
Sources: Baltimore Sun, January 8, 2000;

Washington Post, May 20, 2000.
Box 7-9 Evolution of Interstate Commerce

Doctrine
The importance of this evolution in doctrine remains
to be seen. Although the Court has enunciated a
revised interpretation of the commerce power, its
application of that standard in no way resembles the
breadth of the Court’s attack on federal authority in
the period prior to 1937. In fact, some of its
decisions have been quite consistent with its earlier
post–New Deal jurisprudence. One example is
Gonzales v. Raich (2005), a controversial ruling on
the validity of state laws that allow the medical use
of marijuana. Under vigorous attack from the
dissenters, the majority applied the precedent of
Wickard v. Filburn and other post–New Deal
doctrine.
Gonzales v. Raich 545 U.S. 1 (2005)
court/545/1.html

Vote: 6 (Breyer, Ginsburg, Kennedy, Scalia, Souter,

Stevens)
3 (O’Connor, Rehnquist, Thomas)

OPINION CONCURRING IN JUDGMENT:
Scalia
DISSENTING OPINIONS: O’Connor, Thomas
Facts:
In 1996 California voters passed Proposition 215,
commonly known as the Compassionate Use Act.
The law allowed seriously ill state residents to use
marijuana for medical purposes. The act also
created an exemption from criminal prosecution
for patients, physicians, and caregivers who
cultivate and possess marijuana for medical
reasons.
Angel Raich, shown here at a 2004 press

conference, sued to block the U.S. attorney
general from enforcing the federal Controlled
Substances Act against her. Raich, suffering from
a brain tumor and other serious medical
conditions, used marijuana under California’s
Compassionate Use Act to combat her pain and
discomfort.
AP Photo/Noah Berger
Diane Monson joined Angel Raich in asking the

Supreme Court to uphold California’s medicinal
marijuana law. Monson, under a physician’s
direction, regularly used marijuana to alleviate
chronic and severe back pain.
AP Photo/Rich Pedroncelli
Californian Angel Raich suffered from more than
ten serious and possibly life-threatening medical
conditions, including an inoperable brain tumor.
On the advice of her doctor she used marijuana to
help ease her suffering. Too ill to produce her own
supply, Raich depended on two caregivers to grow
and provide marijuana without charge.
Diane Monson, another California resident

following her physician’s advice, had been using
marijuana in compliance with the Compassionate
Use Act for about five years to combat chronic
back pain caused by a degenerative disease of the
spine. She grew about six cannabis plants to
maintain a supply of the drug.
In 2002 county deputy sheriffs and federal drug

agents came to Monson’s home. After an
investigation, the local officials found no evidence
of illegal activity under California law. The federal
agents, however, concluded that Monson’s
possession of marijuana violated the federal
Controlled Substances Act. They seized and
destroyed her marijuana plants.
Raich and Monson brought a lawsuit against

Attorney General Alberto Gonzales and the head
of the U.S. Drug Enforcement Administration to
bar enforcement of the Controlled Substances Act
to the extent that it prevented them from
obtaining and possessing marijuana for medical
purposes. The federal government claimed that its
constitutional power to regulate commerce was
sufficiently broad to regulate the use of the
substance. Raich and Monson argued that the
federal commerce power does not extend to the
medical use of marijuana, a purely local and
noncommercial activity regulated by state law.
They further claimed that their marijuana plants
were grown and processed only with water,
nutrients, supplies, and equipment originating in
California. The court of appeals ruled in favor of
Raich and Monson, and the federal government
asked the Supreme Court to reverse.
Arguments:
For the petitioners, Alberto R. Gonzales,
attorney general, et al.:
Congress has the power under the commerce

clause, coupled with the necessary and proper
clause, to regulate local activity that
substantially affects interstate commerce (see
Wickard v. Filburn and United States v. Darby).
Congress’s determination that local activity
with respect to a product substantially affects
interstate commerce or could interfere with
Congress’s objective in regulating the
interstate market of that product is entitled to
substantial deference.
Because marijuana trafficking is a commercial
activity that occurs in interstate and foreign
commerce and affects interstate commerce,
Congress has the power under the commerce
clause to regulate all commercial marijuana
activity, including commercial possession,
manufacture, and distribution that occurs
wholly intrastate (see United States v. Lopez).
The act also constitutionally regulates
intrastate manufacture and possession of
marijuana for personal use and the distribution
of those substances without charge. Congress
has concluded that regulation of all intrastate
drug activity “is essential to the effective
control” of interstate drug trafficking and that
regulation of intrastate drug activity was a
reasonably necessary means to accomplish its
comprehensive regulation of the interstate
market in controlled substances.
For the respondents, Angel

McClary Raich et al.:
This case is and always has been about state
sovereignty and federalism. The issue is
whether the federal government may
criminalize wholly intrastate, noncommercial
conduct that is expressly authorized by the
state in an exercise of its broad powers to
define criminal law, regulate medical practice,
and protect the lives of its citizens. In Lopez
and United States v. Morrison the Court
invalidated federal statutes that were
consistent with achievement of goals shared
by all the states.
The government’s argument goes beyond the
outer limits of Wickard, which involved
regulation of commercial farming activity. The
respondents’ activity is not commercial, and
the link between it and interstate commerce is,
at best, attenuated. In addition, prohibiting
respondents’ activity is not essential to a larger
regulation of interstate economic activity.
Court.
California is one of at least nine States that

authorize the use of marijuana for medicinal
purposes. The question presented in this case is
whether the power vested in Congress by Article I,
§8, of the Constitution “[t]o make all Laws which
shall be necessary and proper for carrying into
Execution” its authority to “regulate Commerce
with foreign Nations, and among the several
States” includes the power to prohibit the local
cultivation and use of marijuana in compliance
with California law. . . .
Respondents in this case do not dispute that

passage of the CSA [Controlled Substances Act],
as part of the Comprehensive Drug Abuse
Prevention and Control Act, was well within
Congress’ commerce power. Nor do they contend
that any provision or section of the CSA amounts
to an unconstitutional exercise of congressional
authority. Rather, respondents’ challenge is
actually quite limited; they argue that the CSA’s
categorical prohibition of the manufacture and
possession of marijuana as applied to the
intrastate manufacture and possession of
marijuana for medical purposes pursuant to
California law exceeds Congress’ authority under
In assessing the validity of congressional

regulation, none of our Commerce Clause cases
can be viewed in isolation. As charted in
considerable detail in United States v. Lopez
[1995], our understanding of the reach of the
Commerce Clause, as well as Congress’ assertion
of authority thereunder, has evolved over time. . . .
. . . [We have now] identified three general

categories of regulation in which Congress is
authorized to engage under its commerce power.
First, Congress can regulate the channels of
interstate commerce. Perez v. United States
(1971). Second, Congress has authority to
regulate and protect the instrumentalities of
interstate commerce, and persons or things in
interstate commerce. Ibid. Third, Congress has
the power to regulate activities that substantially
affect interstate commerce. Ibid.; NLRB v. Jones &
Laughlin Steel Corp. (1937). Only the third
category is implicated in the case at hand.
Our case law firmly establishes Congress’ power

to regulate purely local activities that are part of
an economic “class of activities” that have a
substantial effect on interstate commerce. See,
e.g., Perez; Wickard v. Filburn (1942). As we
stated in Wickard, “even if appellee’s activity be
local and though it may not be regarded as
commerce, it may still, whatever its nature, be
reached by Congress if it exerts a substantial
economic effect on interstate commerce.” We have
never required Congress to legislate with
scientific exactitude. When Congress decides that
the “‘total incidence’” of a practice poses a threat
to a national market, it may regulate the entire
class. In this vein, we have reiterated that when
“‘a general regulatory statute bears a substantial
relation to commerce, the de minimis character of
individual instances arising under that statute is of
no consequence.’”
Our decision in Wickard is of particular relevance.

...
Wickard . . . establishes that Congress can

regulate purely intrastate activity that is not itself
“commercial,” in that it is not produced for sale, if
it concludes that failure to regulate that class of
activity would undercut the regulation of the
interstate market in that commodity.
The similarities between this case and Wickard

are striking. Like the farmer in Wickard,
respondents are cultivating, for home
consumption, a fungible commodity for which
there is an established, albeit illegal, interstate
market. Just as the Agricultural Adjustment Act
was designed “to control the volume [of wheat]
moving in interstate and foreign commerce in
order to avoid surpluses . . .” and consequently
control the market price, a primary purpose of the
CSA is to control the supply and demand of
controlled substances in both lawful and unlawful
drug markets. In Wickard, we had no difficulty
concluding that Congress had a rational basis for
believing that, when viewed in the aggregate,
leaving home-consumed wheat outside the
regulatory scheme would have a substantial
influence on price and market conditions. Here
too, Congress had a rational basis for concluding
that leaving home-consumed marijuana outside
federal control would similarly affect price and
market conditions.
More concretely, one concern prompting inclusion
of wheat grown for home consumption in the 1938
Act was that rising market prices could draw such
wheat into the interstate market, resulting in
lower market prices. The parallel concern making
it appropriate to include marijuana grown for
home consumption in the CSA is the likelihood
that the high demand in the interstate market will
draw such marijuana into that market. While the
diversion of homegrown wheat tended to frustrate
the federal interest in stabilizing prices by
regulating the volume of commercial transactions
in the interstate market, the diversion of
homegrown marijuana tends to frustrate the
federal interest in eliminating commercial
transactions in the interstate market in their
entirety. In both cases, the regulation is squarely
within Congress’ commerce power because
production of the commodity meant for home
consumption, be it wheat or marijuana, has a
substantial effect on supply and demand in the
national market for that commodity. . . .
In assessing the scope of Congress’ authority

under the Commerce Clause, we stress that the
task before us is a modest one. We need not
determine whether respondents’ activities, taken
in the aggregate, substantially affect interstate
commerce in fact, but only whether a “rational
basis” exists for so concluding. Given the
enforcement difficulties that attend distinguishing
between marijuana cultivated locally and
marijuana grown elsewhere and concerns about
diversion into illicit channels, we have no difficulty
concluding that Congress had a rational basis for
believing that failure to regulate the intrastate
manufacture and possession of marijuana would
leave a gaping hole in the CSA. Thus, as in
Wickard, when it enacted comprehensive
legislation to regulate the interstate market in a
fungible commodity, Congress was acting well
within its authority to “make all Laws which shall
be necessary and proper” to “regulate Commerce .
. . among the several States.” That the regulation
ensnares some purely intrastate activity is of no
moment. As we have done many times before, we
refuse to excise individual components of that
larger scheme.
To support their contrary submission, respondents

rely heavily on two of our more recent Commerce
Clause cases. In their myopic focus, they overlook
the larger context of modern-era Commerce
Clause jurisprudence preserved by those cases.
Moreover, even in the narrow prism of
respondents’ creation, they read those cases far
too broadly. Those two cases, of course, are Lopez
and [United States v.] Morrison [2000]. . . .
Unlike those at issue in Lopez and Morrison, the

activities regulated by the CSA are
quintessentially economic. “Economics” refers to
“the production, distribution, and consumption of
commodities.” Webster’s Third New International
Dictionary 720 (1966). The CSA is a statute that
regulates the production, distribution, and
consumption of commodities for which there is an
established, and lucrative, interstate market.
Prohibiting the intrastate possession or
manufacture of an article of commerce is a
rational (and commonly utilized) means of
regulating commerce in that product. . . .Because
the CSA is a statute that directly regulates
economic, commercial activity, our opinion in
Morrison casts no doubt on its constitutionality. . .
.
The exemption for cultivation by patients and

care-givers can only increase the supply of
marijuana in the California market. The likelihood
that all such production will promptly terminate
when patients recover or will precisely match the
patients’ medical needs during their
convalescence seems remote; whereas the danger
that excesses will satisfy some of the admittedly
enormous demand for recreational use seems
obvious. Moreover, that the national and
international narcotics trade has thrived in the
face of vigorous criminal enforcement efforts
suggests that no small number of unscrupulous
people will make use of the California exemptions
to serve their commercial ends whenever it is
feasible to do so. Taking into account the fact that
California is only one of at least nine States to
have authorized the medical use of marijuana, . . .
Congress could have rationally concluded that the
aggregate impact on the national market of all the
transactions exempted from federal supervision is
unquestionably substantial.
. . . Thus the case for the exemption comes down

to the claim that a locally cultivated product that
is used domestically rather than sold on the open
market is not subject to federal regulation. Given
the findings in the CSA and the undisputed
magnitude of the commercial market for
marijuana, our decisions in Wickard v. Filburn and
the later cases endorsing its reasoning foreclose
that claim. . . .
. . . [T]he judgment of the Court of Appeals must

be vacated. The case is remanded for further
It is so ordered.
JUSTICE SCALIA, concurring in

the judgment.
I agree with the Court’s holding that the
Controlled Substances Act (CSA) may validly be
applied to respondents’ cultivation, distribution,
and possession of marijuana for personal,
medicinal use. I write separately because my
understanding of the doctrinal foundation on
which that holding rests is, if not inconsistent with
that of the Court, at least more nuanced.
Since Perez v. United States (1971), our cases

have mechanically recited that the Commerce
Clause permits congressional regulation of three
categories: (1) the channels of interstate
commerce; (2) the instrumentalities of interstate
commerce, and persons or things in interstate
commerce; and (3) activities that “substantially
affect” interstate commerce. The first two
categories are self-evident, since they are the
ingredients of interstate commerce itself. See
Gibbons v. Ogden (1824). The third category,
however, is different in kind, and its recitation
without explanation is misleading and incomplete.
It is misleading because, unlike the channels,
instrumentalities, and agents of interstate
commerce, activities that substantially affect
interstate commerce are not themselves part of
interstate commerce, and thus the power to
regulate them cannot come from the Commerce
Clause alone. Rather, as this Court has
acknowledged since at least United States v.
Coombs (1838), Congress’s regulatory authority
over intrastate activities that are not themselves
part of interstate commerce (including activities
that have a substantial effect on interstate
commerce) derives from the Necessary and
Proper Clause. And the category of “activities that
substantially affect interstate commerce,” Lopez,
is incomplete because the authority to enact laws
necessary and proper for the regulation of
interstate commerce is not limited to laws
governing intrastate activities that substantially
affect interstate commerce. Where necessary to
make a regulation of interstate commerce
effective, Congress may regulate even those
intrastate activities that do not themselves
substantially affect interstate commerce.

whom the CHIEF JUSTICE and
JUSTICE THOMAS join . . . ,
dissenting.
We enforce the “outer limits” of Congress’
Commerce Clause authority not for their own
sake, but to protect historic spheres of state
sovereignty from excessive federal encroachment
and thereby to maintain the distribution of power
fundamental to our federalist system of
government. One of federalism’s chief virtues, of
course, is that it promotes innovation by allowing
for the possibility that “a single courageous State
may, if its citizens choose, serve as a laboratory;
and try novel social and economic experiments
without risk to the rest of the country.” New State
Ice Co. v. Liebmann (1932) (Brandeis, J.,
dissenting).
This case exemplifies the role of States as

laboratories. The States’ core police powers have
always included authority to define criminal law
and to protect the health, safety, and welfare of
their citizens. Exercising those powers, California
(by ballot initiative and then by legislative
codification) has come to its own conclusion about
the difficult and sensitive question of whether
marijuana should be available to relieve severe
pain and suffering. Today the Court sanctions an
application of the federal Controlled Substances
Act that extinguishes that experiment, without any
proof that the personal cultivation, possession,
and use of marijuana for medicinal purposes, if
economic activity in the first place, has a
substantial effect on interstate commerce and is
therefore an appropriate subject of federal
regulation. In so doing, the Court announces a
rule that gives Congress a perverse incentive to
legislate broadly pursuant to the Commerce
Clause—nestling questionable assertions of its
authority into comprehensive regulatory schemes
—rather than with precision. That rule and the
result it produces in this case are irreconcilable
with our decisions in Lopez and United States v.
Morrison (2000). . . .
The Court’s definition of economic activity is

breathtaking. It defines as economic any activity
involving the production, distribution, and
consumption of commodities. And it appears to
reason that when an interstate market for a
commodity exists, regulating the intrastate
manufacture or possession of that commodity is
constitutional either because that intrastate
activity is itself economic, or because regulating it
is a rational part of regulating its market. . . .
[T]he Court’s definition of economic activity for
purposes of Commerce Clause jurisprudence
threatens to sweep all of productive human
activity into federal regulatory reach.
The Court uses a dictionary definition of

economics to skirt the real problem of drawing a
meaningful line between “what is national and
what is local.” It will not do to say that Congress
may regulate noncommercial activity simply
because it may have an effect on the demand for
commercial goods, or because the noncommercial
endeavor can, in some sense, substitute for
commercial activity. Most commercial goods or
services have some sort of privately producible
analogue. Home care substitutes for daycare.
Charades games substitute for movie tickets.
Backyard or windowsill gardening substitutes for
going to the supermarket. To draw the line
wherever private activity affects the demand for
market goods is to draw no line at all, and to
declare everything economic. . . .
The Government has not overcome empirical
doubt that the number of Californians engaged in
personal cultivation, possession, and use of
medical marijuana, or the amount of marijuana
they produce, is enough to threaten the federal
regime. Nor has it shown that Compassionate Use
Act marijuana users have been or are realistically
likely to be responsible for the drug’s seeping into
the market in a significant way. . . .
Relying on Congress’ abstract assertions, the

Court has endorsed making it a federal crime to
grow small amounts of marijuana in one’s own
home for one’s own medicinal use. This
overreaching stifles an express choice by some
States, concerned for the lives and liberties of
their people, to regulate medical marijuana
differently. If I were a California citizen, I would
not have voted for the medical marijuana ballot
initiative; if I were a California legislator I would
not have supported the Compassionate Use Act.
But whatever the wisdom of California’s
experiment with medical marijuana, the
federalism principles that have driven our
Commerce Clause cases require that room for
experiment be protected in this case. For these
reasons I dissent.

Respondents Diane Monson and Angel Raich use
marijuana that has never been bought or sold, that
has never crossed state lines, and that has had no
demonstrable effect on the national market for
marijuana. If Congress can regulate this under the
Commerce Clause, then it can regulate virtually
anything—and the Federal Government is no
longer one of limited and enumerated powers. . . .
Even the majority does not argue that

respondents’ conduct is itself “Commerce among
the several States.” Monson and Raich neither buy
nor sell the marijuana that they consume. They
cultivate their cannabis entirely in the State of
California—it never crosses state lines, much less
as part of a commercial transaction. Certainly no
evidence from the founding suggests that
“commerce” included the mere possession of a
good or some purely personal activity that did not
involve trade or exchange for value. In the early
days of the Republic, it would have been
unthinkable that Congress could prohibit the local
cultivation, possession, and consumption of
marijuana. . . .
Moreover, even a Court interested more in the

modern than the original understanding of the
Constitution ought to resolve cases based on the
meaning of words that are actually in the
document. Congress is authorized to regulate
“Commerce,” and respondents’ conduct does not
qualify under any definition of that term. The
majority’s opinion only illustrates the steady drift
away from the text of the Commerce Clause.
There is an inexorable expansion from
“‘commerce,’” to “commercial” and “economic”
activity, and finally to all “production, distribution,
and consumption” of goods or services for which
there is an “established . . . interstate market.”
Federal power expands, but never contracts, with
each new locution. The majority is not interpreting
the Commerce Clause, but rewriting it. . . .
. . . The majority’s rush to embrace federal power

“is especially unfortunate given the importance of
showing respect for the sovereign States that
comprise our Federal Union.” Our federalist
system, properly understood, allows California and
a growing number of other States to decide for
themselves how to safeguard the health and
welfare of their citizens. I would affirm the
judgment of the Court of Appeals. I respectfully
dissent.
Although the decision in Raich allows federal agents

to prosecute medical marijuana cases, in October
2009 the Obama administration announced that it
would no longer prosecute such cases if the
individuals involved are in compliance with state law.
When the Trump administration took office in 2017,
the Justice Department announced that it would
begin enforcing the federal law against marijuana
possession and distribution. The president, however,
quickly reversed that policy as it pertained to
activities that are legal under state law. The decision
of an increasing number of states, beginning with
Colorado and Washington, to remove bans on
recreational use of marijuana certainly widens the
policy gap between the legalizing states and federal
statutes. Clearly, under Gonzales v. Raich the federal
government can enforce federal laws prohibiting the
distribution and possession of marijuana no matter
what state law provides. For the present, federal
authorities have chosen not to prosecute such
violations. Whether that nonenforcement policy will
continue for the long term remains to be seen.
Raich demonstrates that Lopez, Morrison, and Jones

should not be seen as a wholesale repudiation of
commerce clause jurisprudence as it has developed
since 1937. Rather, the six-justice majority in Raich,
which included conservatives Antonin Scalia and
Anthony Kennedy, held fast to the precedent set in
Wickard v. Filburn: the production of commercially
viable items, when considered in the aggregate, has
a sufficiently substantial relationship with interstate
commerce to trigger the use of congressional
regulatory authority. But when Congress under the
commerce clause attempts to regulate noneconomic
activity (such as gun possession, rape, or arson)
without showing that the regulation is a necessary
part of a broader regulation of interstate commerce,
it may impermissibly infringe on powers reserved for
the states.
The justices were faced with a legal dispute in 2012

that required them to go well beyond the distinction
between economic and noneconomic activity. In
National Federation of Independent Business v.
Sebelius, the Court considered whether Congress
has the power to regulate economic inactivity. At
issue was the constitutionality of the Patient
Protection and Affordable Care Act of 2010. The
attacked legislation imposed comprehensive reforms
on the nation’s medical care and health insurance
sectors. The law was exceptionally controversial and
became a political issue that affected the 2010 and
2012 congressional and presidential elections. A
core question in the case was whether Congress
constitutionally can require unwilling individuals to
purchase health insurance.
On February 25, 2010, key figures in the debate over

proposed health care reforms met at Blair House in
Washington but were unsuccessful at finding
common ground. One month later President Obama
signed into law the Patient Protection and Affordable
Care Act after it had passed on a nearly straight
party-line vote, with congressional Democrats
supporting the law and Republicans opposed. From
left, President Barack Obama and Secretary of
Health and Human Services Kathleen Sebelius (both
Democrats), Senate Minority Leader Mitch
McConnell (R-Ky.), and House Minority Leader John
Boehner (R-Ohio).
© Pablo Martinez Monsivais/AP/Corbis
In deciding the case the justices examined

congressional powers under the commerce clause,
the necessary and proper clause, and the taxing and
spending clauses. In the following excerpt, we
provide the Court’s analysis of congressional
authority to enact the health care law under the
commerce clause and the necessary and proper
clause. As you will see, the majority concluded that
these constitutional provisions do not empower
Congress to regulate commercial inactivity. But the
commerce clause ruling did not settle the case. As
we will see in Chapter 8, the health insurance
purchase requirement, while not constitutional
under the commerce power, was found to be a valid
regulation under Congress’s authority to tax and
spend.

Sebelius 567 U.S. 519 (2012)
393.html

Vote on the commerce clause challenge to the

Affordable Care Act:
5 (Alito, Kennedy, Roberts, Scalia, Thomas)

4 (Breyer, Ginsburg, Kagan, Sotomayor)

THE COURT AND THE OPINION OF THE
COURT: Roberts
DISSENTING IN PART: Ginsburg
JOINT OPINION CONCURRING ON THE
COMMERCE CLAUSE ISSUE BUT
DISSENTING FROM THE FINAL CASE
OUTCOME: Alito, Kennedy, Scalia, and
Thomas
Facts:
In 2010 Congress passed the Patient Protection
and Affordable Care Act (ACA). The purpose of the
law was to increase the number of Americans
covered by health insurance and to decrease the
cost of health care. The law was passed along
partisan lines, with Democrats supporting the bill
and Republicans opposed. The American public
also was closely divided over the policies to be
implemented by the act. The legislation was quite
complex, with the statute running more than nine
hundred pages in length. It introduced major
changes in the health insurance industry,
expanded insurance coverage and benefits,
eliminated coverage limitations for preexisting
conditions, and significantly expanded Medicaid.
At the heart of the ACA was a requirement known

as the “individual mandate” (also known as the
“minimum coverage” requirement). This provision
directed that most Americans purchase “minimum
essential” health insurance coverage for
themselves and their dependents if they did not
receive such coverage from their employers.
Those who did not comply with this provision were
required to make a “shared responsibility”
payment to the federal government. The act
provided that this “penalty” be paid to the Internal
Revenue Service and “shall be assessed and
collected in the same manner” as tax penalties.
The mandate was intended to ensure that health
costs were evenly distributed throughout the
population and to prohibit individuals from
refusing to buy health insurance until they
developed medical conditions requiring treatment.
Almost immediately after President Obama signed

the bill into law, a series of lawsuits were filed
challenging the constitutionality of the ACA. The
lower federal courts reached differing opinions on
the validity of the law. To resolve this conflict, the
Supreme Court granted a petition to review a
decision of the Eleventh Circuit Court of Appeals
striking down portions of the law but allowing the
balance of the statute to remain in effect. The
appealed decision involved a suit initiated by the
National Federation of Independent Business,
twenty-six state governments, and several
individuals against Kathleen Sebelius, then
secretary of health and human services.
Challengers of the law argued that Congress

exceeded its commerce clause powers by
compelling individuals to purchase insurance
when they may not wish to do so. Commercial
inactivity, they argued, is not commerce. Secretary
Sebelius responded that health care is an integral
part of the national economy. Therefore, the
commerce clause and the necessary and proper
clause give Congress ample authority to enact a
comprehensive health-care law that includes an
individual mandate. She asserted that the ACA
was also a legitimate action under Congress’s
constitutional power to tax and spend. In another
line of attack, the challengers claimed that the
expansion of the federal Medicaid program
unconstitutionally infringed on the powers of the
states.
In the excerpted material appearing here, we

focus exclusively on the question of whether the
individual mandate provision can legitimately rest
on Congress’s power to regulate interstate
commerce and the necessary and proper clause.
In Chapter 8 we will return to this decision and
highlight arguments related to the authority of
Congress to tax and spend.
Arguments:
For the petitioners, National Federation
of Independent Business et al.:
The individual mandate is an unprecedented

law that rests on an extraordinary and
unbounded assertion of federal power.
The Constitution grants Congress the power to
regulate commerce, not the power to compel
individuals to enter into commerce.
The federal government may not save the
individual mandate by resorting to the
necessary and proper clause. The mandate is
not a law for carrying into execution the
commerce power. It is a law for carrying into
execution an independent power that the
Constitution does not grant to the federal
government.
For the respondents, Health and

Human Services Secretary
Kathleen Sebelius et al.:
Congress has authority under the commerce
and necessary and proper clauses to enact the
minimum coverage provision. The Affordable
Care Act expands access to health care
services and controls health care costs. The
minimum coverage provision plays a critical
role in that comprehensive regulatory scheme
by regulating how health care consumption is
financed.
The act’s minimum coverage provision is a
particularly well-adapted means of
accomplishing Congress’s concededly
legitimate ends. It is necessary to effectuate
Congress’s comprehensive reforms of the
insurance market and is itself an economic
regulation of the timing and method of
financing health care services. This provision
regulates economic activity that substantially
affects interstate commerce. Its links to
interstate commerce are tangible, direct, and
strong.
There is no textual support in the commerce
clause for the opponents’ “inactivity”
limitation. Furthermore, the uninsured as a
class are active in the market for health care,
which they regularly seek and obtain.
Chief Justice Roberts Announced the

Judgment of the Court and Delivered . . . an
Opinion with Respect to [the Commerce Clause
Challenge to the Individual Mandate].
In our federal system, the National Government

possesses only limited powers; the States and the
people retain the remainder. Nearly two centuries
ago, Chief Justice Marshall observed that “the
question respecting the extent of the powers
actually granted” to the Federal Government “is
perpetually arising, and will probably continue to
arise, as long as our system shall exist.”
McCulloch v. Maryland (1819). In this case we
must again determine whether the Constitution
grants Congress powers it now asserts, but which
many States and individuals believe it does not
possess. Resolving this controversy requires us to
examine both the limits of the Government’s
power, and our own limited role in policing those
boundaries.
The Federal Government “is acknowledged by all

to be one of enumerated powers.” Ibid. That is,
rather than granting general authority to perform
all the conceivable functions of government, the
Constitution lists, or enumerates, the Federal
Government’s powers. Congress may, for example,
“coin Money,” “establish Post Offices,” and “raise
and support Armies.” Art. I, §8, cls. 5, 7, 12. The
enumeration of powers is also a limitation of
powers, because “[t]he enumeration presupposes
something not enumerated.” Gibbons v. Ogden
(1824). The Constitution’s express conferral of
some powers makes clear that it does not grant
others. And the Federal Government “can exercise
only the powers granted to it.” McCulloch.
. . . If no enumerated power authorizes Congress

to pass a certain law, that law may not be enacted,
even if it would not violate any of the express
prohibitions in the Bill of Rights or elsewhere in
the Constitution.
. . . The Federal Government has expanded

dramatically over the past two centuries, but it
still must show that a constitutional grant of
power authorizes each of its actions. See, e.g.,
United States v. Comstock (2010).
The same does not apply to the States, because

the Constitution is not the source of their power. .
. .The States thus can and do perform many of the
vital functions of modern government—punishing
street crime, running public schools, and zoning
property for development, to name but a few—
even though the Constitution’s text does not
authorize any government to do so. Our cases
refer to this general power of governing,
possessed by the States but not by the Federal
Government, as the “police power.” See, e.g.,
United States v. Morrison (2000). . . .
This case concerns . . . powers that the

Constitution does grant the Federal Government,
but which must be read carefully to avoid creating
a general federal authority akin to the police
power. The Constitution authorizes Congress to
“regulate Commerce with foreign Nations, and
Tribes.” Our precedents read that to mean that
Congress may regulate “the channels of interstate
commerce,” “persons or things in interstate
commerce,” and “those activities that
substantially affect interstate commerce.”
Morrison. The power over activities that
substantially affect interstate commerce can be
expansive. That power has been held to authorize
federal regulation of such seemingly local matters
as a farmer’s decision to grow wheat for himself
and his livestock, and a loan shark’s extortionate
collections from a neighborhood butcher shop. See
Wickard v. Filburn (1942); Perez v. United States
(1971). . . .
The reach of the Federal Government’s

enumerated powers is broader still because the
Constitution authorizes Congress to “make all
Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers.” We
have long read this provision to give Congress
great latitude in exercising its powers: “Let the
spirit of the constitution, are constitutional.”
McCulloch.
Our permissive reading of these powers is

explained in part by a general reticence to
invalidate the acts of the Nation’s elected leaders.
...
Our deference in matters of policy cannot,

however, become abdication in matters of law.
“The powers of the legislature are defined and
limited; and that those limits may not be mistaken,
or forgotten, the constitution is written.” Marbury
v. Madison (1803). Our respect for Congress’s
policy judgments thus can never extend so far as
to disavow restraints on federal power that the
Constitution carefully constructed. . . . And there
can be no question that it is the responsibility of
this Court to enforce the limits on federal power
by striking down acts of Congress that transgress
those limits. Marbury v. Madison.
The questions before us must be considered

against the background of these basic principles. .
..
The Government’s . . . argument is that the

individual mandate is a valid exercise of
Congress’s power under the Commerce Clause
and the Necessary and Proper Clause. According
to the Government, the health care market is
characterized by a significant cost-shifting
problem. Everyone will eventually need health
care at a time and to an extent they cannot
predict, but if they do not have insurance, they
often will not be able to pay for it. Because state
and federal laws nonetheless require hospitals to
provide a certain degree of care to individuals
without regard to their ability to pay, hospitals end
up receiving compensation for only a portion of
the services they provide. To recoup the losses,
hospitals pass on the cost to insurers through
higher rates, and insurers, in turn, pass on the
cost to policy holders in the form of higher
premiums. Congress estimated that the cost of
uncompensated care raises family health
insurance premiums, on average, by over $1,000
per year. . . .
The Government contends that the individual

mandate is within Congress’s power because the
failure to purchase insurance “has a substantial
and deleterious effect on interstate commerce” by
creating the cost-shifting problem. . . .
Given its expansive scope, it is no surprise that

Congress has employed the commerce power in a
wide variety of ways to address the pressing needs
of the time. But Congress has never attempted to
rely on that power to compel individuals not
engaged in commerce to purchase an unwanted
product. Legislative novelty is not necessarily
fatal; there is a first time for everything. But
sometimes “the most telling indication of [a]
severe constitutional problem . . . is the lack of
historical precedent” for Congress’s action. Free
Enterprise Fund v. Public Company Accounting
Oversight Bd. (2010). At the very least, we should
“pause to consider the implications of the
Government’s arguments” when confronted with
such new conceptions of federal power. Lopez.
The Constitution grants Congress the power to

“regulate Commerce.” The power to regulate
commerce presupposes the existence of
commercial activity to be regulated. If the power
to “regulate” something included the power to
create it, many of the provisions in the
Constitution would be superfluous. For example,
the Constitution gives Congress the power to
“coin Money,” in addition to the power to
“regulate the Value thereof.” And it gives
Congress the power to “raise and support Armies”
and to “provide and maintain a Navy,” in addition
to the power to “make Rules for the Government
and Regulation of the land and naval Forces.” If
the power to regulate the armed forces or the
value of money included the power to bring the
subject of the regulation into existence, the
specific grant of such powers would have been
unnecessary. The language of the Constitution
reflects the natural understanding that the power
to regulate assumes there is already something to
be regulated.
Our precedent also reflects this understanding. As

expansive as our cases construing the scope of the
commerce power have been, they all have one
thing in common: They uniformly describe the
power as reaching “activity.” . . .
The individual mandate, however, does not

regulate existing commercial activity. It instead
compels individuals to become active in commerce
by purchasing a product, on the ground that their
failure to do so affects interstate commerce.
Construing the Commerce Clause to permit
Congress to regulate individuals precisely because
they are doing nothing would open a new and
potentially vast domain to congressional authority.
Every day individuals do not do an infinite number
of things. In some cases they decide not to do
something; in others they simply fail to do it.
Allowing Congress to justify federal regulation by
pointing to the effect of inaction on commerce
would bring countless decisions an individual
could potentially make within the scope of federal
regulation, and—under the Government’s theory—
empower Congress to make those decisions for
him.
Applying the Government’s logic to the familiar

case of Wickard v. Filburn shows how far that
logic would carry us from the notion of a
government of limited powers. In Wickard, the
Court famously upheld a federal penalty imposed
on a farmer for growing wheat for consumption on
his own farm. That amount of wheat caused the
farmer to exceed his quota under a program
designed to support the price of wheat by limiting
supply. The Court rejected the farmer’s argument
that growing wheat for home consumption was
beyond the reach of the commerce power. It did so
on the ground that the farmer’s decision to grow
wheat for his own use allowed him to avoid
purchasing wheat in the market. That decision,
when considered in the aggregate along with
similar decisions of others, would have had a
substantial effect on the interstate market for
wheat.
Wickard has long been regarded as “perhaps the

most far reaching example of Commerce Clause
authority over intrastate activity,” Lopez, but the
Government’s theory in this case would go much
further. . . . The farmer in Wickard was at least
actively engaged in the production of wheat, and
the Government could regulate that activity
because of its effect on commerce. The
Government’s theory here would effectively
override that limitation, by establishing that
individuals may be regulated under the Commerce
Clause whenever enough of them are not doing
something the Government would have them do.
Indeed, the Government’s logic would justify a

mandatory purchase to solve almost any problem.
To consider a different example in the health care
market, many Americans do not eat a balanced
diet. That group makes up a larger percentage of
the total population than those without health
insurance. The failure of that group to have a
healthy diet increases health care costs, to a
greater extent than the failure of the uninsured to
purchase insurance. Those increased costs are
borne in part by other Americans who must pay
more, just as the uninsured shift costs to the
insured. Congress addressed the insurance
problem by ordering everyone to buy insurance.
Under the Government’s theory, Congress could
address the diet problem by ordering everyone to
buy vegetables.
People, for reasons of their own, often fail to do

things that would be good for them or good for
society. Those failures—joined with the similar
failures of others—can readily have a substantial
effect on interstate commerce. Under the
Government’s logic, that authorizes Congress to
use its commerce power to compel citizens to act
as the Government would have them act.
That is not the country the Framers of our

Constitution envisioned. . . . Congress already
enjoys vast power to regulate much of what we do.
Accepting the Government’s theory would give
Congress the same license to regulate what we do
not do, fundamentally changing the relation
between the citizen and the Federal Government.
To an economist, perhaps, there is no difference

between activity and inactivity; both have
measurable economic effects on commerce. But
the distinction between doing something and
doing nothing would not have been lost on the
Framers, who were “practical statesmen,” not
metaphysical philosophers. . . . The Framers gave
Congress the power to regulate commerce, not to
compel it, and for over 200 years both our
decisions and Congress’s actions have reflected
this understanding. There is no reason to depart
from that understanding now.
The Government sees things differently. It argues

that because sickness and injury are unpredictable
but unavoidable, “the uninsured as a class are
active in the market for health care, which they
regularly seek and obtain.” The individual
mandate “merely regulates how individuals
finance and pay for that active participation—
requiring that they do so through insurance,
rather than through attempted self-insurance with
the back-stop of shifting costs to others.” . . .
The individual mandate’s regulation of the

uninsured as a class is, in fact, particularly
divorced from any link to existing commercial
activity. The mandate primarily affects healthy,
often young adults who are less likely to need
significant health care and have other priorities
for spending their money. It is precisely because
these individuals, as an actuarial class, incur
relatively low health care costs that the mandate
helps counter the effect of forcing insurance
companies to cover others who impose greater
costs than their premiums are allowed to reflect. If
the individual mandate is targeted at a class, it is
a class whose commercial inactivity rather than
activity is its defining feature.
The Government, however, claims that this does

not matter. The Government regards it as
sufficient to trigger Congress’s authority that
almost all those who are uninsured will, at some
unknown point in the future, engage in a health
care transaction. . . .
The proposition that Congress may dictate the

conduct of an individual today because of
prophesied future activity finds no support in our
precedent. . . .
Everyone will likely participate in the markets for

food, clothing, transportation, shelter, or energy;
that does not authorize Congress to direct them to
purchase particular products in those or other
markets today. The Commerce Clause is not a
general license to regulate an individual from
cradle to grave, simply because he will predictably
engage in particular transactions. . . .
The Government says that health insurance and

health care financing are “inherently integrated.”
But that does not mean the compelled purchase of
the first is properly regarded as a regulation of the
second. No matter how “inherently integrated”
health insurance and health care consumption
may be, they are not the same thing: They involve
different transactions, entered into at different
times, with different providers. And for most of
those targeted by the mandate, significant health
care needs will be years, or even decades, away.
The proximity and degree of connection between
the mandate and the subsequent commercial
activity is too lacking to justify an exception of the
sort urged by the Government. The individual
mandate forces individuals into commerce
precisely because they elected to refrain from
commercial activity. Such a law cannot be
sustained under a clause authorizing Congress to
“regulate Commerce.”
The Government next contends that Congress has

the power under the Necessary and Proper Clause
to enact the individual mandate because the
mandate is an “integral part of a comprehensive
scheme of economic regulation.” . . .
The power to “make all Laws which shall be

necessary and proper for carrying into Execution”
the powers enumerated in the Constitution vests
Congress with authority to enact provisions
“incidental to the [enumerated] power, and
conducive to its beneficial exercise.” McCulloch.
Although the Clause gives Congress authority to
“legislate on that vast mass of incidental powers
which must be involved in the constitution,” it
does not license the exercise of any “great
substantive and independent power[s]” beyond
those specifically enumerated. Instead, the Clause
is “‘merely a declaration, for the removal of all
uncertainty, that the means of carrying into
execution those [powers] otherwise granted are
included in the grant.’” Kinsella v. United States
ex rel. Singleton (1960).
As our jurisprudence under the Necessary and

Proper Clause has developed, we have been very
deferential to Congress’s determination that a
regulation is “necessary.” We have thus upheld
laws that are “‘convenient, or useful’ or
‘conducive’ to the authority’s ‘beneficial
exercise.’” Comstock. But we have also carried out
our responsibility to declare unconstitutional
those laws that undermine the structure of
government established by the Constitution. Such
laws, which are not “consist[ent] with the letter
and spirit of the constitution,” McCulloch, are not
“proper [means] for carrying into Execution”
Congress’s enumerated powers. Rather, they are,
“in the words of The Federalist, ‘merely acts of
usurpation’ which ‘deserve to be treated as such.’”
Printz v. United States (1997).
Applying these principles, the individual mandate

cannot be sustained under the Necessary and
Proper Clause as an essential component of the
insurance reforms. Each of our prior cases
upholding laws under that Clause involved
exercises of authority derivative of, and in service
to, a granted power. For example, we have upheld
provisions permitting continued confinement of
those already in federal custody when they could
not be safely released, Comstock. The individual
mandate, by contrast, vests Congress with the
extraordinary ability to create the necessary
predicate to the exercise of an enumerated power.
This is in no way an authority that is “narrow in
scope,” Comstock, or “incidental” to the exercise
of the commerce power, McCulloch. Rather, such a
conception of the Necessary and Proper Clause
would work a substantial expansion of federal
authority. No longer would Congress be limited to
regulating under the Commerce Clause those who
by some preexisting activity bring themselves
within the sphere of federal regulation. Instead,
Congress could reach beyond the natural limit of
its authority and draw within its regulatory scope
those who otherwise would be outside of it. Even
if the individual mandate is “necessary” to the
Act’s insurance reforms, such an expansion of
federal power is not a “proper” means for making
those reforms effective. . . .
Just as the individual mandate cannot be sustained

as a law regulating the substantial effects of the
failure to purchase health insurance, neither can it
be upheld as a “necessary and proper” component
of the insurance reforms. The commerce power
thus does not authorize the mandate.

JUSTICE SOTOMAYOR joins,
and with whom JUSTICE
BREYER and JUSTICE KAGAN
join . . . concurring in part,
concurring in the judgment in
part, and dissenting in part.
Unlike The Chief Justice, . . . I would hold . . . that
the Commerce Clause authorizes Congress to
enact the minimum coverage provision. . . .
Since 1937, our precedent has recognized

Congress’ large authority to set the Nation’s
course in the economic and social welfare realm.
See United States v. Darby (1941); NLRB v. Jones
& Laughlin Steel Corp. (1937). The Chief Justice’s
crabbed reading of the Commerce Clause harks
back to the era in which the Court routinely
thwarted Congress’ efforts to regulate the national
economy in the interest of those who labor to
sustain it. It is a reading that should not have
staying power.
In enacting the Patient Protection and Affordable

Care Act (ACA), Congress comprehensively
reformed the national market for health-care
products and services. By any measure, that
market is immense. Collectively, Americans spent
$2.5 trillion on health care in 2009, accounting for
17.6% of our Nation’s economy. Within the next
decade, it is anticipated, spending on health care
will nearly double.
The health-care market’s size is not its only

distinctive feature. Unlike the market for almost
any other product or service, the market for
medical care is one in which all individuals
inevitably participate. Virtually every person
residing in the United States, sooner or later, will
visit a doctor or other health-care professional. . . .
When individuals make those visits, they face

another reality of the current market for medical
care: its high cost. In 2010, on average, an
individual in the United States incurred over
$7,000 in health-care expenses. Over a lifetime,
costs mount to hundreds of thousands of dollars. .
..
Although every U.S. domiciliary will incur

significant medical expenses during his or her
lifetime, the time when care will be needed is
often unpredictable. . . .
To manage the risks associated with medical care

—its high cost, its unpredictability, and its
inevitability—most people in the United States
obtain health insurance. . . .
Not all U.S. residents, however, have health

insurance. In 2009, approximately 50 million
people were uninsured, either by choice or, more
likely, because they could not afford private
insurance and did not qualify for government aid.
As a group, uninsured individuals annually
consume more than $100 billion in health-care
services, nearly 5% of the Nation’s total. Over
60% of those without insurance visit a doctor’s
office or emergency room in a given year.
The large number of individuals without health

insurance, Congress found, heavily burdens the
national health-care market. . . .Unlike markets for
most products, however, the inability to pay for
care does not mean that an uninsured individual
will receive no care. Federal and state law, as well
as professional obligations and embedded social
norms, require hospitals and physicians to provide
care when it is most needed, regardless of the
patient’s ability to pay.
As a consequence, medical-care providers deliver

significant amounts of care to the uninsured for
which the providers receive no payment. In 2008,
for example, hospitals, physicians, and other
health-care professionals received no
compensation for $43 billion worth of the $116
billion in care they administered to those without
insurance.
Health-care providers do not absorb these bad

debts. Instead, they raise their prices, passing
along the cost of uncompensated care to those
who do pay reliably: the government and private
insurance companies. In response, private
insurers increase their premiums, shifting the cost
of the elevated bills from providers onto those who
carry insurance. The net result: Those with health
insurance subsidize the medical care of those
without it. As economists would describe what
happens, the uninsured “free ride” on those who
pay for health insurance.
The size of this subsidy is considerable. Congress

found that the cost-shifting just described
“increases family [insurance] premiums by on
average over $1,000 a year.” Higher premiums, in
turn, render health insurance less affordable,
forcing more people to go without insurance and
leading to further cost-shifting. . . .
States cannot resolve the problem of the

uninsured on their own. . . .
Aware that a national solution was required, . . .
Congress enacted the ACA, a solution that retains
a robust role for private insurers and state
governments. To make its chosen approach work,
however, Congress had to use some new tools,
including a requirement that most individuals
obtain private health insurance coverage. . . . [B]y
employing these tools, Congress was able to
achieve a practical, altogether reasonable,
solution. . . .
. . . Congress passed the minimum coverage

provision as a key component of the ACA to
address an economic and social problem that has
plagued the Nation for decades: the large number
of U.S. residents who are unable or unwilling to
obtain health insurance. Whatever one thinks of
the policy decision Congress made, it was
Congress’ prerogative to make it. Reviewed with
appropriate deference, the minimum coverage
provision, allied to the guaranteed-issue and
community-rating prescriptions, should survive
measurement under the Commerce and Necessary
and Proper Clauses.
The Commerce Clause, it is widely acknowledged,

“was the Framers’ response to the central
problem that gave rise to the Constitution itself.”
Under the Articles of Confederation, the
Constitution’s precursor, the regulation of
commerce was left to the States. This scheme
proved unworkable, because the individual States,
understandably focused on their own economic
interests, often failed to take actions critical to the
success of the Nation as a whole.
. . . The Framers’ solution was the Commerce
Clause, which, as they perceived it, granted
Congress the authority to enact economic
legislation “in all Cases for the general Interests
of the Union, and also in those Cases to which the
States are separately incompetent.” . . .
Consistent with the Framers’ intent, we have

repeatedly emphasized that Congress’ authority
under the Commerce Clause is dependent upon
“practical” considerations, including “actual
experience.” We afford Congress the leeway “to
undertake to solve national problems directly and
realistically.”
Until today, this Court’s pragmatic approach to

judging whether Congress validly exercised its
commerce power was guided by two familiar
principles. First, Congress has the power to
regulate economic activities “that substantially
affect interstate commerce.” Gonzales v. Raich
(2005). This capacious power extends even to
local activities that, viewed in the aggregate, have
a substantial impact on interstate commerce.
Second, we owe a large measure of respect to

Congress when it frames and enacts economic and
social legislation. When appraising such
legislation, we ask only (1) whether Congress had
a “rational basis” for concluding that the
regulated activity substantially affects interstate
commerce, and (2) whether there is a “reasonable
connection between the regulatory means selected
and the asserted ends.” In answering these
questions, we presume the statute under review is
constitutional and may strike it down only on a
“plain showing” that Congress acted irrationally.
Straightforward application of these principles

would require the Court to hold that the minimum
coverage provision is proper Commerce Clause
legislation. Beyond dispute, Congress had a
rational basis for concluding that the uninsured,
as a class, substantially affect interstate
commerce. Those without insurance consume
billions of dollars of health-care products and
services each year. Those goods are produced,
sold, and delivered largely by national and
regional companies who routinely transact
business across state lines. The uninsured also
cross state lines to receive care. Some have
medical emergencies while away from home.
Others, when sick, go to a neighboring State that
provides better care for those who have not
prepaid for care.
Not only do those without insurance consume a

large amount of health care each year; critically,
as earlier explained, their inability to pay for a
significant portion of that consumption drives up
market prices, foists costs on other consumers,
and reduces market efficiency and stability. Given
these far-reaching effects on interstate commerce,
the decision to forgo insurance is hardly
inconsequential or equivalent to “doing nothing”;
it is, instead, an economic decision Congress has
the authority to address under the Commerce
Clause.
The minimum coverage provision, furthermore,

bears a “reasonable connection” to Congress’ goal
of protecting the health-care market from the
disruption caused by individuals who fail to obtain
insurance. By requiring those who do not carry
insurance to pay a toll, the minimum coverage
provision gives individuals a strong incentive to
insure. This incentive, Congress had good reason
to believe, would reduce the number of uninsured
and, correspondingly, mitigate the adverse impact
the uninsured have on the national health-care
market.
Congress also acted reasonably in requiring

uninsured individuals, whether sick or healthy,
either to obtain insurance or to pay the specified
penalty. As earlier observed, because every person
is at risk of needing care at any moment, all those
who lack insurance, regardless of their current
health status, adversely affect the price of health
care and health insurance. . . .
Rather than evaluating the constitutionality of the

minimum coverage provision in the manner
established by our precedents, The Chief Justice
relies on a newly minted constitutional doctrine.
The commerce power does not, The Chief Justice
announces, permit Congress to “compe[1]
individuals to become active in commerce by
purchasing a product.”
The Chief Justice’s novel constraint on Congress’

commerce power gains no force from our
precedent and for that reason alone warrants
disapprobation. But even assuming, for the
moment, that Congress lacks authority under the
Commerce Clause to “compel individuals not
engaged in commerce to purchase an unwanted
product,” such a limitation would be inapplicable
here. Everyone will, at some point, consume
health-care products and services. Thus, if The
Chief Justice is correct that an insurance-purchase
requirement can be applied only to those who
“actively” consume health care, the minimum
coverage provision fits the bill. . . .
Our decisions . . . acknowledge Congress’

authority, under the Commerce Clause, to direct
the conduct of an individual today (the farmer in
Wickard, stopped from growing excess wheat; the
plaintiff in Raich, ordered to cease cultivating
marijuana) because of a prophesied future
transaction (the eventual sale of that wheat or
marijuana in the interstate market). Congress’
actions are even more rational in this case, where
the future activity (the consumption of medical
care) is certain to occur, the sole uncertainty
being the time the activity will take place. . . .
In any event, The Chief Justice’s limitation of the

commerce power to the regulation of those
actively engaged in commerce finds no home in
the text of the Constitution or our decisions.
Article I, §8, of the Constitution grants Congress
the power “[t]o regulate Commerce . . . among the
several States.” Nothing in this language implies
that Congress’ commerce power is limited to
regulating those actively engaged in commercial
transactions. . . .
For the reasons explained above, the minimum

coverage provision is valid Commerce Clause
legislation. When viewed as a component of the
entire ACA, the provision’s constitutionality
becomes even plainer.
The Necessary and Proper Clause “empowers

Congress to enact laws in effectuation of its
[commerce] powe[r] that are not within its
authority to enact in isolation.” Hence, “[a]
complex regulatory program . . . can survive a
Commerce Clause challenge without a showing
that every single facet of the program is
independently and directly related to a valid
congressional goal.” “It is enough that the
challenged provisions are an integral part of the
regulatory program and that the regulatory
scheme when considered as a whole satisfies this
test.”
Recall that one of Congress’ goals in enacting the

Affordable Care Act was to eliminate the
insurance industry’s practice of charging higher
prices or denying coverage to individuals with
preexisting medical conditions. The commerce
power allows Congress to ban this practice, a
point no one disputes.
Congress knew, however, that simply barring

insurance companies from relying on an
applicant’s medical history would not work in
practice. Without the individual mandate,
Congress learned, guaranteed-issue and
community-rating requirements would trigger an
adverse-selection death-spiral in the health-
insurance market: Insurance premiums would
skyrocket, the number of uninsured would
increase, and insurance companies would exit the
market. When complemented by an insurance
mandate, on the other hand, guaranteed issue and
community rating would work as intended,
increasing access to insurance and reducing
uncompensated care. The minimum coverage
provision is thus an “essential par[t] of a larger
regulation of economic activity”; without the
provision, “the regulatory scheme [w]ould be
undercut.” Raich. Put differently, the minimum
coverage provision, together with the guaranteed-
issue and community-rating requirements, is
“‘reasonably adapted’ to the attainment of a
legitimate end under the commerce power”: the
elimination of pricing and sales practices that take
an applicant’s medical history into account.
Asserting that the Necessary and Proper Clause

does not authorize the minimum coverage
provision, The Chief Justice focuses on the word
“proper.” A mandate to purchase health insurance
is not “proper” legislation, The Chief Justice
urges, because the command “undermine[s] the
structure of government established by the
Constitution.” If long on rhetoric, The Chief
Justice’s argument is short on substance. . . .
The Chief Justice [does not] pause to explain why

the power to direct either the purchase of health
insurance or, alternatively, the payment of a
penalty collectible as a tax is more far-reaching
than other implied powers this Court has found
meet under the Necessary and Proper Clause.
These powers include the power to enact criminal
laws; the power to imprison, including civil
imprisonment, see, e.g., Comstock; and the power
to create a national bank, see McCulloch.
In failing to explain why the individual mandate
threatens our constitutional order, The Chief
Justice disserves future courts. How is a judge to
decide, when ruling on the constitutionality of a
federal statute, whether Congress employed an
“independent power” or merely a “derivative” one.
Whether the power used is “substantive” or just
“incidental”? The instruction The Chief Justice, in
effect, provides lower courts: You will know it
when you see it. . . .
In the early 20th century, this Court regularly

struck down economic regulation enacted by the
peoples’ representatives in both the States and
the Federal Government. See, e.g., Carter Coal
Co., Dagenhart, Lochner v. New York (1905). The
Chief Justice’s Commerce Clause opinion, and
even more so the joint dissenters’ reasoning, bear
a disquieting resemblance to those long-overruled
decisions.
Joint opinion of JUSTICE

SCALIA, JUSTICE KENNEDY,
JUSTICE THOMAS, and JUSTICE
ALITO, dissenting.
Congress has set out to remedy the problem that
the best health care is beyond the reach of many
Americans who cannot afford it. It can assuredly
do that, by exercising the powers accorded to it
under the Constitution. The question in this case,
however, is whether the complex structures and
provisions of the Patient Protection and Affordable
Care Act go beyond those powers. We conclude
that they do.
. . . What is absolutely clear, affirmed by the text

of the 1789 Constitution, by the Tenth Amendment
ratified in 1791, and by innumerable cases of ours
in the 220 years since, is that there are structural
limits upon federal power—upon what it can
prescribe with respect to private conduct, and
upon what it can impose upon the sovereign
States. . . .
That clear principle carries the day here. The

striking case of Wickard v. Filburn (1942), which
held that the economic activity of growing wheat,
even for one’s own consumption, affected
commerce sufficiently that it could be regulated,
always has been regarded as the ne plus ultra of
expansive Commerce Clause jurisprudence. To go
beyond that, and to say the failure to grow wheat
(which is not an economic activity, or any activity
at all) nonetheless affects commerce and therefore
can be federally regulated, is to make mere
breathing in and out the basis for federal
prescription and to extend federal power to
virtually all human activity. . . .
Article I, §8, of the Constitution gives Congress

the power to “regulate Commerce . . . among the
several States.” The Individual Mandate in the Act
commands that every “applicable individual shall
for each month beginning after 2013 ensure that
the individual, and any dependent of the individual
who is an applicable individual, is covered under
minimum essential coverage.” If this provision
“regulates” anything, it is the failure to maintain
minimum essential coverage. One might argue
that it regulates that failure by requiring it to be
accompanied by payment of a penalty. But that
failure—that abstention from commerce—is not
“Commerce.” To be sure, purchasing insurance is
“Commerce”; but one does not regulate commerce
that does not exist by compelling its existence. . . .
. . . Congress has impressed into service third

parties, healthy individuals who could be but are
not customers of the relevant industry, to offset
the undesirable consequences of the regulation.
Congress’ desire to force these individuals to
purchase insurance is motivated by the fact that
they are further removed from the market than
unhealthy individuals with pre-existing conditions,
because they are less likely to need extensive care
in the near future. If Congress can reach out and
command even those furthest removed from an
interstate market to participate in the market,
then the Commerce Clause becomes a font of
unlimited power, or in Hamilton’s words, “the
hideous monster whose devouring jaws . . . spare
neither sex nor age, nor high nor low, nor sacred
nor profane.” The Federalist No. 3. . . .
Wickard v. Filburn has been regarded as the most

expansive assertion of the commerce power in our
history. A close second is Perez v. United States
(1971), which upheld a statute criminalizing the
eminently local activity of loan-sharking. Both of
those cases, however, involved commercial
activity. To go beyond that, and to say that the
failure to grow wheat or the refusal to make loans
affects commerce, so that growing and lending
can be federally compelled, is to extend federal
power to virtually everything. All of us consume
food, and when we do so the Federal Government
can prescribe what its quality must be and even
how much we must pay. But the mere fact that we
all consume food and are thus, sooner or later,
participants in the “market” for food, does not
empower the Government to say when and what
we will buy. That is essentially what this Act seeks
to do with respect to the purchase of health care.
It exceeds federal power.
What should we make of the Court’s decision

striking down a provision of federal law requiring
individuals to purchase a commercial product? First,
it is important to realize that while Roberts held that
the mandate could not be sustained as an exercise of
congressional commerce power, he did uphold it as a
tax, as we will see in Chapter 8. Moreover, even the
holding on the commerce power may not be so far-
reaching, because Congress has rarely forced people
into commerce.22 Finally, even if Congress does pass
another law of this kind, it is not altogether clear
that the Court would stand by the distinction drawn
by Justice Roberts: it could adopt Ginsburg’s
dissenting position. For, as we have seen, commerce
clause doctrine has not moved in a straight line;
rather, it has varied greatly depending on the
philosophies of the sitting justices.
22 Rarely is not never. For some early examples, see

Einer Elhauge, “If Health Insurance Mandates Are
Unconstitutional, Why Did the Founding Fathers
Back Them?,” New Republic, April 13, 2012.
Commerce Power of the States
Resolving the question of federal power over
interstate and foreign commerce leaves unsettled
the question of state commercial regulation.
Marshall wrote in Gibbons that commerce
completely internal to the state that does not extend
to or affect other states is reserved for state
regulation. This grant of power was substantial prior
to the Civil War, when most commercial activity was
distinctly local and subject to state regulation. But
with the Industrial Revolution and improved
transportation systems, local business activity
quickly became interstate in nature. Finally, the
Supreme Court’s 1937 redefinition of interstate
commerce left little that met Marshall’s notion of
commerce that is “completely internal.”
If the regulation of any business activity that affects

interstate commerce were the exclusive preserve of
the federal government, the role of the states would
be minimal indeed. But this is not the case. The
decisions of the Supreme Court have left a
substantial sphere of authority for the states to
regulate commerce. The dividing line between
federal and state power, however, has varied over
time as the Court has struggled to formulate an
appropriate doctrine to govern this difficult area of
federal–state relations.
Doctrine of Selected
Exclusiveness
Constructing the parameters of state power began in
1829 with the decision in Willson v. Black-Bird Creek
Marsh Company. 23 The dispute involved a Delaware
law that authorized the building of a dam on a creek
to stop water from entering a local marsh. Thompson
Willson owned and operated a vessel that was
federally licensed under the Coastal Licensing Act of
1793, the same legislation under which Thomas
Gibbons had operated his steamboats. Willson
objected to the dam as an impediment to commerce
on a navigable stream. His ship purposefully
rammed the dam, causing it considerable damage.
The dam’s owner took legal action against Willson,
and the state courts ruled against Willson, who
appealed, claiming that the Delaware law
authorizing the dam was in conflict with the
Constitution. He argued that only Congress had the
power to pass a law permitting the construction of
an impediment to commerce on a navigable stream.
23 Disputes over the power of the states to impose

taxes on interstate and foreign commerce actually
had begun two years earlier in Brown v. Maryland
(1827). We discuss the taxation issues in Chapter 8,
where the fiscal authority to tax and spend is our
focus.
Chief Justice Marshall, speaking for the Court,
rejected Willson’s position. The justices concluded
that, in the absence of federal laws to the contrary,
the police powers of the state to regulate for the
health and general welfare of its citizens were
sufficient to authorize the dam. Indeed, Congress
had not enacted any legislation dealing with
commercial streams and the problems associated
with marshland. “If congress had passed any act . . .
the object of which was to control state legislation
over those small navigable creeks into which the tide
flows,” Marshall’s opinion stated, “we should feel not
much difficulty in saying that a state law coming in
conflict with such act would be void.” The Court’s
decision in Willson began to carve out an area of
state authority over commerce that is not purely
intrastate, but where the boundaries of that
authority were not yet settled.
With Marshall’s death in 1835, his successor, Chief

Justice Roger Taney, was left with the task of more
sharply defining the commerce powers of the states.
Taney was far more sympathetic to the states than
Marshall had been, and it is not surprising that the
rulings of the Taney era strike a balance between
federal and state authority. The Taney Court first
grappled with the problem in Mayor of New York v.
Miln (1837), a case that had been carried over from
the last Marshall term.
The dispute arose over the validity of New York’s

Passenger Act of 1824, which was designed to curb
the flow of foreign indigents into the state. The law
required the masters of incoming ships to supply the
mayor of New York with comprehensive information
on all passengers. This material was necessary for
the city to enforce a regulation that allowed it to
exclude people likely to require public assistance.
Ship captains who did not comply were liable for
fines and penalties of $75 per passenger. In addition,
the law required that passengers who were refused
entry be returned to their point of origin at the
shipowner’s expense. George Miln, who had a
financial interest in a ship called The Emily, was
fined when the ship’s master refused to comply with
the law. Miln protested the stiff $7,500 penalty on
the ground that regulating foreign commerce was
the exclusive jurisdiction of Congress, leaving no
room for state action.
The Supreme Court upheld the New York law. In

doing so, the justices did everything possible to
avoid the complicated commerce issues the case
presented. Instead, the Court followed the lead
taken by Marshall in Willson and focused on the
state’s police powers. According to Justice Philip
Barbour’s majority opinion, the states have the
sovereign power to regulate for the well-being of
their residents. That power is complete and
unqualified. In the absence of federal commercial
legislation to the contrary, there is nothing to bar the
state from using its police authority, even if it affects
foreign commerce as in the matter here. In fact,
Barbour argued that it was the duty of the state to
protect its citizens from the financial obligations that
would result from admitting “multitudes of poor
persons, who come from foreign countries without
possessing the means of supporting themselves.” As
a consequence, a state may use its police powers to
ward off the “moral pestilence of paupers,
vagabonds, and possibly convicts.” The Court has
long since abandoned this attitude toward the
poor.24
24 Edwards v. California (1941) effectively overruled

Miln. In Edwards the justices struck down an “anti-
Okie” law passed to discourage large numbers of
people from Oklahoma and other states from moving
into California in an effort to escape the economic
depression caused by the effects of the Dust Bowl in
the central states. The Court found that the law
violated the right of citizens to travel freely among
the various states.
What the Miln decision revealed is the Taney Court’s

readiness to support state regulations in the absence
of federal action. This thinking was consistent with
the dual federalism philosophy of that time (see
Chapter 6). But because the Court relied so heavily
on the police powers, it failed to develop a complete
doctrine of state commercial authority.
The License Cases of 1847 further revealed the

difficulty the Taney Court had in crafting an
adequate policy for the commerce powers of the
states. These appeals came from New Hampshire,
Rhode Island, and Massachusetts, where the
legislatures had passed statutes licensing and taxing
alcoholic beverages.25 The regulations applied to
domestic liquors as well as imported alcoholic
beverages. Once again the Court upheld the laws as
exercises of state police power, but the justices were
badly divided as to rationale. No majority opinion
was reached, an unusual occurrence for that time. In
fact, six justices wrote opinions. All supported the
state laws, but the highly fractionalized opinions
provided no authoritative guidance for the states.
25 The License Cases (1847) is the collective name

given to the cases Peirce v. New Hampshire,
Fletcher v. Rhode Island, and Thurlow v.
Massachusetts.
Two years later the Court heard arguments in Smith

v. Turner and Norris v. Boston, which are known as
the Passenger Cases (1849). These appeals tested
the constitutionality of New York and Massachusetts
laws seeking to regulate foreigners coming into the
United States. The legislation was intended to
discourage indigent immigrants and to provide for
the treatment of individuals who arrived for entry in
a diseased condition. The laws included provisions
for taxing, bonding, and record keeping. The New
York law taxed each incoming ship $1.00–$1.50 per
passenger. These fees were used to fund a hospital
to treat arriving immigrants. The Massachusetts law
prohibited the importation of passengers who were
indigent or had physical or mental disabilities. In
addition, Massachusetts charged arriving ships
$2.00 for each passenger, with the proceeds going to
a fund for immigrants who later required public
assistance. George Smith and James Norris were
British shipmasters. Smith landed in New York City
with 290 immigrant passengers, and Norris docked
in Boston with 19. Both protested the
constitutionality of the taxes on commerce clause
grounds.
The Court found these cases difficult to resolve. In

fact, they were argued three times, and still the
justices had trouble reaching a majority decision.
Finally, by a 5–4 vote, the Court struck down the
laws as being in conflict with the authority of
Congress to regulate foreign commerce. The five
justices in the majority each wrote an opinion. The
four dissenters, led by Taney, adhered to the view
that such regulations to protect a state’s citizens
from indigent and sick immigrants were within the
states’ police powers.
The Passenger Cases left the law unsettled. Not only

was the decision in conflict with previous rulings,
but also the Court had failed to produce an opinion
supported by a majority of the justices. This situation
demanded a ruling that would authoritatively explain
the constitutional division between federal and state
commerce powers, but instead many questions
remained unanswered. Did Congress have the
exclusive power to regulate interstate and foreign
commerce, leaving no authority for the states? Could
the states regulate such commerce only if Congress
had failed to enact any relevant legislation? Was the
commerce power concurrent? Could Congress
delegate its regulatory power to the states? Three
years after the Passenger Cases, in Cooley v. Board
of Wardens (1852), the justices issued a ruling that
resolved some of the confusion.
Philadelphia’s ordinance regulating the use of pilots

in the city’s harbor was challenged as an
infringement on the commerce power of the federal
government. The Supreme Court upheld the
ordinance in Cooley v. Board of Wardens, stating that
some aspects of interstate and foreign commerce are
essentially local and can be regulated locally if
Congress has not already passed laws to the
contrary.
Library of Congress
Cooley v. Board of Wardens 53 U.S. (12 How.) 299

(1852)
court/53/299.html
Vote: 7 (Catron, Curtis, Daniel, Grier, McKinley,

Nelson, Taney)
2 (McLean, Wayne)
OPINION OF THE COURT: Curtis

CONCURRING OPINION: Daniel
DISSENTING OPINION: Mclean
Facts:
Based on its power over interstate and foreign
commerce, Congress passed a statute in 1789
pertaining to the regulation of ports. The
legislation said that until Congress acted
otherwise, state and local authorities would
continue to control the nation’s ports and harbors.
In 1803 Pennsylvania passed a port regulation law
requiring that all vessels hire a local pilot to guide
ships in and out of the Port of Philadelphia.
Shipowners who did not comply were fined. The
money from these fines was placed in a
“charitable fund for the distressed or decayed
pilots, their widows and children.”
Aaron Cooley owned a vessel that sailed into
Philadelphia without hiring a local pilot. The port’s
Board of Wardens took legal action against him,
and Cooley was fined. He responded by claiming
that the Pennsylvania law was unconstitutional;
only Congress, he asserted, could regulate the
port because the harbor was an integral part of
interstate and foreign commerce, and the states
had no constitutional authority to set regulations
for such commerce. By implication, Cooley also
was challenging the 1789 act of Congress that had
delegated the powers to the states. The
Pennsylvania Supreme Court upheld the law and
the fine, and Cooley pressed his case to the U.S.
Supreme Court.
Arguments:
For the plaintiff in error, Aaron B.
Cooley:
The Pennsylvania law violates the commerce
clause because the power to regulate
interstate and foreign commerce is exclusive to
Congress. Regulations of navigation are
regulations of commerce and within the
jurisdiction of Congress.
In legislation of the type at issue here,
Congress can neither confer on the states
powers not given them by the Constitution nor
enable them to legislate on subjects clearly
within the powers of Congress.
For the defendants in error, the
Board of Wardens of the Port of
Philadelphia et al.:
The Pennsylvania law does not violate the
commerce clause because the law does not
regulate commerce. It was passed pursuant to
the exercise of powers by the state—powers
that the states never surrendered: to control
their ports and to protect the property and
lives of their citizens.
The law is local in character and is an exercise
of state police power designed to aid, not to
regulate, commerce. See City of New York v.
Miln.
Even if the law is a regulation of commerce,
the power of Congress is not exclusive.
Because Congress has passed no conflicting
legislation, the state law is valid.
Mr. Justice Curtis Delivered the Opinion of the

Court.
That the power to regulate commerce includes the

regulation of navigation, we consider settled. And
when we look to the nature of the service
performed by pilots, to the relations which that
service and its compensations bear to navigation
between the several States, and between the ports
of the United States and foreign countries, we are
brought to the conclusion, that the regulation of
the qualifications of pilots, of the modes and times
of offering and rendering their services, of the
responsibilities which shall rest upon them, of the
powers they shall possess, of the compensation
they may demand, and of the penalties by which
their rights and duties may be enforced, do
constitute regulations of navigation, and
consequently of commerce, within the just
meaning of this clause of the Constitution. . . .
Nor should it be lost sight of, that this subject of

the regulation of pilots and pilotage has an
intimate connection with, and an important
relation to the general subject of commerce with
foreign nations and among the several States,
over which it was one main object of the
Constitution to create a national control. Conflicts
between the laws of neighboring States, and
discriminations favorable or adverse to commerce
with particular foreign nations, might be created
by State laws regulating pilotage, deeply affecting
that equality of commercial rights, and that
freedom from State interference, which those who
formed the Constitution were so anxious to
secure, and which the experience of more than
half a century has taught us to value so highly. . . .
It becomes necessary, therefore, to consider

whether this law of Pennsylvania, being a
regulation of commerce, is valid.
The act of Congress of the 7th of August, 1789,

sect. 4, is as follows:
“That all pilots in the bays, inlets, rivers,

harbors, and ports of the United States shall
continue to be regulated in conformity with
the existing laws of the States, respectively,
wherein such pilots may be, or with such laws
as the States may respectively hereafter enact
for the purpose, until further legislative
provision shall be made by Congress.”
If the law of Pennsylvania, now in question, had

been in existence at the date of this act of
Congress, we might hold it to have been adopted
by Congress, and thus made a law of the United
States, and so valid. Because this act does, in
effect, give the force of an act of Congress, to the
then existing State laws on this subject, so long as
they should continue unrepealed by the State
which enacted them.
But the law on which these actions are founded

was not enacted till 1803. What effect then can be
attributed to so much of the act of 1789, as
declares, that pilots shall continue to be regulated
in conformity, “with such laws as the States may
respectively hereafter enact for the purpose, until
further legislative provision shall be made by
Congress”?
If the States were divested of the power to

legislate on this subject by the grant of the
commercial power to Congress, it is plain this act
could not confer upon them power thus to
legislate. If the Constitution excluded the States
from making any law regulating commerce,
certainly Congress cannot regrant, or in any
manner reconvey to the States that power. And yet
this act of 1789 gives its sanction only to laws
enacted by the States. This necessarily implies a
constitutional power to legislate; for only a rule
created by the sovereign power of a State acting
in its legislative capacity, can be deemed a law,
enacted by a State; and if the State has so limited
its sovereign power that it no longer extends to a
particular subject, manifestly it cannot, in any
proper sense, be said to enact laws thereon.
Entertaining these views we are brought directly
and unavoidably to the consideration of the
question, whether the grant of the commercial
power to Congress, did per se deprive the States
of all power to regulate pilots. This question has
never been decided by this court, nor, in our
judgment, has any case depending upon all the
considerations which must govern this one, come
before this court. The grant of commercial power
to Congress does not contain any terms which
expressly exclude the States from exercising an
authority over its subject matter. If they are
excluded it must be because the nature of the
power, thus granted to Congress, requires that a
similar authority should not exist in the States. If
it were conceded on the one side, that the nature
of this power, like that to legislate for the District
of Columbia, is absolutely and totally repugnant to
the existence of similar power in the States,
probably no one would deny that the grant of the
power to Congress, as effectually and perfectly
excludes the States from all future legislation on
the subject, as if express words had been used to
exclude them. And on the other hand, if it were
admitted that the existence of this power in
Congress, like the power of taxation, is compatible
with the existence of a similar power in the States,
then it would be in conformity with the
contemporary exposition of the Constitution
(Federalist, No. 32) and with the judicial
construction, given from time to time by this
court, after the most deliberate consideration, to
hold that the mere grant of such a power to
Congress, did not imply a prohibition on the States
to exercise the same power; that it is not the mere
existence of such a power, but its exercise by
Congress, which may be incompatible with the
exercise of the same power by the States, and that
the States may legislate in the absence of
congressional regulations.
The diversities of opinion, therefore, which have

existed on this subject, have arisen from the
different views taken of the nature of this power.
But when the nature of a power like this is spoken
of, when it is said that the nature of the power
requires that it should be exercised exclusively by
Congress, it must be intended to refer to the
subjects of that power, and to say they are of such
a nature as to require exclusive legislation by
Congress. Now the power to regulate commerce,
embraces a vast field, containing not only many,
but exceedingly various subjects, quite unlike in
their nature; some imperatively demanding a
single uniform rule, operating equally on the
commerce of the United States in every port; and
some, like the subject now in question, as
imperatively demanding that diversity, which
alone can meet the local necessities of navigation.
Either absolutely to affirm, or deny that the nature

of this power requires exclusive legislation by
Congress, is to lose sight of the nature of the
subjects of this power, and to assert concerning all
of them, what is really applicable but to a part.
Whatever subjects of this power are in their
nature national, or admit only of one uniform
system, or plan of regulation, may justly be said to
be of such a nature as to require exclusive
legislation by Congress. That this cannot be
affirmed of laws for the regulation of pilots and
pilotage is plain. The act of 1789 contains a clear
and authoritative declaration by the first
Congress, that the nature of this subject is such,
that until Congress should find it necessary to
exert its power, it should be left to the legislation
of the States; that it is local and not national; that
it is likely to be the best provided for, not by one
system, or plan of regulations, but by as many as
the legislative discretion of the several States
should deem applicable to the local peculiarities of
the ports within their limits.
Viewed in this light, so much of this act of 1789 as

declares that pilots shall continue to be regulated
“by such laws as the States may respectively
hereafter enact for that purpose,” instead of being
held to be inoperative, as an attempt to confer on
the States a power to legislate, of which the
Constitution had deprived them, is allowed an
appropriate and important signification. It
manifests the understanding of Congress, at the
outset of the government, that the nature of this
subject is not such as to require its exclusive
legislation. The practice of the States, and of the
national government, has been in conformity with
this declaration, from the origin of the national
government to this time; and the nature of the
subject when examined, is such as to leave no
doubt of the superior fitness and propriety, not to
say the absolute necessity, of different systems of
regulation, drawn from local knowledge and
experience, and conformed to local wants. How
then can we say, that by the mere grant of power
to regulate commerce, the States are deprived of
all the power to legislate on this subject, because
from the nature of the power the legislation of
Congress must be exclusive. . . .
It is the opinion of a majority of the court that the

mere grant to Congress of the power to regulate
commerce, did not deprive the States of power to
regulate pilots, and that although Congress has
legislated on this subject, its legislation manifests
an intention, with a single exception, not to
regulate this subject, but to leave its regulation to
the several States. To these precise questions,
which are all we are called on to decide, this
opinion must be understood to be confined. It does
not extend to the question what other subjects,
under the commercial power, are within the
exclusive control of Congress, or may be regulated
by the States in the absence of all congressional
legislation; nor to the general question how far
any regulation of a subject by Congress, may be
deemed to operate as an exclusion of all
legislation by the States upon the same subject.
We decide the precise questions before us, upon
what we deem sound principles, applicable to this
particular subject in the state in which the
legislation of Congress has left it. We go no
further. . . .
We are of opinion that this State law was enacted

by virtue of a power, residing in the State to
legislate; that it is not in conflict with any law of
Congress; that it does not interfere with any
system which Congress has established by making
regulations, or by intentionally leaving individuals
to their own unrestricted action; that this law is
therefore valid, and the judgment of the Supreme
Court of Pennsylvania in each case must be
affirmed.
Justice Benjamin Curtis’s opinion in Cooley nicely

outlines the basic constitutional principles governing
the state’s power to regulate commerce. From this
decision and those that preceded it, we can begin to
build some understanding of how far the states may
go in regulating commercial enterprise:
1. The states retain the power to regulate purely

intrastate commerce.
2. Congress has the power to regulate interstate and
foreign commerce. When it exercises this power,
any contrary state laws are preempted.
3. The power of Congress to regulate interstate and
foreign commerce is exclusive over those
elements of commercial activity that are national
in scope or require uniform regulation.
4. Those elements of interstate and foreign
commerce that are not national in scope or do not
require uniformity, and that have not been
regulated by Congress, may be subject to state
authority, including the states’ police powers.
This division of authority is known as the doctrine of

selected exclusiveness. It designates certain aspects
of interstate and foreign commerce over which the
powers of Congress are exclusive, allowing no state
action. This exclusiveness, however, is not complete;
in the absence of federal legislation, states may
regulate some local business activity affecting
interstate commerce. The regulation of the
Philadelphia port is an obvious part of interstate and
foreign commerce where local harbor conditions
require state supervision.
State Burdens on Interstate

Commerce: The Dormant
Commerce Clause
Under the Articles of Confederation the states often
imposed protective barriers that obstructed
interstate business activity and impeded the growth
of the national economy. To protect against such
state policies, the framers gave Congress the
authority to regulate interstate and foreign
commerce. The goal was to promote free and robust
commercial activity. Under the doctrine of selective
exclusiveness, however, the states retained some
powers to regulate commerce and potentially could
use those powers to thwart the purposes of the
commerce clause.
In 1803 John Marshall, writing in Marbury v.

Madison, declared, “Affirmative words are often, in
their operation, negative of other objects than those
affirmed.” Almost two centuries later, Justice John
Paul Stevens echoed this proposition, noting in Quill
Corp. v. North Dakota (1992), “[T]he Commerce
Clause is more than an affirmative grant of power; it
has a negative sweep as well.” Over the years the
justices have often applied this principle to the state
regulation of commercial activity: the affirmative
grant of power to the federal government to regulate
interstate and foreign commerce implies that the
states are prohibited from regulating in ways that
are detrimental to the national economy—even if
Congress does not explicitly bar them from doing so.
The Court, therefore, creates a balancing situation.
In the absence of federal laws to the contrary, states
for valid reasons may regulate local commercial
activities, but those regulations may not negatively
and unreasonably affect interstate commerce.
The justices refer to this interpretation as the

“dormant” or “negative” commerce clause. This
jurisprudence recognizes that although the
commerce clause is a positive grant of power to the
federal government, it carries with it a negative
command against certain state actions. The Court
has been particularly concerned with state policies
that either burden interstate and foreign commerce
or discriminate against them in favor of state
interests. Applying the dormant commerce clause
approach, such state regulations are contrary to the
Constitution.
State Burdens on Interstate
Commerce.
Among the essentially local aspects of interstate
commerce are matters of public safety. Interstate
trucking provides a good illustration. The use of
trucks for the transportation of goods is an integral
part of interstate commerce, but trucks use local
roads that are the state’s concern. One of the
primary elements of a state’s police powers is
regulation to ensure the safety of its citizens, and
safety regulations may impose a burden on
The Supreme Court addressed this conflict in 1938

in South Carolina State Highway Department v.
Barnwell Brothers. For purposes of public safety
and to prevent damage to the state’s highways, the
South Carolina legislature passed a statute
prohibiting certain trucks from using the highways.
No truck with a gross weight in excess of twenty
thousand pounds or a width greater than ninety
inches was permitted. Barnwell Brothers Trucking
Company challenged the regulation as an
unreasonable burden on interstate commerce.
Evidence presented at trial showed that between 85
percent and 90 percent of all interstate trucks were
ninety-six inches wide and weighed more than the
prescribed limit. Only four other states had weight
limits as low as South Carolina’s, and none had
width restrictions as severe. Based on this
information, the trial court ruled that the state law
was an unconstitutional burden on the flow of
The Supreme Court reversed. Justice Stone’s opinion

for the Court noted that “[t]he commerce clause, by
its own force, prohibits discrimination against
interstate commerce, whatever its form or method.”
States consequently are prohibited from giving a
preference to intrastate businesses at the expense of
interstate commerce or placing unreasonable
burdens on out-of-state businesses. Stone, however,
wrote, “There are matters of local concern, the
regulation of which unavoidably involves some
regulation of interstate commerce but which,
because of their local character and their number
and diversity, may never be fully dealt with by
Congress.” The regulation of such matters, in the
absence of federal legislation, is best left to the
states. Congress has recognized this situation by
allowing state and local governments to have a say
in the regulation of highways, ports, harbors, rivers,
and docks. Congress also has not prohibited certain
quarantine laws imposed by the states. Naturally,
Congress may act in any of these areas when it
determines that uniform national legislation is
required.
In their 7–0 decision the justices held that South

Carolina’s regulation of trucks using the state
highways fell into this category. Because of an
absence of federal legislation over highway safety
and because the state regulations applied to vehicles
in intra- and interstate commerce equally, the state
law was not in violation of the Constitution.
Still, Barnwell Brothers left a number of issues

unresolved: How far may a state go in regulating
interstate commerce for safety purposes? How much
of a burden may be imposed on the free flow of
commerce among the states to achieve greater
safety? Were the highways, which the states built,
owned, and maintained, a special case, or did state
authority similarly extend to other areas of interstate
commerce? The justices took another look at these
issues in Southern Pacific Company v. Arizona
(1945). Once again Stone wrote the opinion for the
Court, but this time the outcome was different. Was
Southern Pacific consistent with Barnwell Brothers,
or did the Court modify its position?
Southern Pacific Company v. Arizona 325 U.S. 761

(1945)
court/325/761.html
Vote: 7 (Frankfurter, Jackson, Murphy, Reed,

Roberts, Rutledge, Stone)
2 (Black, Douglas)
OPINION FOR THE COURT: Stone

DISSENTING OPINIONS: Black, Douglas
Facts:
On May 16, 1912, the Arizona legislature passed
the Train Limit Law, making it unlawful for any
individual or corporation to operate within the
state a train with more than fourteen passenger
cars or seventy freight cars. Violators were
subject to fines. In 1940 the state brought a legal
action against Southern Pacific Company, which
acknowledged operating passenger and freight
trains in excess of the state limits. The company
argued that the state law was unconstitutional
because it conflicted with the commerce clause.
The jury returned a verdict for the company, but

the state supreme court reversed, holding that
Arizona was free to enact such regulations
because Congress had not legislated the length of
railroad trains. The Arizona law was a safety
measure that could be justified as an exercise of
the state’s police powers to act in the interests of
local health, safety, and well-being. The railroad
appealed the ruling to the U.S. Supreme Court,
arguing that the state law placed an undue burden
on the flow of interstate commerce. In presenting
its case, Southern Pacific enjoyed the support of
two powerful allies: the U.S. government and the
Association of American Railroads submitted
amicus curiae briefs attacking the constitutionality
of the state law.
Arguments:
For the appellant, Southern Pacific
Company:
The state law violates the commerce clause
because it regulates a matter of national, not
solely local, concern. Only Congress can
determine whether a uniform system of
regulation is needed, and only Congress can
enact such measures. The power to regulate
commerce is necessarily exclusive when it is
exercised over subjects that are national in
character or require a single plan of regulation.
The Court must strike down the state law
because it frustrates the principal goals of the
commerce clause as outlined in previous
decisions: to preserve the interests of the
nation against conflicting and discriminatory
state legislation and to guard against
obstructions of the free flow of commerce. This
law imposes a serious burden on interstate
commerce by hindering efficient train service.
The law invades a field of regulation of
commerce that Congress fully occupies, as
previous federal laws regulating trains indicate.
Congressional silence or inaction over the
matter here is the same as a declaration that
interstate commerce should remain free and
unobstructed.
For the appellee, state of

Arizona:
The state law does not invade a national field
exclusively reserved to Congress. It has a real
relation to the safety and protection of
Arizona’s citizens and is not an area in which
Congress has regulated.
It is up to Congress, not the courts, to
determine whether a state can exercise its
reserved police powers in a way that might
indirectly affect interstate commerce. Congress
does this by permissibly occupying a field
under its commerce power, which it has not
done here. But even the courts have
recognized that states have legitimately
regulated in areas that require regulation until
Congress intervenes.
Whether the state law imposes an
impermissible burden on interstate commerce
is a question Congress, not the courts, should
address through appropriate legislative means.
Even so, the financial burden is not as
substantial as appellant contends.
Mr. Chief Justice Stone Delivered the Opinion

of the Court.
Although the commerce clause conferred on the

national government power to regulate commerce,
its possession of the power does not exclude all
state power of regulation. Ever since Willson v.
Black-Bird Creek Marsh Co. and Cooley v. Board of
Wardens, it has been recognized that, in the
absence of conflicting legislation by Congress,
there is a residuum of power in the state to make
laws governing matters of local concern which
nevertheless in some measure affect interstate
commerce or even, to some extent, regulate it.
Thus the states may regulate matters which,
because of their number and diversity, may never
be adequately dealt with by Congress. Cooley v.
Board of Wardens, South Carolina Highway Dept.
v. Barnwell Bros. When the regulation of matters
of local concern is local in character and effect,
and its impact on the national commerce does not
seriously interfere with its operation, and the
consequent incentive to deal with them nationally
is slight, such regulation has been generally held
to be within state authority.
But ever since Gibbons v. Ogden, the states have

not been deemed to have authority to impede
substantially the free flow of commerce from state
to state, or to regulate those phases of the
national commerce which, because of the need of
national uniformity, demand that their regulation,
if any, be prescribed by a single authority.
Whether or not this long-recognized distribution of
power between the national and the state
governments is predicated upon the implications
of the commerce clause itself, or upon the
presumed intention of Congress, where Congress
has not spoken, the result is the same.
In the application of these principles some

enactments may be found to be plainly within and
others plainly without state power. But between
these extremes lies the infinite variety of cases, in
which regulation of local matters may also operate
as a regulation of commerce, in which
reconciliation of the conflicting claims of state and
national power is to be attained only by some
appraisal and accommodation of the competing
demands of the state and national interests
involved.
For a hundred years it has been accepted
constitutional doctrine that the commerce clause,
without the aid of Congressional legislation, thus
affords some protection from state legislation
inimical to the national commerce and that in such
cases, where Congress has not acted, this Court,
and not the state legislature, is under the
commerce clause the final arbiter of the
competing demands of state and national
interests.
Congress has undoubted power to redefine the

distribution of power over interstate commerce. It
may either permit the states to regulate the
commerce in a manner which would otherwise not
be permissible, or exclude state regulation even of
matters of peculiarly local concern which
nevertheless affect interstate commerce.
But in general Congress has left it to the courts to

formulate the rules thus interpreting the
commerce clause in its application, doubtless
because it has appreciated the destructive
consequences to the commerce of the nation if
their protection were withdrawn, and has been
aware that in their application state laws will not
be invalidated without the support of relevant
factual material which will “afford a sure basis”
for an informed judgment. Meanwhile, Congress
has accommodated its legislation, as have the
states, to these rules as an established feature of
our constitutional system. There has thus been left
to the states wide scope for the regulation of
matters of local state concern, even though it in
some measure affects the commerce, provided it
does not materially restrict the free flow of
commerce across state lines, or interfere with it in
matters with respect to which uniformity of
regulation is of predominant national concern.
Hence the matters for ultimate determination here

are the nature and extent of the burden which the
state regulation of interstate trains, adopted as a
safety measure, imposes on interstate commerce,
and whether the relative weights of the state and
national interests involved are such as to make
inapplicable the rule, generally observed, that the
free flow of interstate commerce and its freedom
from local restraints in matters requiring
uniformity of regulation are interests safeguarded
by the commerce clause from state interference. .
..
The findings show that the operation of long

trains, that is trains of more than fourteen
passenger and more than seventy freight cars, is
standard practice over the main lines of the
railroads of the United States, and that, if the
length of trains is to be regulated at all, national
uniformity in the regulation adopted, such as only
Congress can prescribe, is practically
indispensable to the operation of an efficient and
economical national railway system. On many
railroads passenger trains of more than fourteen
cars and freight trains of more than seventy cars
are operated, and on some systems freight trains
are run ranging from one hundred and twenty-five
to one hundred and sixty cars in length. Outside of
Arizona, where the length of trains is not
restricted, appellant runs a substantial proportion
of long trains. In 1939 on its comparable route for
through traffic through Utah and Nevada from 66
to 85% of its freight trains were over seventy cars
in length and over 43% of its passenger trains
included more than fourteen passenger cars.
In Arizona, approximately 93% of the freight

traffic and 95% of the passenger traffic is
interstate. Because of the Train Limit Law
appellant is required to haul over 30% more trains
in Arizona than would otherwise have been
necessary. The record shows a definite
relationship between operating costs and the
length of trains, the increase in length resulting in
a reduction of operating costs per car. The
additional cost of operation of trains complying
with the Train Limit Law in Arizona amounts for
the two railroads traversing that state to about
$1,000,000 a year. The reduction in train lengths
also impedes efficient operation. More locomotives
and more manpower are required; the necessary
conversion and reconversion of train lengths at
terminals and the delay caused by breaking up
and remaking long trains upon entering and
leaving the state in order to comply with the law,
delays the traffic and diminishes its volume moved
in a given time, especially when traffic is heavy. . .
.
The unchallenged findings leave no doubt that the

Arizona Train Limit Law imposes a serious burden
on the interstate commerce conducted by
appellant. It materially impedes the movement of
appellant’s interstate trains through that state and
interposes a substantial obstruction to the
national policy proclaimed by Congress, to
promote adequate, economical and efficient
railway transportation service. Enforcement of the
law in Arizona, while train lengths remain
unregulated or are regulated by varying standards
in other states, must inevitably result in an
impairment of uniformity of efficient railroad
operation because the railroads are subjected to
regulation which is not uniform in its application.
Compliance with a state statute limiting train
lengths requires interstate trains of a length
lawful in other states to be broken up and
reconstituted as they enter each state according
as it may impose varying limitations upon train
lengths. The alternative is for the carrier to
conform to the lowest train limit restriction of any
of the states through which its trains pass, whose
laws thus control the carriers’ operations both
within and without the regulating state.
Although the seventy car maximum for freight

trains is the limitation which has been commonly
proposed, various bills introduced in the state
legislatures provided for maximum freight train
lengths of from fifty to one hundred and twenty-
five cars, and maximum passenger train lengths of
from ten to eighteen cars. With such laws in force
in states which are interspersed with those having
no limit on train lengths, the confusion and
difficulty with which interstate operations would
be burdened under the varied system of state
regulation and the unsatisfied need for uniformity
in such regulation, if any, are evident. . . .
We think, as the trial court found, that the Arizona

Train Limit Law, viewed as a safety measure,
affords at most slight and dubious advantage, if
any, over unregulated train lengths, because it
results in an increase in the number of trains and
train operations and the consequent increase in
train accidents of a character generally more
severe than those due to slack action. Its
undoubted effect on the commerce is the
regulation, without securing uniformity, of the
length of trains operated in interstate commerce,
which lack is itself a primary cause of preventing
the free flow of commerce by delaying it and by
substantially increasing its cost and impairing its
efficiency. In these respects the case differs from
those where a state, by regulatory measures
affecting the commerce, has removed or reduced
safety hazards without substantial interference
with the interstate movement of trains. Such are
measures abolishing the car stove, requiring
locomotives to be supplied with electric
headlights, providing for full train crews, and for
the equipment of freight trains with cabooses. . . .
Here we conclude that the state does go too far.

Its regulation of train lengths, admittedly
obstructive to interstate train operation, and
having a seriously adverse effect on transportation
efficiency and economy, passes beyond what is
plainly essential for safety since it does not appear
that it will lessen rather than increase the danger
of accident. Its attempted regulation of the
operation of interstate trains cannot establish
nationwide control such as is essential to the
maintenance of an efficient transportation system,
which Congress alone can prescribe. The state
interest cannot be preserved at the expense of the
national interest by an enactment which regulates
interstate train lengths without securing such
control, which is a matter of national concern. To
this the interest of the state here asserted is
subordinate. . . .
Reversed.
MR. JUSTICE BLACK,

dissenting.
[T]he determination of whether it is in the interest
of society for the length of trains to be
governmentally regulated is a matter of public
policy. Someone must fix that policy—either the
Congress, or the state, or the courts. A century
and a half of constitutional history and
government admonishes this Court to leave that
choice to the elected legislative representatives of
the people themselves, where it properly belongs
both on democratic principles and the
requirements of efficient government. . . .
Representatives elected by the people to make

their laws, rather than judges appointed to
interpret those laws, can best determine the
policies which govern the people. That at least is
the basic principle on which our democratic
society rests. I would affirm the judgment of the
Supreme Court of Arizona.
MR. JUSTICE DOUGLAS,

dissenting.
I have expressed my doubts whether the courts
should intervene in situations like the present and
strike down state legislation on the grounds that it
burdens interstate commerce. My view has been
that the courts should intervene only where the
state legislation discriminated against interstate
commerce or was out of harmony with laws which
Congress had enacted. It seems to me particularly
appropriate that that course be followed here. For
Congress has given the Interstate Commerce
Commission broad powers of regulation over
interstate carriers. The Commission is the national
agency which has been entrusted with the task of
promoting a safe, adequate, efficient, and
economical transportation service. It is the expert
on this subject. It is in a position to police the
field. And if its powers prove inadequate for the
task, Congress, which has paramount authority in
this field, can implement them.
Chief Justice Stone’s opinion in Southern Pacific is a

strong declaration of how state requirements affect
the flow of interstate traffic and commerce. Under
the dormant commerce clause doctrine, the
Constitution leaves no room for state legislation that
is inimical to national commerce, even if the subject
of that regulation has not been touched by federal
legislation. A state law that obstructs interstate
commerce, going beyond what is clearly necessary
for safety regulation, cannot stand in the face of the
commerce clause.
State Discrimination against

Interstate Commerce.
Even though the Court’s decisions in Barnwell
Brothers and Southern Pacific deal with
transportation and distribution activities, the
principles set down in those cases also apply to state
regulations that place burdens on other aspects of
interstate commerce, especially a state’s attempt to
protect local businesses by discriminating against
interstate commerce. In Hunt v. Washington State
Apple Advertising Commission the justices
confronted a state regulation that restricted the kind
of information that could be displayed on containers
of out-of-state agricultural products. The state
claimed that the rule was an exercise of the police
powers to protect its citizens from fraud and
deception. Does the state make a convincing case, or
is the regulation nothing more than a way to prevent
interstate commerce from having a negative impact
on local producers?

Commission 432 U.S. 333 (1977)
court/432/333.html


Powell, Stevens, Stewart, White)
0
NOT PARTICIPATING: Rehnquist
Facts:
In 1972 the North Carolina Board of Agriculture
adopted a regulation that required all closed
containers of apples shipped into the state to
display either the U.S. Department of Agriculture
(USDA) grade or nothing at all. It barred
information based on the grading systems of the
states in which the apples were grown. The reason
for the regulation, according to North Carolina,
which has a substantial apple industry, was to
ensure that all apples coming into the state used
the same grading system, thereby removing the
danger that multiple systems would confuse
purchasers and lead to deception and fraud in the
market. No other state had such a regulation.
Through their industry advertising commission,

apple growers in Washington State challenged the
North Carolina regulations. Washington grows
approximately 30 percent of the nation’s apples
and is responsible for roughly half of all apples
shipped in interstate commerce. Because the
industry is so important to that state, it has taken
steps to enhance its reputation by imposing a
strict mandatory inspection and grading system.
Washington’s standards are higher than the
USDA’s, and the grading system has widespread
acceptance in the apple trade.
The Washington commission asked North Carolina

to alter its regulation or to allow certain
exceptions. When North Carolina refused, the
commission sued to have the regulation declared
unconstitutional. The federal trial court found that
the regulation violated the commerce clause, and
North Carolina governor James Hunt, on behalf of
the state, appealed to the U.S. Supreme Court.
Arguments:
For the appellants, James B. Hunt Jr.,
governor of North Carolina, et al.:
If the law imposes burdens on the sale of

Washington apples in North Carolina, the local
benefits of North Carolina’s valid exercise of its
police power outweigh those burdens. North
Carolina is protecting its citizens—and indeed
all Americans—from fraud and deception in the
marketing of apples.
The law accomplishes this goal of uniformity in
an evenhanded manner because it applies to
all apples sold in closed containers in the state
without regard to their point of origin.
Many Court decisions have held that not every
state law imposing burdens on interstate
commerce is unconstitutional. Especially when
states act to protect their citizens from fraud
and deception in the marketing of food, the
residuum of power left to the states is
particularly broad.
For the appellee, Washington

State Apple Advertising
Commission:
The law unreasonably burdens interstate
commerce in three ways. First, it clearly
discriminates against interstate commerce in
favor of local growers. Second, it denies
Washington growers the ability to use the
widely accepted quality grading system and
diminishes the marketing advantage the
state’s industry has earned. Third, North
Carolina’s regulation increases the cost of
interstate commerce by requiring out-of-state
growers to package their North Carolina–bound
products differently from those being sent to
the other states.
Mr. Chief Justice Burger Delivered the

We turn . . . to the appellant’s claim that the

District Court erred in holding that the North
Carolina statute violated the Commerce Clause
insofar as it prohibited the display of Washington
State grades on closed containers of apples
shipped into the State. Appellants do not really
contest the District Court’s determination that the
challenged statute burdened the Washington apple
industry by increasing its costs of doing business
in the North Carolina market and causing it to
lose accounts there. Rather, they maintain that
any such burdens on the interstate sale of
Washington apples were far outweighed by the
local benefits flowing from what they contend was
a valid exercise of North Carolina’s inherent
police powers designed to protect its citizenry
from fraud and deception in the marketing of
apples.
Prior to the statute’s enactment, appellants point

out, apples from 13 different States were shipped
into North Carolina for sale. Seven of those States,
including the State of Washington, had their own
grading system which, while differing in their
standards, used similar descriptive labels (e.g.,
fancy, extra fancy, etc.). This multiplicity of
inconsistent grades, as the District Court itself
found, posed dangers of deception and confusion
not only in the North Carolina market, but in the
Nation as a whole. The North Carolina statute,
appellants claim, was enacted to eliminate this
source of deception and confusion by replacing
the numerous state grades with a single uniform
standard. Moreover, it is contended that North
Carolina sought to accomplish this goal of
uniformity in an evenhanded manner as evidenced
by the fact that its statute applies to all apples
sold in closed containers in the State without
regard to their point of origin. Nonetheless,
appellants argue that the District Court gave
“scant attention” to the obvious benefits flowing
from the challenged legislation and to the long
line of decisions from this Court holding that the
State possesses “broad powers” to protect local
purchasers from fraud and deception in the
marketing of foodstuffs.
As the appellants properly point out, not every

exercise of state authority imposing some burden
on the free flow of commerce is invalid. Although
the Commerce Clause acts as a limitation upon
state power even without congressional
implementation, our opinions have long
recognized that,
“in the absence of conflicting legislation by

Congress, there is a residuum of power in the
state to make laws governing matters of local
concern which nevertheless in some measure
affect interstate commerce or even, to some
extent, regulate it.” Southern Pacific Co. v.
Arizona (1945).
Moreover, as appellants correctly note, that

“residuum” is particularly strong when the State
acts to protect its citizenry in matters pertaining
to the sale of foodstuffs. By the same token,
however, a finding that state legislation furthers
matters of legitimate local concern, even in the
health and consumer protection areas, does not
end the inquiry. Such a view, we have noted,
“would mean that the Commerce Clause of itself
imposes no limitations on state action . . . save for
the rare instance where a state artlessly discloses
an avowed purpose to discriminate against
interstate goods.” Dean Milk Co. v. Madison
(1951). Rather, when such state legislation comes
into conflict with the Commerce Clause’s
overriding requirement of a national “common
market,” we are confronted with the task of
effecting an accommodation of the competing
national and local interests. We turn to that task.
As the District Court correctly found, the

challenged statute has the practical effect of not
only burdening interstate sales of Washington
apples, but also discriminating against them. This
discrimination takes various forms. The first, and
most obvious, is the statute’s consequence of
raising the costs of doing business in the North
Carolina market for Washington apple growers
and dealers, while leaving those of their North
Carolina counterparts unaffected. As previously
noted, this disparate effect results from the fact
that North Carolina apple producers, unlike their
Washington competitors, were not forced to alter
their marketing practices in order to comply with
the statute. They were still free to market their
wares under the USDA grade or none at all as
they had done prior to the statute’s enactment.
Obviously, the increased costs imposed by the
statute would tend to shield the local apple
industry from the competition of Washington apple
growers and dealers who are already at a
competitive disadvantage because of their great
distance from the North Carolina market.
Second, the statute has the effect of stripping

away from the Washington apple industry the
competitive and economic advantages it has
earned for itself through its expensive inspection
and grading system. The record demonstrates that
the Washington apple-grading system has gained
nationwide acceptance in the apple trade. Indeed,
it contains numerous affidavits from apple brokers
and dealers located both inside and outside of
North Carolina who state their preference, and
that of their customers, for apples graded under
the Washington, as opposed to the USDA, system
because of the former’s greater consistency, its
emphasis on color, and its supporting mandatory
inspections. Once again, the statute had no similar
impact on the North Carolina apple industry and
thus operated to its benefit.
Third, by prohibiting Washington growers and

dealers from marketing apples under their State’s
grades, the statute has a leveling effect which
insidiously operates to the advantage of local
apple producers. As noted earlier, the Washington
State grades are equal or superior to the USDA
grades in all corresponding categories. Hence,
with free market forces at work, Washington
sellers would normally enjoy a distinct market
advantage vis-à-vis local producers in those
categories where the Washington grade is
superior. However, because of the statute’s
operation, Washington apples which would
otherwise qualify for and be sold under the
superior Washington grades will now have to be
marketed under their inferior USDA counterparts.
Such “down-grading” offers the North Carolina
apple industry the very sort of protection against
competing out-of-state products that the
Commerce Clause was designed to prohibit. At
worst, it will have the effect of an embargo against
those Washington apples in the superior grades as
Washington dealers withhold them from the North
Carolina market. At best, it will deprive
Washington sellers of the market premium that
such apples would otherwise command.
Despite the statute’s facial neutrality, the

Commission suggests that its discriminatory
impact on interstate commerce was not an
unintended byproduct and there are some
indications in the record to that effect. The most
glaring is the response of the North Carolina
Agriculture Commissioner to the Commission’s
request for an exemption following the statute’s
passage in which he indicated that before he could
support such an exemption, he would “want to
have the sentiment from our apple producers
since they were mainly responsible for this
legislation being passed . . .” [emphasis added].
Moreover, we find it somewhat suspect that North
Carolina singled out only closed containers of
apples, the very means by which apples are
transported in commerce, to effectuate the
statute’s ostensible consumer protection purpose
when apples are not generally sold at retail in
their shipping containers. However, we need not
ascribe an economic protection motive to the
North Carolina Legislature to resolve this case; we
conclude that the challenged statute cannot stand
insofar as it prohibits the display of Washington
State grades even if enacted for the declared
purpose of protecting consumers from deception
and fraud in the marketplace.
When discrimination against commerce of the type

we have found is demonstrated, the burden falls
on the State to justify it both in terms of the local
benefits flowing from the statute and the
unavailability of nondiscriminatory alternatives
adequate to preserve the local interests at stake.
North Carolina has failed to sustain that burden
on both scores.
The several States unquestionably possess a

substantial interest in protecting their citizens
from confusion and deception in the marketing of
foodstuffs, but the challenged statute does
remarkably little to further that laudable goal at
least with respect to Washington apples and
grades. The statute, as already noted, permits the
marketing of closed containers of apples under no
grades at all. Such a result can hardly be thought
to eliminate the problems of deception and
confusion created by the multiplicity of differing
state grades; indeed, it magnifies them by
depriving purchasers of all information concerning
the quality of the contents of closed apple
containers. Moreover, although the statute is
ostensibly a consumer protection measure, it
directs its primary efforts, not at the consuming
public at large, but at apple wholesalers and
brokers who are the principal purchasers of closed
containers of apples. And those individuals are
presumably the most knowledgeable individuals in
this area. Since the statute does nothing at all to
purify the flow of information at the retail level, it
does little to protect consumers against the
problems it was designed to eliminate. Finally, we
note that any potential for confusion and
deception created by the Washington grades was
not of the type that led to the statute’s enactment.
Since Washington grades are in all cases equal or
superior to their USDA counterparts, they could
only “deceive” or “confuse” a consumer to his
benefit, hardly a harmful result.
In addition, it appears that nondiscriminatory

alternatives to the outright ban of Washington
State grades are readily available. For example,
North Carolina could effectuate its goal by
permitting out-of-state growers to utilize state
grades only if they also marked their shipments
with the applicable USDA label. In that case, the
USDA grade would serve as a benchmark against
which the consumer could evaluate the quality of
the various state grades. If this alternative was for
some reason inadequate to eradicate problems
caused by state grades inferior to those adopted
by the USDA, North Carolina might consider
banning those state grades which, unlike
Washington’s, could not be demonstrated to be
equal or superior to the corresponding USDA
categories. Concededly, even in this latter
instance, some potential for “confusion” might
persist. However, it is the type of “confusion” that
the national interest in the free flow of goods
between the States demands be tolerated.
Affirmed.
The Southern Pacific and Washington State Apple

cases are but two examples from a long line of
decisions in which the Court has cast a disapproving
eye on state laws that discriminate against interstate
commerce or place an unreasonable burden on it.
Other examples are summarized in Box 7-10.
It would be a mistake to conclude, however, that all

state regulations that discriminate against interstate
products are unconstitutional. In several cases,
including Hughes v. Oklahoma (1979) and New
Energy Co. of Indiana v. Limbach (1988), the Court
has allowed such unequal treatment under two
conditions. First, Congress may pass legislation that
permits discrimination by the states and thereby
removes the restrictions imposed by the negative
commerce clause. Second, the justices have allowed
discrimination against interstate commerce when
the states can advance a legitimate local purpose
that cannot be adequately served by reasonable
nondiscriminatory alternatives.
Box 7-10 Examples of Supreme Court

Decisions Striking Down State and Local
Restrictions on Interstate Commerce
Maine v. Taylor (1986) involves a dispute over a state
law that bans importation of a commodity while
allowing the sale of the same article produced within
the state. Maine argues that Congress approved the
prohibition and that the law is a necessary
environmental health regulation. Does the state offer
a sufficiently strong case that its trade barrier is not
offensive to the Constitution, or is the state using the
police power as a means of protecting a domestic
industry against interstate competition?
Maine v. Taylor 477 U.S. 131 (1986)
court/477/131.html


O’Connor, Powell, Rehnquist, White)
1 (Stevens)

DISSENTING OPINION: Stevens
Facts:
Maine passed a law prohibiting the importation of
any live fish to be used as bait in any of the state’s
inland waters. The state said the law was to
protect indigenous fish from parasites and
diseases that are common among imported
baitfish and to prevent the introduction of fish that
might be detrimental to the state’s ecology.
Coupled with this state law was the Lacey Act, a
federal statute that, among other things, made it a
crime to transport any fish or wildlife in violation
of state laws.
In a clear violation of the state statute, Robert J.
Taylor, operator of a bait business in Maine,
imported 158,000 live golden shiners. The fish
were intercepted at the state border, and the
federal government indicted Taylor for violating
the Lacey Act. In his defense, Taylor attacked the
constitutionality of the Maine law. He claimed that
the ban on the interstate shipment of baitfish was
a direct violation of the commerce clause. Maine
intervened to defend its statute. In a hearing
before a U.S. magistrate, Maine introduced
testimony showing that the law served a
legitimate local purpose that could not be
adequately served by reasonable
nondiscriminatory alternatives. The judge and
later a U.S. district court agreed that the state had
met its burden and upheld its law. But the court of
appeals, also considering the purpose and possible
alternatives, reversed. The reversal cast doubt on
the state’s claim that its law served a legitimate
local purpose on the grounds that the law was
unique and had an “aura of economic
protectionism.” Even if it assumed the law had a
legitimate local purpose, the court held that less-
discriminatory alternatives existed, including the
inspection of the fish before they are released into
Maine waters. Maine and the United States
petitioned the U.S. Supreme Court to review the
case.
Arguments:
For the appellant, state of Maine:
Congress, in enacting the Lacey Act,
encouraged the enactment of statutes such as
Maine’s.
The law satisfies the purpose and alternative
requirements, as the magistrate and later
district court judge found. The court of appeals’
decision to the contrary is at odds with
evidence that the lower court found
persuasive. Under existing case law (and the
rules of civil procedure), courts of appeals are
not free to set aside findings of fact by the
lower court unless they are clearly erroneous,
which they are not in this case.
For the appellee, Robert J.

Taylor:
When a state law discriminates against
interstate commerce in a way that is not
incidental or evenhanded, the state must show
that its law serves a legitimate local purpose
and that no reasonable alternative exists to
promote the purpose without discriminating
against commerce. Because the state has
shown neither, the law violates the commerce
clause.
The state has not demonstrated that its law
serves a legitimate local purpose that
outweighs the national interest in the free flow
of commerce throughout the United States. At
trial an expert indicated that the dangers
posed by parasites may be overstated.
Even if the law served a legitimate local
purpose, the court of appeals was right to rule
that Maine has not taken advantage of less
discriminatory alternatives.

Court.
Once again, a little fish has caused a commotion.

See Hughes v. Oklahoma (1979); TVA v. Hill
(1978); Cappaert v. United States (1976). The fish
in this case is the golden shiner, a species of
minnow commonly used as live bait in sport
fishing. . . .
The Commerce Clause of the Constitution grants

Congress the power “[t]o regulate Commerce with
foreign Nations, and among the several States,
and with the Indian Tribes.” Art. I, §8, cl. 3.
“Although the Clause thus speaks in terms of
powers bestowed upon Congress, the Court long
has recognized that it also limits the power of the
States to erect barriers against interstate trade.”
Maine’s statute restricts interstate trade in the
most direct manner possible, blocking all inward
shipments of live baitfish at the State’s border.
Still, as both the District Court and the Court of
Appeals recognized, this fact alone does not
render the law unconstitutional. The limitation
imposed by the Commerce Clause on state
regulatory power “is by no means absolute,” and
“the States retain authority under their general
police powers to regulate matters of ‘legitimate
local concern,’ even though interstate commerce
may be affected.”
In determining whether a State has overstepped
its role in regulating interstate commerce, this
Court has distinguished between state statutes
that burden interstate transactions only
incidentally, and those that affirmatively
discriminate against such transactions. While
statutes in the first group violate the Commerce
Clause only if the burdens they impose on
interstate trade are “clearly excessive in relation
to the putative local benefits,” statutes in the
second group are subject to more demanding
scrutiny. The Court explained in Hughes v.
Oklahoma that once a state law is shown to
discriminate against interstate commerce “either
on its face or in practical effect,” the burden falls
on the State to demonstrate both that the statute
“serves a legitimate local purpose,” and that this
purpose could not be served as well by available
nondiscriminatory means. . . .
No matter how one describes the abstract issue

whether “alternative means could promote this
local purpose as well without discriminating
against interstate commerce,” Hughes v.
Oklahoma, the more specific question whether
scientifically accepted techniques exist for the
sampling and inspection of live baitfish is one of
fact, and the District Court’s finding that such
techniques have not been devised cannot be
characterized as clearly erroneous. Indeed, the
record probably could not support a contrary
finding. Two prosecution witnesses testified to the
lack of such procedures, and appellee’s expert
conceded the point, although he disagreed about
the need for such tests. That Maine has allowed
the importation of other freshwater fish after
inspection hardly demonstrates that the District
Court clearly erred in crediting the corroborated
and uncontradicted expert testimony that
standardized inspection techniques had not yet
been developed for baitfish. . . .
After reviewing the expert testimony . . . we

cannot say that the District Court clearly erred in
finding that substantial scientific uncertainty
surrounds the effect that baitfish parasites and
nonnative species could have on Maine’s fisheries.
Moreover, we agree with the District Court that
Maine has a legitimate interest in guarding
against imperfectly understood environmental
risks, despite the possibility that they may
ultimately prove to be negligible. “[T]he
constitutional principles underlying the commerce
clause cannot be read as requiring the State of
Maine to sit idly by and wait until potentially
irreversible environmental damage has occurred
or until the scientific community agrees on what
disease organisms are or are not dangerous before
it acts to avoid such consequences.”
Nor do we think that much doubt is cast on the

legitimacy of Maine’s purposes by what the Court
of Appeals took to be signs of protectionist intent.
Shielding in-state industries from out-of-state
competition is almost never a legitimate local
purpose, and state laws that amount to “simple
economic protectionism” consequently have been
subject to a “virtually per se rule of invalidity.” But
there is little reason in this case to believe that the
legitimate justifications the State has put forward
for its statute are merely a sham or a “post hoc
rationalization.” . . .
The Commerce Clause significantly limits the
ability of States and localities to regulate or
otherwise burden the flow of interstate commerce,
but it does not elevate free trade above all other
values. As long as a State does not needlessly
obstruct interstate trade or attempt to “place itself
in a position of economic isolation,” it retains
broad regulatory authority to protect the health
and safety of its citizens and the integrity of its
natural resources. The evidence in this case amply
supports the District Court’s findings that Maine’s
ban on the importation of live baitfish serves
legitimate local purposes that could not
adequately be served by available
nondiscriminatory alternatives. This is not a case
of arbitrary discrimination against interstate
commerce; the record suggests that Maine has
legitimate reasons “apart from their origin, to
treat [out-of-state baitfish] differently.” The
judgment of the Court of Appeals setting aside
appellee’s conviction is therefore reversed.
JUSTICE STEVENS, dissenting.

There is something fishy about this case. Maine is
the only State in the Union that blatantly
discriminates against out-of-state baitfish by flatly
prohibiting their importation. Although golden
shiners are already present and thriving in Maine
(and, perhaps not coincidentally, the subject of a
flourishing domestic industry), Maine excludes
golden shiners grown and harvested (and, perhaps
not coincidentally, sold) in other States. This kind
of stark discrimination against out-of-state articles
of commerce requires rigorous justification by the
discriminating State. “When discrimination
against commerce of the type we have found is
demonstrated, the burden falls on the State to
justify it both in terms of the local benefits flowing
from the statute and the unavailability of
nondiscriminatory alternatives adequate to
preserve the local interests at stake.” Hunt v.
Washington State Apple Advertising Comm’n
(1977).
. . . [T]he Court concludes that uncertainty about

possible ecological effects from the possible
presence of parasites and nonnative species in
shipments of out-of-state shiners suffices to carry
the State’s burden of proving a legitimate public
purpose. The Court similarly concludes that the
State has no obligation to develop feasible
inspection procedures that would make a total ban
unnecessary. It seems clear, however, that the
presumption should run the other way. Since the
State engages in obvious discrimination against
out-of-state commerce, it should be put to its
proof. Ambiguity about dangers and alternatives
should actually defeat, rather than sustain, the
discriminatory measure.
This is not to derogate the State’s interest in

ecological purity. But the invocation of
environmental protection or public health has
never been thought to confer some kind of special
dispensation from the general principle of
nondiscrimination in interstate commerce. “A
different view, that the ordinance is valid simply
because it professes to be a health measure,
would mean that the Commerce Clause of itself
imposes no restraints on state action other than
those laid down by the Due Process Clause, save
for the rare instance where a state artlessly
discloses an avowed purpose to discriminate
against interstate goods.” If Maine wishes to rely
on its interest in ecological preservation, it must
show that interest, and the infeasibility of other
alternatives, with far greater specificity.
Otherwise, it must further that asserted interest in
a manner far less offensive to the notions of
comity and cooperation that underlie the
Commerce Clause.
Significantly, the Court of Appeals, which is more

familiar with Maine’s natural resources and with
its legislation than we are, was concerned by the
uniqueness of Maine’s ban. That court felt, as I do,
that Maine’s unquestionable natural splendor
notwithstanding, the State has not carried its
substantial burden of proving why it cannot meet
its environmental concerns in the same manner as
other States with the same interest in the health
of their fish and ecology.
Maine v. Taylor illustrates a successful attempt on

the part of a state to gain approval of a statute that
clearly discriminated against interstate commerce.
Because of the implications of the Lacey Act and the
environmental interests at stake, the Court found
ample reason to forgo the standard prohibitions
imposed by the dormant commerce clause. Such
efforts, however, do not always end with victory for
state interests. Granholm v. Heald (2005) provides
an illustration. As you read this case, consider
whether the states’ arguments are compelling. Also
ask yourself, Did the precedent set in Maine v. Taylor
govern this case, or did the Court find sufficient
differences to justify an alternative outcome?
Granholm v. Heald 544 U.S. 460 (2005)
court/544/460.html

Vote: 5 (Breyer, Ginsburg, Kennedy, Scalia, Souter)
4 (O’Connor, Rehnquist, Stevens, Thomas)

Facts:
This case consolidates two appeals—one from
Michigan, the other from New York—involving
challenges to the constitutionality of certain wine
sales regulations. Both states operate three-tier
regulatory systems that separately license wine
producers, wholesalers, and retailers. Although
the specifics of the two schemes differ, both lead
to the same result: in-state wineries may legally
sell and ship their products directly to residents of
that state, but, either by direct prohibition or the
imposition of prohibitive costs, out-of-state
wineries may not. Consequently, Michigan
consumers can buy wine directly from a Michigan
winery and have it delivered to their homes, but
they cannot have wine purchased from an out-of-
state vineyard shipped to their residences.
A coalition of several wine producers who relied

on direct consumer sales and private individuals
who wanted to purchase wines from out-of-state
sources challenged the constitutionality of these
regulations on the ground that they discriminate
against interstate commerce in violation of the
commerce clause. In response, the states argued
that they were not attempting to promote
domestic wineries but instead were legislating to
protect minors from easy access to alcohol and to
facilitate the collection of liquor taxes. They also
claimed that the Twenty-first Amendment permits
such discriminatory legislation. In addition, the
states argued that Congress expressed its support
for such state regulations when it passed the
Webb-Kenyon Act of 1913. In that statute
Congress prohibited the importation of alcohol
into any state in violation of that state’s laws.
The Sixth Circuit Court of Appeals struck down

the Michigan regulations, but the Second Circuit
Court of Appeals upheld the constitutionality of
the New York law. The U.S. Supreme Court
accepted the appeals to resolve the conflict
between the findings of the two lower appellate
courts.
Arguments:
For the petitioners, Jennifer M.
Granholm, governor of Michigan, et al.:
The Twenty-first Amendment gives the states
broad power to adopt any reasonable
regulation on the importation of alcoholic
beverages for use by their residents. It was
designed to create an exception to the
dormant commerce clause. As long as state
alcohol laws bear a rational connection to their
regulatory objectives and do not violate other
provisions of the Constitution, they are
constitutional.
Congress reaffirmed this power by exercising
its power under the commerce clause to enact
and reenact the Webb-Kenyon Act.
Michigan’s differential treatment of foreign and
domestic wineries reflects an entirely rational
legislative judgment. In-state wineries may
ship directly to consumers because these
wineries are subject to effective oversight and
regulation. Michigan cannot, as a practical
matter, check the backgrounds, inspect the
records, or otherwise monitor the regulatory
compliance of out-of-state wineries.
For the respondents, Eleanor

Heald et al.:
Michigan’s law amounts to classic
discrimination within the meaning of the
dormant commerce clause: “differential
treatment of in-state and out-of-state economic
interests that benefits the former and burdens
the latter.”
The Supreme Court has made clear that the
nondiscrimination principle applies to the sale
of alcoholic products. The Twenty-first
Amendment does not allow states to violate
core commerce clause principles by explicitly
discriminating against out-of-state alcohol
producers. The Webb-Kenyon Act does not
confer upon the states the power to
discriminate against interstate commerce; it
merely mirrors the language of the Twenty-first
Amendment.
The Court has left open the possibility that a
state may discriminate against interstate
commerce “by showing that it advances a
legitimate local purpose that cannot be
adequately served by reasonable
nondiscriminatory alternatives.” Michigan has
not met this test. Michigan asserts that the
discrimination is necessary to prevent the sale
of wine to minors, prevent loss of revenue, and
protect public health and safety, but has not
supported this assertion with any proof. In fact,
the Federal Trade Commission has found that
the twenty-six states that allow direct shipping
have encountered none of these problems.

Court.
Time and again this Court has held that, in all but
the narrowest circumstances, state laws violate
the Commerce Clause if they mandate “differential
treatment of in-state and out-of-state economic
interests that benefits the former and burdens the
latter.” Oregon Waste Systems, Inc. v. Department
of Environmental Quality of Ore. (1994). This rule
is essential to the foundations of the Union. The
mere fact of nonresidence should not foreclose a
producer in one State from access to markets in
other States. States may not enact laws that
burden out-of-state producers or shippers simply
to give a competitive advantage to in-state
businesses. This mandate “reflect[s] a central
concern of the Framers that was an immediate
reason for calling the Constitutional Convention:
the conviction that in order to succeed, the new
Union would have to avoid the tendencies toward
economic Balkanization that had plagued relations
among the Colonies and later among the States
under the Articles of Confederation.” Hughes v.
Oklahoma (1979). . . .
Laws of the type at issue in the instant cases

contradict these principles. They deprive citizens
of their right to have access to the markets of
other States on equal terms. The perceived
necessity for reciprocal sale privileges risks
generating the trade rivalries and animosities, the
alliances and exclusivity, that the Constitution
and, in particular, the Commerce Clause were
designed to avoid. . . .The current patchwork of
laws—with some States banning direct shipments
altogether, others doing so only for out-of-state
wines, and still others requiring reciprocity—is
essentially the product of an ongoing, low-level
trade war. Allowing States to discriminate against
out-of-state wine “invite[s] a multiplication of
preferential trade areas destructive of the very
purpose of the Commerce Clause.” Dean Milk Co.
v. Madison (1951). . . .
State laws that discriminate against interstate

commerce face “a virtually per se rule of
invalidity.” Philadelphia v. New Jersey (1978). The
Michigan and New York laws by their own terms
violate this proscription. The two States, however,
contend their statutes are saved by §2 of the
Twenty-first Amendment, which provides:
“The transportation or importation into any

State, Territory, or possession of the United
States for delivery or use therein of
intoxicating liquors, in violation of the laws
thereof, is hereby prohibited.”
The States’ position is inconsistent with our

precedents and with the Twenty-first
Amendment’s history. Section 2 does not allow
States to regulate the direct shipment of wine on
terms that discriminate in favor of in-state
producers. . . .
The aim of the Twenty-first Amendment was to

allow States to maintain an effective and uniform
system for controlling liquor by regulating its
transportation, importation, and use. The
Amendment did not give States the authority to
pass nonuniform laws in order to discriminate
against out-of-state goods, a privilege they had not
enjoyed at any earlier time. . . .
Our more recent cases, furthermore, confirm that

the Twenty-first Amendment does not supersede
other provisions of the Constitution and, in
particular, does not displace the rule that States
may not give a discriminatory preference to their
own producers. . . .
Our determination that the Michigan and New

York direct-shipment laws are not authorized by
the Twenty-first Amendment does not end the
inquiry. We still must consider whether either
State regime “advances a legitimate local purpose
that cannot be adequately served by reasonable
nondiscriminatory alternatives.” New Energy Co.
of Ind. [v. Limbach, 1988]. The States offer two
primary justifications for restricting direct
shipments from out-of-state wineries: keeping
alcohol out of the hands of minors and facilitating
tax collection. . . .
The States, aided by several amici, claim that

allowing direct shipment from out-of-state
wineries undermines their ability to police
underage drinking. Minors, the States argue, have
easy access to credit cards and the Internet and
are likely to take advantage of direct wine
shipments as a means of obtaining alcohol
illegally.
The States provide little evidence that the

purchase of wine over the Internet by minors is a
problem. Indeed, there is some evidence to the
contrary. . . . Without concrete evidence that
direct shipping of wine is likely to increase alcohol
consumption by minors, we are left with the
States’ unsupported assertions. Under our
precedents, which require the “clearest showing”
to justify discriminatory state regulation, C & A
Carbone, Inc. [v. Clarkstown, 1994], this is not
enough. . . .
The States’ tax-collection justification is also

insufficient. Increased direct shipping, whether
originating in state or out of state, brings with it
the potential for tax evasion. . . .
In summary, the States provide little concrete

evidence for the sweeping assertion that they
cannot police direct shipments by out-of-state
wineries. Our Commerce Clause cases demand
more than mere speculation to support
discrimination against out-of-state goods. The
“burden is on the State to show that ‘the
discrimination is demonstrably justified,’”
Chemical Waste Management, Inc. v. Hunt (1992)
(emphasis in original). The Court has upheld state
regulations that discriminate against interstate
commerce only after finding, based on concrete
record evidence, that a State’s nondiscriminatory
alternatives will prove unworkable. Michigan and
New York have not satisfied this exacting
standard.
States have broad power to regulate liquor under

§2 of the Twenty-first Amendment. This power,
however, does not allow States to ban, or severely
limit, the direct shipment of out-of-state wine
while simultaneously authorizing direct shipment
by in-state producers. If a State chooses to allow
direct shipment of wine, it must do so on
evenhanded terms. Without demonstrating the
need for discrimination, New York and Michigan
have enacted regulations that disadvantage out-of-
state wine producers. Under our Commerce
Clause jurisprudence, these regulations cannot
stand.
It is so ordered.
JUSTICE THOMAS, with whom

STEVENS, and JUSTICE
O’CONNOR join, dissenting.
The Court devotes much attention to the Twenty-
first Amendment, yet little to the terms of the
Webb-Kenyon Act. This is a mistake, because that
Act’s language displaces any negative Commerce
Clause barrier to state regulation of liquor sales to
in-state consumers.
The Webb-Kenyon Act immunizes from negative

Commerce Clause review the state liquor laws
that the Court holds are unconstitutional. The Act
“prohibit[s]” any “shipment or transportation” of
alcoholic beverages “into any State” when those
beverages are “intended, by any person interested
therein, to be received, possessed, sold, or in any
manner used . . . in violation of any law of such
State.” State laws that regulate liquor imports in
the manner described by the Act are exempt from
judicial scrutiny under the negative Commerce
Clause, as this Court has long held. . . .
The Michigan and New York direct-shipment laws

are within the Webb-Kenyon Act’s terms and
therefore do not run afoul of the negative
. . . [T]he state laws the Court strikes down [also]
are lawful under the plain meaning of §2 of the
Twenty-first Amendment, as this Court’s case law
in the wake of the Amendment and the
contemporaneous practice of the States reinforce.
Section 2 of the Twenty-first Amendment provides:

“The transportation or importation into any State,
Territory, or possession of the United States for
delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.”
. . . [T]his language tracked the Webb-Kenyon Act
by authorizing state regulation that would
otherwise conflict with the negative Commerce
Clause. To remove any doubt regarding its broad
scope, the Amendment simplified the language of
the Webb-Kenyon Act and made clear that States
could regulate importation destined for in-state
delivery free of negative Commerce Clause
restraints. Though the Twenty-first Amendment
mirrors the basic terminology of the Webb-Kenyon
Act, its language is broader, authorizing States to
regulate all “transportation or importation” that
runs afoul of state law. The broader language even
more naturally encompasses discriminatory state
laws. Its terms suggest, for example, that a State
may ban imports entirely while leaving in-state
liquor unregulated, for they do not condition the
State’s ability to prohibit imports on the manner in
which state law treats domestic products. . . .
The Court begins its opinion by detailing the evils

of state laws that restrict the direct shipment of
wine. . . . The Twenty-first Amendment and the
Webb-Kenyon Act took those policy choices away
from judges and returned them to the States.
Whatever the wisdom of that choice, the Court
does this Nation no service by ignoring the textual
commands of the Constitution and Acts of
Congress. The Twenty-first Amendment and the
Webb-Kenyon Act displaced the negative
Commerce Clause as applied to regulation of
liquor imports into a State. They require
sustaining the constitutionality of Michigan’s and
New York’s direct-shipment laws. I respectfully
dissent.
The authority of the states to regulate interstate

commerce remains consistent with the principles set
out in Cooley v. Board of Wardens (1852). The
Constitution without doubt gives supremacy in this
area to the national government. If Congress elects
to regulate such commerce, the power of the state is
preempted. But where Congress does not regulate,
the states may have a role. When national uniformity
is not necessary, states may pass reasonable forms of
regulation to meet legitimate local needs. If these
ordinances place unreasonable burdens on interstate
commerce or discriminate against interstate
commerce in favor of domestic business, the Court
will view them with suspicion, requiring the state to
meet a heavy obligation of proving their legitimacy.
As Maine v. Taylor and Granholm v. Heald illustrate,
however, even well-developed legal standards are
subject to differing interpretations that the judiciary
may be called on to resolve.
Annotated Readings
For pre–New Deal studies of the Court, see Maurice
G. Baxter, The Steamboat Monopoly: Gibbons v.
Ogden (New York: Knopf, 1972); Felix Frankfurter,
The Commerce Clause under Marshall, Taney, and
Waite (Chapel Hill: University of North Carolina
Press, 1937); Tony A. Freyer, The Passenger Cases
and the Commerce Clause (Lawrence: University
Press of Kansas, 2014); Calvin H. Johnson, Righteous
Anger at the Wicked States: The Meaning of the
Founders’ Constitution (New York: Cambridge
University Press, 2005); Herbert Alan Johnson,
Gibbons v. Ogden: John Marshall, Steamboats, and
the Commerce Clause (Lawrence: University Press
of Kansas, 2010); and Stephen B. Wood,
Constitutional Politics in the Progressive Era: Child
Labor and the Law (Chicago: University of Chicago
Press, 1968).
On the New Deal period, see Leonard Baker, Back to

Back: The Duel between FDR and the Supreme
Court (New York: Macmillan, 1967); Richard
Cortner, The Wagner Act Cases (Knoxville:
University of Tennessee Press, 1964); Edward S.
Corwin, The Commerce Power versus States’ Rights
Barry Cushman, Rethinking the New Deal Court: The
Structure of a Constitutional Revolution (New York:
Oxford University Press, 1998); Nelson Dawson,
Louis D. Brandeis, Felix Frankfurter, and the New
Deal (Hamden, CT: Archon Books, 1980); Robert
Himmelberg, The Origins of the National Recovery
Administration (New York: Fordham University
Press, 1976); Peter H. Irons, The New Deal Lawyers
William E. Leuchtenburg, The Supreme Court
Reborn: The Constitutional Revolution in the Age of
Roosevelt (New York: Oxford University Press,
1995); Drew Pearson and Robert S. Allen, The Nine
Old Men (Garden City, NY: Doubleday, 1936); C.
Herman Pritchett, The Roosevelt Court: A Study in
Judicial Politics and Values (New York: Macmillan,
1948); and Ronen Shamir, Managing Legal
Uncertainty: Elite Lawyers in the New Deal
(Durham, NC: Duke University Press, 1995).
Books that address the post–New Deal era include

Fritz Allhoff and Mark A. Hall (eds.), The Affordable
Care Act Decision (New York: Routledge, 2014);
Richard Cortner, Civil Rights and Public
Accommodations: The Heart of Atlanta Motel and
McClung Cases (Lawrence: University Press of
Kansas, 2001); Thomas M. Keck, The Most Activist
Supreme Court in History: The Road to Modern
Judicial Conservatism (Chicago: University of
Chicago Press, 2004); and Robert D. Loevy, ed., The
Civil Rights Act of 1964: The Passage of the Law
That Ended Racial Segregation (Albany: State
University of New York Press, 1997).
Chapter Eight The Power to
Tax and Spend
PERHAPS no government power affects Americans

more directly than the authority to tax and spend.
Each year federal, state, and local governments
collect trillions of dollars in taxes imposed on a wide
variety of activities, transactions, and goods. The
federal government reminds us of its power to tax
when we receive our paychecks, to say nothing of
every April 15, the annual deadline for filing tax
returns. Many state governments lay taxes on our
incomes as well, and a majority of them also impose
a levy each time we make a retail purchase. If we
own a house, we must annually pay a tax on its
value. We pay state and/or federal excise taxes
whenever we put gas in the car or buy an airline
ticket. When we buy goods from abroad, the price
includes a duty imposed on imports.
Americans have strong opinions about the

government’s taxing and spending activities. Given
the importance the public places on these issues, it
is not surprising that government fiscal policies are
often at the center of political battles. Presidential
election contests often focus on taxing and spending
policies. How should we deal with the growing
national debt? What constitutes a fair income tax
rate? What should be done to reform government
spending on entitlement programs such as Social
Security, Medicare, and Medicaid? Do we spend too
much (or too little) on national defense? If the goal is
to stimulate the economy, which is the more effective
alternative: increasing government spending or
cutting taxes?
Today the government’s power to tax and spend is

firmly established, with reasonably well-defined
contours, but this was not always the case. Some of
the country’s greatest constitutional battles have
been fought over the fiscal powers. The results of
these legal disputes have significantly shaped the
powers and constraints of American political
institutions. In this chapter, we examine the
Supreme Court’s interpretations of the twin fiscal
powers of taxation and spending.
The Constitutional Power to Tax

and Spend
The power to tax was a fundamental issue at the
Constitutional Convention. The government under
the Articles of Confederation was ineffective in part
because it had no authority to levy taxes. It could
only request funds from the states and had no power
to collect payments if the states refused to
cooperate. The taxing authority resided solely with
the states, which left the national government
unable to execute public policies unless the states
overwhelmingly supported them, a situation that did
not occur with any regularity. It was clear that the
central government would have to gain some
revenue-gathering powers under the new
constitution while the states retained concurrent
authority to impose taxes.
Article I, Section 8, of the Constitution enumerates

the powers of the federal government, and the first
of those listed is the power to tax and spend: “The
Congress shall have Power to lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general
Welfare of the United States.”
The wording of this grant of authority is quite broad.

The revenue function breaks into three categories.
The first is the general grant of taxation power.
Second is the authority to collect duties, which are
taxes levied on imports, the primary source of
revenue at that time. The third is the power to
impose excises, which are taxes on the manufacture,
sale, or use of goods, or on occupational or other
activities.
The power to spend is also broadly constructed. The

revenues gathered through the various taxing
mechanisms may be used to pay government debts,
to fund the nation’s defense, and to provide for the
general welfare. Although James Madison (and
others) argued that the framers intended the
spending power to be limited to funding those
government activities explicitly authorized in the
Constitution, the wording of Article I, Section 8, does
not impose any such restriction. As we shall see later
in this chapter, that Congress may spend federal
funds to provide for the general welfare is indeed a
broad grant of authority.
This is not to say that the federal power to tax and

spend is without limits. The framers were wary
enough of the dangers of a strong central
government to impose some restrictions.
First, Article I, Section 8, stipulates that “all Duties,

Imposts and Excises shall be uniform throughout the
United States.” The purpose of this provision was to
prevent Congress from imposing different tax rates
on various regions or requiring the citizens of one
state to pay a tax rate higher than that paid by
citizens of other states. Geographical uniformity is
the only stated constitutional requirement for excise
taxes and taxes on imports. If this standard is met,
the tax is likely to be valid.
Second, Article I, Section 9, holds that “[n]o

capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein
before directed to be taken.” This same admonition
is found in Article I, Section 2, where the framers
wrote that “direct Taxes shall be apportioned among
the several States . . . according to their respective
Numbers” as determined by the national census. The
term direct tax is not defined in the Constitution,
and it is a difficult concept to understand. When the
framers referred to a direct tax, they most likely
meant a head tax—a tax imposed on each person—or
a tax on land. As we shall see in the next section, the
requirement that direct taxes be apportioned on the
basis of population has proved troublesome, and
Congress has generally avoided such levies.
Third, Article I, Section 9, also dictates that “[n]o

Tax or Duty shall be laid on Articles exported from
any State.” Consistent with the prevailing philosophy
of increased commerce and trade, the framers
wanted to ensure that the products of the states
would move freely without the burden of federal
taxes being placed on them.
The framers generally allowed the states to retain

their taxing authority as it existed prior to
ratification of the Constitution. Consequently, state
and local governments today tax a wide array of
activities and goods, including individual and
corporate incomes, personal property, real estate,
retail sales, investment holdings, and inheritances.
But the Constitution imposed some new restraints on
state taxing authority. These limitations specifically
removed from the states any power to place taxes on
certain forms of commerce. Article I, Section 10,
prohibits them from imposing any duty on imports or
exports, as well as from placing any tax on the cargo
capacity of vessels using the nation’s ports. The
framers were interested in the promotion of
commerce, and these provisions precluded states
from retarding commerce by using foreign trade as a
source of tax revenue.
In addition to these specific restrictions, state and

federal taxation must be consistent with the other
provisions of the Constitution. It would be a violation
of the Constitution if a state or the federal
government taxed the exercise of a constitutional
right, such as the freedom of speech or the exercise
of religion. By the same token, if the government
were to impose varying tax rates based on sex or
race, such levies would be in violation of the
constitutional rights of due process and equal
protection of the laws. Consistent with the purposes
of the commerce clause, states cannot use their
taxing authority to discriminate against interstate
commerce in favor of their own in-state enterprises.
Direct Taxes and the Power to

Tax Income
The Constitution stipulates two standards for
assessing federal taxes. The first is geographical
uniformity. Duties, imposts, and excise taxes all must
be applied according to this standard. If Congress
taxes a particular product entering the ports of the
United States, the tax rate on the article must be the
same regardless of the point of entry. Excise taxes
also must be applied uniformly throughout the
nation. If an excise is placed on automobiles, the
amount assessed must be the same in California as it
is in Tennessee.
The second standard for imposing taxes is

population distribution. The Constitution says that
all direct taxes must be apportioned among the
states on the basis of population. The document does
not define the term direct tax, but we know that
historically the concept was considered at a
minimum to include a tax levied on every individual
(often called a capitation tax or a head tax) and taxes
on land.
The delegates from the sparsely populated states

supported this provision because they feared that
the larger states, with greater representation in the
House of Representatives, would craft tax measures
in such a way that the burden would fall
disproportionately on the citizens of the smaller
states. Southern states particularly supported the
requirement that direct taxes be apportioned on the
basis of population. These states had smaller
populations than the northern states and were larger
in geographical size. Without apportioning on the
basis of population, for example, the states in the
south would be much harder hit by a federal tax on
land than would the states in the north. The
apportionment requirement also led the southern
states to demand that slaves be counted as less than
full persons for taxation purposes. Counting a slave
as three-fifths of a person, as the Constitutional
Convention ultimately decided, would reduce the tax
liability of the southern states in the event that
Congress imposed a head tax or other direct tax.
Do direct taxes include more than just taxes on

individual persons and taxes on land? The question
is an important one. As Box 8-1 illustrates, whether a
tax is levied uniformly (as the Constitution requires
for excise taxes) or is apportioned on the basis of
population (required for direct taxes) makes a great
deal of difference as to who pays how much. In
Federalist No. 21 Alexander Hamilton claimed that
direct taxes were only those imposed on land and
buildings, but Hamilton’s opinion did not settle the
issue. It required a Supreme Court decision to do
that.
Defining Direct Taxation

In one of the Court’s earliest cases, Hylton v.
United States (1796), the justices defined the term
direct tax. The dispute stemmed from a tax on
carriages Congress had passed in June 1794. The
statute classified the tax as an excise and, therefore,
applied the same rate on carriages nationwide. The
Federalist majorities in Congress passed the statute
over Anti-Federalist opposition, and the tax was
completely partisan. The Federalists generally
represented the states in the Northeast with large
populations but relatively few carriages; the Anti-
Federalist strongholds were the less densely
populated and more agricultural states with larger
numbers of carriages. Because the carriage tax was
deemed an excise, the Anti-Federalist areas would
pay a much greater share of it than would the
residents of the Northeast. The Anti-Federalists
would have preferred to classify the measure as a
direct tax and apportion it on the basis of population.
Daniel Hylton, a resident of Richmond, Virginia,

challenged the constitutionality of the assessment,
claiming that it was a direct tax, not an excise, and
should have been apportioned on the basis of
population. The government took the position that,
as a tax on an article, the carriage tax was an excise.
By almost every rule of judicial authority developed

since that time, the Court should have refused to
hear the dispute.1 The evidence showed that the
case did not involve adverse parties. In fact, the suit
appeared to be little more than a ploy by the
government to obtain Court approval of its
interpretation of the taxation provisions of the
Constitution. Both sides to the dispute agreed that
Hylton owned 125 carriages exclusively for his
private use. In reality, he had only a single carriage.
Under federal law at that time, a federal circuit
court decision in a civil case could not be appealed
to the Supreme Court unless the dispute involved a
claim of at least $2,000. If Hylton owned 125
carriages, the taxes and penalties due ($16 per
carriage) would reach the required threshold. This
jurisdictional point was important because the
Federalists anticipated that the Supreme Court
would give the law a sympathetic interpretation.
Administration officials also agreed that if the Court
found the tax valid they would demand that Hylton
pay only $16. Perhaps an even greater indication of
collusion was that the government paid the fees of
the attorneys for both sides as well as court costs.
1 See Urofsky and Finkelman, A March of Liberty,

177–178. See also Robert F. Cushman, Cases in
Constitutional Law, 7th ed. (Englewood Cliffs, NJ:
Prentice Hall, 1989), 177–178.
Alexander Hamilton, former secretary of the

Treasury, presented the government’s case.
Hamilton was a vigorous supporter of a strong
national government and of broad federal taxation
powers. He understood the problems associated with
apportioning taxes on the basis of population and
consequently wanted the Court to set down a narrow
definition of direct taxes.
Box 8-1 Direct and Indirect Taxes:

Apportionment versus Geographical Uniformity
THIS EXAMPLE demonstrates the difference

between direct and indirect taxing methods. The
facts and figures used are purely hypothetical.
Assume that Congress decides to raise $1 million

through a tax on the nation’s 100,000
thoroughbred horses. If this tax is considered an
excise tax, it must conform to the constitutional
requirement of geographical uniformity. In order
to achieve the $1 million goal, Congress would
have to require that all thoroughbred horse
owners pay a tax of $10 per horse. The rate would
be the same in Maine as in Oregon. If, however,
the tax on thoroughbred horses is classified as a
direct tax, a different set of calculations would
have to be made to meet the constitutionally
required apportionment standard. Three factors
would need to be known: first, the amount of
money Congress intends to raise; second, the
proportion of the national population residing in
each state; and third, the number of thoroughbred
horses in each state. Apportionment means that
the proportion of the revenue obtained from a
state must equal the proportion of the country’s
population living there.
The following calculations show the differing

impacts of apportionment in the application of the
$1 million horse tax to three states. State A is a
densely populated, urban state with few horses.
State B is a moderately populated state with some
ranching areas. State C is a sparsely populated,
primarily agricultural state, with a relatively large
number of thoroughbreds.
Obviously, the horse owners in State A would be

greatly disadvantaged if the horse tax were
classified as a direct tax and apportioned among
the states on the basis of population. State C, on
the other hand, would be greatly benefited.
Because State C has only 1 percent of the nation’s
population, it would be responsible for raising only
1 percent of the $1,000,000 tax revenues.
Furthermore, that smaller tax obligation would be
distributed over a disproportionately large
number of horses.
Horse owners in State A clearly would prefer that

the tax on thoroughbreds be defined as an excise
tax, with its required geographical uniformity.
State C’s thoroughbred owners obviously would
argue for the horse tax to be considered a direct
tax and thus apportioned among the states on the
basis of population.
Hamilton’s side was victorious. The three justices

who participated in the decision each voted in favor
of the statute and in agreement with Congress’s
determination that the carriage tax was an excise
tax.2 As was the custom in the years before John
Marshall became chief justice, each justice wrote a
separate opinion explaining his vote.3 The opinions
of James Iredell and Samuel Chase stressed the
inappropriateness of attempting to apportion a tax
on carriages and the inevitable inequities that would
result. William Paterson’s opinion emphasized the
intention of the framers. His opinion had particular
credibility because Paterson, having been a New
Jersey delegate to the Constitutional Convention,
was one of the framers.4 All three agreed that only
two kinds of taxes fell into the direct tax category:
taxes on land and capitation taxes.
2 The other three members of the Court were absent

for various reasons. Oliver Ellsworth had just been
sworn in as chief justice and, because he had missed
some of the arguments, did not participate in the
decision. James Wilson heard arguments but did not
vote in the case because he had participated in the
lower court decision upholding the tax. William
Cushing was not present for the arguments and
therefore did not vote on the merits.
3 The practice of each justice writing a separate

opinion explaining individual views was borrowed
from the British courts. When Marshall became chief
justice, he moved away from the use of such seriatim
opinions to the current practice of a single opinion
explaining the views of the majority. Marshall
believed that the use of a single opinion increased
the Court’s status and effectiveness.
4 Justice Wilson was also a delegate at the

Constitutional Convention and, therefore, one of the
framers. Although he did not participate in Hylton at
the Supreme Court level, Wilson earlier had voted in
the lower court to uphold the tax as an excise.
Apportioning taxes on the basis of population is very

cumbersome and almost inevitably leads to unjust
tax burdens. By limiting the kinds of taxes that fell
into the direct taxation category, the Hylton decision
significantly strengthened federal taxation powers. It
freed Congress from having to apply unpopular
apportionment standards to most taxes. In fact,
Congress has imposed taxes requiring
apportionment on only five occasions, the last time
occurring in 1861.5
5 Cushman, Cases in Constitutional Law, 178. The

direct tax issue, however, is still occasionally raised.
As we will see later in this chapter, it was one of the
arguments made against the constitutional validity
of the Patient Protection and Affordable Care Act of
2010.
Hylton was the first case in which the Supreme

Court heard a challenge to the constitutionality of a
federal statute; the decision predated Marbury v.
Madison by seven years. It is clear from the
arguments before the Court and the justices’
opinions that the law was tested for its
constitutionality. Hylton is not as well-known as
Marbury because in Hylton the Court found the act
of Congress to be valid.
The Constitutionality of the

Income Tax
From Hylton in 1796 to the 1860s, federal taxing
authority remained generally unchanged. The
government financed its activities largely through
import duties and excise taxes. The Civil War,
however, placed a pressing financial strain on the
federal government. Between 1858 and the end of
the war, it ran unusually high budget deficits and
needed to find new sources of revenue to fund the
war effort. To address the crisis, Congress in 1862
and 1864 imposed the first taxes on individual
incomes. The 1881 case of Springer v. United
States involved a challenge to the validity of that
tax. William M. Springer, an attorney, claimed that
the income tax was a direct tax and should have
been apportioned on the basis of population. The
justices unanimously rejected this position, once
again holding that only capitation taxes and taxes on
land were direct taxes. Although the challenged tax
was a levy on the income of individuals, it could not
be considered a capitation tax within the normal
meaning of that term because it was not a tax
equally levied on all individuals. Springer, then, set
precedent that the federal government had the
power to tax incomes.
As the government reduced its war debts, Congress

in 1872 was able to repeal the income tax law.6 But
the issue of taxing income did not go away. The
populist movement favored the use of the
progressive income tax as the primary method of
raising federal revenues. In addition, labor groups
and farm organizations began arguing that new
revenue sources should be developed to shift the
burden away from reliance on import duties.
Members of the Democratic Party criticized the
regressive aspects of the tax structure of that time.
6 For an excellent review of the history of the

income tax in the United States, see John F. Witte,
The Politics and Development of the Federal Income
Tax (Madison: University of Wisconsin Press, 1985).
In response to these demands, Congress enacted an

income tax law in 1894. The statute, part of the
Wilson-Gorman Tariff Act, imposed a 2 percent tax
on all corporate profits and on individual incomes.
Income derived from salaries and wages, gifts,
inheritances, dividends, rents, and interest,
including interest from state and municipal bonds,
was subject to this tax. People with annual incomes
of less than $4,000 paid no tax. This exemption, set
at a level much higher than the average worker
earned, meant that most of the burden fell on the
wealthy. For this reason, the tax received
overwhelming support from rank-and-file citizens
and bitter opposition from businesses and those
individuals enjoying high incomes. The wealthy
classes, in fact, claimed that the income tax would
destroy the very fabric of the nation, replacing
historic principles of private property with
communism and socialism.
The income tax law was promptly challenged in the

Supreme Court in an 1895 appeal, Pollock v.
Farmers’ Loan & Trust Co. One of the primary
arguments of the law’s opponents was that the
income tax was a direct tax, and because Congress
had not apportioned it, the law was unconstitutional.
Given precedents such as Hylton and Springer,
would you anticipate that this position would be
successful?
Pollock v. Farmers’ Loan & Trust Co. 158 U.S. 601

(1895)
court/158/601.html
Vote: 5 (Brewer, Field, Fuller, Gray, Shiras)
4 (Brown, Harlan, Jackson, White)
OPINION OF THE COURT: Fuller

DISSENTING OPINIONS: Brown, Harlan,
Jackson, White
Facts:
Charles Pollock, a shareholder in Farmers’ Loan &
Trust Company of New York, filed suit on behalf of
himself and his fellow stockholders to block the
company from paying the national income tax on
the ground that the tax was unconstitutional. The
lawsuit was obviously collusive: the company no
more wanted to pay the tax than did its
shareholders. Opponents of the law claimed (1)
that taxing income from state and city bonds was
an unconstitutional encroachment on the state’s
power to borrow money, (2) that a tax on income
from real property was a direct tax and must be
apportioned on the basis of population, and (3)
that these taxes were so integral to the entire tax
act that the whole law should be declared
unconstitutional.
The Court heard arguments in the Pollock case

twice. In its first decision, the majority declared
the tax on state and municipal bonds
unconstitutional.7 It further ruled that a tax on
income from land was essentially the same as
taxing land itself. Because a tax on land is a direct
tax, so too is a tax on the income from land;
therefore, such taxes must be apportioned on the
basis of population. But the Court was unable to
reach a decision on whether the entire law should
be declared unconstitutional. On this question the
justices divided 4–4 because Justice Howell
Jackson, ill with tuberculosis, was absent.
7 Pollock v. Farmers’ Loan & Trust Co., 157 U.S.

429 (1895).
Pollock filed a petition for a second hearing, and

Jackson made it known that he would be present
for it. The second decision reviewed much of what
the Court concluded in the first, but this time the
Court went on to rule on the question of the
general constitutionality of the income tax act.
Farmers’ Loan & Trust made no attempt to defend

the law. It only urged the Court to decide the case
expeditiously. In its place, U.S. Justice Department
attorneys presented the case supporting the
constitutionality of the income tax.
The Pollock decision was one of the most
controversial and important of its day. It contained
all the elements of high drama. The case pitted the
interests of businesses and wealthy individuals
against those supporting social and fiscal reform.
Both sides believed that a victory for their
opponents would have disastrous consequences
for the nation. Newspapers editorialized with
enthusiasm. After the first decision ended in a tie,
the suspense surrounding the second hearing
grew tremendously. The human-interest factor was
heightened when Justice Jackson, who died three
months later, was transported to Washington to
cast what he believed would be the deciding vote
in favor of the tax. Oral arguments took place from
May 6 to May 8, and apparently the justices did
not act in a manner consistent with detached
objectivity. As political science professor Loren P.
Beth has described it, “Harlan wrote privately that
Justice Stephen J. Field acted like a ‘madman’
throughout the case, but the dissenters’ own
opinions were similarly emotional.”8 In the end
the opponents of the tax were victorious. Although
Jackson, as expected, voted to uphold the law,
Justice George Shiras, who had supported the tax
in the first hearing, changed positions and became
the crucial fifth vote to strike it down.
8 Loren P. Beth, “Pollock v. Farmers’ Loan & Trust

Co.,” in Hall, Oxford Companion to the Supreme
Court, 655.
Arguments:
For the appellant, Charles Pollock:
Taxes on property or the income from property
are direct taxes subject to the constitutional
requirement of apportionment.
The direct taxes levied by this act are not
apportioned among the states on the basis of
population and are therefore unconstitutional.
The tax on income from state and municipal
bonds is a tax on the power of states and their
subdivisions to raise revenue and is therefore
unconstitutional.
The unconstitutional provisions of this statute
are so integral to the entire piece of legislation
that the whole act is void.
For the appellee, Farmers’ Loan

& Trust (presented by the U.S.
government):
A tax on income is an excise. It is an indirect
tax and therefore subject only to the
constitutional requirement of geographical
uniformity. This tax is geographically uniform
and is therefore constitutional.
A tax on income, to the extent that the income
is derived from rents, is not a tax on land and
is therefore not a direct tax.
This is a tax on an individual’s total income,
not a tax that targets income from land or from
state/local government bonds.
If any provision of the tax act is found
unconstitutional, the remaining portions of the
statute are not significantly affected and may
continue to be enforced.
Mr. Chief Justice Fuller Delivered the Opinion
of the Court.
Whenever this court is required to pass upon the

validity of an act of Congress as tested by the
fundamental law enacted by the people, the duty
imposed demands in its discharge the utmost
deliberation and care, and invokes the deepest
sense of responsibility. And this is especially so
when the question involves the exercise of a great
governmental power, and brings into
consideration, as vitally affected by the decision,
that complex system of government, so
sagaciously framed to secure and perpetuate “an
indestructible Union, composed of indestructible
States.” . . .
As heretofore stated, the Constitution divided

Federal taxation into two great classes, the class
of direct taxes, and the class of duties, imposts
and excises; and prescribed two rules which
qualified the grant of power as to each class.
The power to lay direct taxes apportioned among

the several States in proportion to their
representation in the popular branch of Congress,
a representation based on population as
ascertained by the census, was plenary and
absolute; but to lay direct taxes without
apportionment was forbidden. The power to lay
duties, imposts, and excises was subject to the
qualification that the imposition must be uniform
throughout the United States.
Our previous decision was confined to the
consideration of the validity of the tax on the
income from real estate, and on the income from
municipal bonds. The question thus limited was
whether such taxation was direct or not, in the
meaning of the Constitution; and the court went
no farther, as to the tax on the income from real
estate, than to hold that it fell within the same
class as the source whence the income was
derived, that is, that a tax upon the realty and a
tax upon the receipts therefrom were alike direct;
while as to the income from municipal bonds, that
could not be taxed because of want of power to tax
the source, and no reference was made to the
nature of the tax as being direct or indirect.
We are now permitted to broaden the field of

inquiry, and to determine to which of the two
great classes a tax upon a person’s entire income,
whether derived from rents, or products, or
otherwise, of real estate, or from bonds, stocks, or
other forms of personal property, belongs; and we
are unable to conclude that the enforced
subtraction from the yield of all the owner’s real
or personal property, in the manner prescribed, is
so different from a tax upon the property itself,
that it is not a direct, but an indirect tax, in the
meaning of the Constitution. . . .
The reasons for the clauses of the Constitution in

respect of direct taxation are not far to seek. The
States, respectively, possessed plenary powers of
taxation. They could tax the property of their
citizens in such manner and to such extent as they
saw fit; they had unrestricted powers to impose
duties or imposts on imports from abroad, and
excises on manufactures, consumable
commodities, or otherwise. They gave up the great
sources of revenue derived from commerce. They
retained the concurrent power of levying excises,
and duties if covering anything other than excises;
but in respect of them the range of taxation was
narrowed by the power granted over interstate
commerce, and by the danger of being put at
disadvantage in dealing with excises on
manufactures. They retained the power of direct
taxation, and to that they looked as their chief
resource; but even in respect of that, they granted
the concurrent power, and if the tax were placed
by both governments on the same subject, the
claim of the United States had preference.
Therefore, they did not grant the power of direct
taxation without regard to their own condition and
resources as States; but they granted the power of
apportioned direct taxation, a power just as
efficacious to serve the needs of the general
government, but securing to the States the
opportunity to pay the amount apportioned, and to
recoup from their own citizens in the most feasible
way, and in harmony with their systems of local
self-government. If, in the changes of wealth and
population in particular States, apportionment
produced inequality, it was an inequality
stipulated for, just as the equal representation of
the States, however small, in the Senate, was
stipulated for. The Constitution ordains
affirmatively that each State shall have two
members of that body, and negatively that no
State shall by amendment be deprived of its equal
suffrage in the Senate without its consent. The
Constitution ordains affirmatively that
representatives and direct taxes shall be
apportioned among the several States according
to numbers, and negatively that no direct tax shall
be laid unless in proportion to the enumeration.
The founders anticipated that the expenditures of

the States, their counties, cities, and towns, would
chiefly be met by direct taxation on accumulated
property, while they expected that those of the
Federal government would be for the most part
met by indirect taxes. And in order that the power
of direct taxation by the general government
should not be exercised, except on necessity; and,
when the necessity arouse, should be so exercised
as to leave the States at liberty to discharge their
respective obligations, and should not be so
exercised, unfairly and discriminatingly, as to
particular States or otherwise, by a mere majority
vote, possibly of those whose constituents were
intentionally not subjected to any part of the
burden, the qualified grant was made. . . .
It is said that a tax on the whole income of

property is not a direct tax in the meaning of the
Constitution, but a duty, and, as a duty, leviable
without apportionment, whether direct or indirect.
We do not think so. Direct taxation was not
restricted in one breath, and the restriction blown
to the winds in another. . . .
We have unanimously held in this case that, so far

as this law operates on the receipts from
municipal bonds, it cannot be sustained, because
it is a tax on the power of the States, and on their
instrumentalities to borrow money, and
consequently repugnant to the Constitution. But if,
as contended, the interest when received has
become merely money in the recipient’s pocket,
and taxable as such without reference to the
source from which it came, the question is
immaterial whether it could have been originally
taxed at all or not. This was admitted by the
Attorney General with characteristic candor; and
it follows that, if the revenue derived from
municipal bonds cannot be taxed because the
source cannot be, the same rule applies to
revenue from any other source not subject to the
tax; and the lack of power to levy any but an
apportioned tax on real and personal property
equally exists as to the revenue therefrom.
Admitting that this act taxes the income of

property irrespective of its source, still we cannot
doubt that such a tax is necessarily a direct tax in
the meaning of the Constitution. . . .
We are not here concerned with the question

whether an income tax be or be not desirable, nor
whether such a tax would enable the government
to diminish taxes on consumption and duties on
imports, and to enter upon what may be believed
to be a reform of its fiscal and commercial system.
Questions of that character belong to the
controversies of political parties, and cannot be
settled by judicial decision. In these cases our
province is to determine whether this income tax
on the revenue from property does or does not
belong to the class of direct taxes. If it does, it is,
being unapportioned, in violation of the
Constitution, and we must so declare. . . .
We have considered the act only in respect of the

tax on income derived from real estate, and from
invested personal property, and have not
commented on so much of it as bears on gains or
profits from business, privileges, or employments,
in view of the instances in which taxation on
business, privileges, or employments has assumed
the guise of an excise tax and been sustained as
such.
Being of opinion that so much of the sections of

this law as lays a tax on income from real and
personal property is invalid, we are brought to the
question of the effect of that conclusion upon
these sections as a whole.
It is elementary that the same statute may be in

part constitutional and in part unconstitutional,
and if the parts are wholly independent of each
other, that which is constitutional may stand while
that which is unconstitutional will be rejected. And
in the case before us there is no question as to the
validity of this act, except sections twenty-seven to
thirty-seven, inclusive, which relate to the subject
which has been under discussion; and as to them
we think . . . that if the different parts “are so
mutually connected with and dependent on each
other, as to warrant a belief that the legislature
intended them as a whole, and that, if all could not
be carried into effect, the legislature would not
pass the residue independently, and some parts
are unconstitutional, all the provisions which are
thus dependent, conditional or connected, must
fall with them.” . . .
According to the census, the true valuation of real

and personal property in the United States in
1890 was $65,037,091,197, of which real estate
with improvements thereon made up
$39,544,544,333. Of course, from the latter must
be deducted, in applying these sections, all
unproductive property and all property whose net
yield does not exceed four thousand dollars; but,
even with such deductions, it is evident that the
income from realty formed a vital part of the
scheme for taxation embodied therein. If that be
stricken out, and also the income from all invested
personal property, bonds, stocks, investments of
all kinds, it is obvious that by far the largest part
of the anticipated revenue would be eliminated,
and this would leave the burden of the tax to be
borne by professions, trades, employments, or
vocations; and in that way what was intended as a
tax on capital would remain in substance a tax on
occupations and labor. We cannot believe that
such was the intention of Congress. We do not
mean to say that an act laying by apportionment a
direct tax on all real estate and personal property,
or the income thereof, might not also lay excise
taxes on business, privileges, employments, and
vocations. But this is not such an act; and the
scheme must be considered as a whole. Being
invalid as to the greater part, and falling, as the
tax would, if any part were held valid, in a
direction which could not have been contemplated
except in connection with the taxation considered
as an entirety, we are constrained to conclude that
sections twenty-seven to thirty-seven, inclusive, of
the act, which became a law without the signature
of the President on August 28, 1894, are wholly
inoperative and void.
Our conclusions may, therefore, be summed up as

follows:
1. First. We adhere to the opinion already
announced, that, taxes on real estate being
indisputably direct taxes, taxes on the rents or
income of real estate are equally direct taxes.
2. Second. We are of opinion that taxes on
personal property, or on the income of
personal property, are likewise direct taxes.
3. Third. The tax imposed by sections twenty-
seven to thirty-seven, inclusive, of the act of
1894, so far as it falls on the income of real
estate and of personal property, being a direct
tax within the meaning of the Constitution,
and, therefore, unconstitutional and void
because not apportioned according to
representation, all those sections, constituting
one entire scheme of taxation, are necessarily
invalid.
The decrees herein before entered in this court

will be vacated. The decrees below will be
reversed, and the cases remanded, with
instructions to grant the relief prayed.
MR. JUSTICE HARLAN,

dissenting.
Assuming it to be the settled construction of the
constitution that the general government cannot
tax lands, . . . except by apportioning the tax
among the states according to their respective
numbers, does it follow that a tax on incomes
derived from rents is a direct tax on the real
estate from which such rents arise?
In my judgment, a tax on income derived from real
property ought not to be, and until now has never
been, regarded by any court as a direct tax on
such property, within the meaning of the
constitution. As the great mass of lands in most of
the states do not bring any rents, and as incomes
from rents vary in the different states, such a tax
cannot possibly be apportioned among the states,
on the basis merely of numbers, with any
approach to equality of right among taxpayers,
any more than a tax on carriages or other personal
property could be so apportioned. And in view of
former adjudications, beginning with the Hylton
Case, and ending with the Springer Case, a
decision now that a tax on income from real
property can be laid and collected only by
apportioning the same among the states on the
basis of numbers may not improperly be regarded
as a judicial revolution that may sow the seeds of
hate and distrust among the people of different
sections of our common country. . . .
This 1895 editorial cartoon, published after the

Supreme Court’s decision in Pollock v. Farmers’
Loan & Trust, illustrates the defeat of the federal
income tax law of 1894. In 1913, however, the
situation was reversed when the states ratified the
Sixteenth Amendment, which gave the federal
government the power to tax income regardless of
source.
Library of Congress
While a tax on the land itself, whether at a fixed

rate applicable to all lands, without regard to their
value, or by the acre, or according to their market
value, might be deemed a direct tax, within the
meaning of the constitution, as interpreted in the
Hylton Case, a duty on rents is a duty on
something distinct and entirely separate from,
although issuing out of, the land. . . .
But the court, by its judgment just rendered, goes

far in advance, not only of its former decisions,
but of any decision heretofore rendered by an
American court. . . .
In my judgment,—to say nothing of the disregard

of the former adjudications of this court, and of
the settled practice of the government,—this
decision may well excite the gravest
apprehensions. It strikes at the very foundations
of national authority, in that it denies to the
general government a power which is or may
become vital to the very existence and
preservation of the Union in a national emergency,
such as that of war with a great commercial
nation, during which the collection of all duties
upon imports will cease or be materially
diminished. It tends to re-establish that condition
of helplessness in which congress found itself
during the period of the Articles of Confederation,
when it was without authority, by laws operating
directly upon individuals, to lay and collect,
through its own agents, taxes sufficient to pay the
debts and defray the expenses of government, but
was dependent in all such matters upon the good
will of the states, and their promptness in meeting
requisitions made upon them by congress.
Why do I say that the decision just rendered

impairs or menaces the national authority? The
reason is so apparent that it need only be stated.
In its practical operation this decision withdraws
from national taxation not only all incomes derived
from real estate, but tangible personal property,
“invested personal property, bonds, stocks,
investments of all kinds,” and the income that may
be derived from such property. This results from
the fact that, by the decision of the court, all such
personal property and all incomes from real estate
and personal property are placed beyond national
taxation otherwise than by apportionment among
the states on the basis simply of population. No
such apportionment can possibly be made without
doing gross injustice to the many for the benefit of
the favored few in particular states. Any attempt
upon the part of congress to apportion among the
states, upon the basis simply of their population,
taxation of personal property or of incomes, would
tend to arouse such indignation among the
freemen of America that it would never be
repeated. When, therefore, this court adjudges, as
it does now adjudge, that congress cannot impose
a duty or tax upon personal property, or upon
income arising either from rents of real estate or
from personal property, including invested
personal property, bonds, stocks, and investments
of all kinds, except by apportioning the sum to be
so raised among the states according to
population, it practically decides that, without an
amendment of the constitution,—two-thirds of
both houses of congress and three-fourths of the
states concurring,—such property and incomes
can never be made to contribute to the support of
the national government. . . .
I dissent from the opinion and judgment of the

court.
The Sixteenth Amendment

The decision to invalidate the entire income tax act
was quite unpopular. Because that statute had
placed a greater obligation on the wealthy, the ruling
convinced the middle and working classes that the
Supreme Court was little more than the defender of
the rich. Various political groups immediately began
working to reverse the impact of the Court’s decision
by means of either a constitutional amendment or
revised federal legislation. Labor and farming
interests supported a new income tax, as did
Progressive Republicans and Democratic Populists.
Opposition came primarily from conservative
Republicans in the Northeast.
Finally, in 1909 Congress began serious work on an

income tax measure. There were sufficient votes in
the legislature to reform the tax structure, moving
the federal government away from excessive
reliance on regressive tariffs and excise taxes. The
major question for legislators was whether to pass
another income tax bill or to propose a constitutional
amendment. Finding themselves in a minority,
conservative Republicans threw their support to an
amendment. They hoped the state legislatures would
not ratify it, but, even if they did, that the process
would take several years to complete.
Congress proposed a constitutional amendment to

authorize a federal income tax in July 1909 by
overwhelming votes of 77–0 in the Senate and 318–
14 in the House. The amendment received the
required number of approvals from the state
legislatures in February 1913 and became the
Sixteenth Amendment to the United States
Constitution: “The Congress shall have power to lay
and collect taxes on incomes, from whatever source
derived, without apportionment among the several
States, and without regard to any census or
enumeration.”
The amendment is one of only four designed to
overturn a Supreme Court precedent. It gave
Congress sufficient taxing authority to fund the
federal government without having to resort to
direct taxes. The Constitution now made all sources
of income subject to Congress’s taxing power and
removed any requirement that a tax on income be
apportioned on the basis of population.
Table 8-1
Sources: Historical Statistics of the United States:

Colonial Times to 1970 (Washington, DC: U.S. Bureau
of the Census, 1975); World Almanac and Book of Facts
2006 (New York: World Almanac Books, 2006), 90;
Budget of the United States (Washington, DC: Office of
Management and Budget, various years).
Note: The data represent the percentage of total
federal revenues for each of seven sources of taxation.
The data prior to ratification of the Sixteenth
Amendment in 1913 demonstrate the federal
government’s reliance on customs duties and excise
taxes. Data from the period after 1913 illustrate the
shift to income taxes as the primary sources for federal
tax dollars. Estimates for 2022 are from the Budget of
the United States for fiscal year 2019.
Congress wasted no time. In 1913 the legislature

imposed a 1 percent tax rate on individual incomes
in excess of $3,000 and on incomes of married
couples over $4,000. Not surprisingly, the statute’s
constitutionality was challenged in the Court, but the
justices upheld the law three years later in
Brushaber v. Union Pacific Railroad (1916) by a 7–2
vote. As shown in Table 8-1, the income tax is now
the primary source of federal revenue.
Taxation of Exports
Article I, Section 9, of the Constitution contains a
prohibition against the taxation of exports: “No Tax
or Duty shall be laid on Articles exported from any
State.” The purpose of this provision was to promote
trade by removing impediments to the sale of
American goods to other nations. In spite of the
absolute language of the ban, Congress on occasion
has passed assessments that have been attacked as
taxes on exports. Such was the issue under
consideration in United States v. United States Shoe
Corp.
United States v. United States Shoe Corp. 523 U.S.

360 (1998)
court/523/360.html


OPINION OF THE COURT: Ginsburg
Facts:
As part of the Water Resources Development Act
of 1986, Congress imposed the Harbor
Maintenance Tax (HMT). This legislation assessed
a uniform charge on shipments of commercial
cargo through the nation’s ports. The charge was
set at 0.125 percent of the cargo’s value.
Exporters, importers, and domestic shippers were
liable for the HMT, which was imposed at the time
of loading for exports and at the time of unloading
for other shipments. The Customs Service
collected the HMT and deposited the money in the
Harbor Maintenance Trust Fund. Congress could
appropriate amounts from the fund to pay for
harbor maintenance and development projects,
including costs associated with the St. Lawrence
Seaway, or related expenses.
United States Shoe Corporation paid the HMT for

articles the company exported from April to June
1994 and then filed a protest with the Customs
Service alleging that the toll was unconstitutional
to the extent it applied to exports. The Customs
Service responded with a form letter stating that
the HMT was a statutorily mandated user fee, not
an unconstitutional tax on exports. U.S. Shoe filed
suit in the Court of International Trade
challenging the constitutionality of the tax. The
federal government defended the HMT, claiming
that it was a legitimate user fee. The Court of
International Trade held that the tax was not a
user fee but a tax prohibited by Article I, Section
10. A divided court of appeals agreed, and the
United States took its case to the Supreme Court.
Arguments:
The Harbor Maintenance Tax is a permissible

fee on the use of the ports of the United
States.
Revenue measures that operate to compensate
the government for benefits supplied are not
prohibited by the export clause.
The fees are assessed only on those who use
the harbors. They do not discriminate against
any constitutionally protected interest.
Importers, exporters, and domestic shippers
are all subject to the same fees.
The funds collected are deposited in the Harbor
Maintenance Trust Fund and are used only for
the designated purpose of maintaining the
nation’s ports.
States Shoe Corp.:
There are no exceptions to the export clause’s
broad prohibition against any tax or duty
placed on exports.
To be permissible a fee must be applied
narrowly, be directly related to the services
provided by the government, and be no
greater than necessary to compensate the
government for the services rendered.
This revenue measure is based on the worth of
the cargo (ad valorem) and not on the size of
the vessel, the manner or extent of the use of
the harbor, or any attributes of the port. Ad
valorem assessments are taxes, not fees for
services rendered.
The Harbor Maintenance Tax is not remotely
related to the exporter’s use of harbor
services.
Justice Ginsburg Delivered the Opinion of the

Court.
The Export Clause of the Constitution states: “No

Tax or Duty shall be laid on Articles exported from
any State.” We held in United States v.
International Business Machines Corp. (IBM)
(1996), that the Export Clause categorically bars
Congress from imposing any tax on exports. The
Clause, however, does not rule out a “user fee,”
provided that the fee lacks the attributes of a
generally applicable tax or duty and is, instead, a
charge designed as compensation for government-
supplied services, facilities, or benefits. This case
presents the question whether the Harbor
Maintenance Tax (HMT), as applied to goods
loaded at United States ports for export, is an
impermissible tax on exports or, instead, a
legitimate user fee. We hold, in accord with the
Federal Circuit, that the tax, which is imposed on
an ad valorem basis, is not a fair approximation of
services, facilities, or benefits furnished to the
exporters, and therefore does not qualify as a
permissible user fee.
Two Terms ago, in IBM, this Court considered the

question whether a tax on insurance premiums
paid to protect exports against loss violated the
Export Clause. Distinguishing case law developed
under the Commerce Clause and the Import-
Export Clause, the Court held that the Export
Clause allows no room for any federal tax,
however generally applicable or
nondiscriminatory, on goods in export transit.
Before this Court’s decision in IBM, the
Government argued that the HMT, even if
characterized as a “tax” rather than a “user fee,”
should survive constitutional review “because it
applies without discrimination to exports, imports
and domestic commerce alike.” Recognizing that
IBM “rejected an indistinguishable contention,”
the Government now asserts only that HMT is “‘a
permissible user fee,’” a toll within the tolerance
of Export Clause precedent. Adhering to the
Court’s reasoning in IBM, we reject the
Government’s current position.
The HMT bears the indicia of a tax. Congress
expressly described it as “a tax on any port use,”
and codified the HMT as part of the Internal
Revenue Code. In like vein, Congress provided
that, for administrative, enforcement, and
jurisdictional purposes, the HMT should be
treated “as if [it] were a customs duty.” However,
“we must regard things rather than names,” in
determining whether an imposition on exports
ranks as a tax. The crucial question is whether the
HMT is a tax on exports in operation as well as
nomenclature or whether, despite the label
Congress has put on it, the exaction is instead a
bona fide user fee.
In arguing that the HMT constitutes a user fee,

the Government relies on our decisions in United
States v. Sperry Corp. (1989), Massachusetts v.
United States (1978), and Evansville-Vanderburgh
Airport Authority Dist. v. Delta Airlines, Inc.
(1972). In those cases, this Court upheld flat and
ad valorem charges as valid user fees. . . . Those
decisions involved constitutional provisions other
than the Export Clause, however, and thus do not
govern here. IBM plainly stated that the Export
Clause’s simple, direct, unqualified prohibition on
any taxes or duties distinguishes it from other
constitutional limitations on governmental taxing
authority. The Court there emphasized that the
“text of the Export Clause . . . expressly prohibits
Congress from laying any tax or duty on exports.”
Accordingly, the Court reasoned in IBM “[o]ur
decades-long struggle over the meaning of the
nontextual negative command of the dormant
Commerce Clause does not lead to the conclusion
that our interpretation of the textual command of
the Export Clause is equally fluid.” . . .
The guiding precedent for determining what

constitutes a bona fide user fee in the Export
Clause context remains our time-tested decision in
Pace [v. Burgess, 1876]. Pace involved a federal
excise tax on tobacco. Congress provided that the
tax would not apply to tobacco intended for
export. To prevent fraud, however, Congress
required that tobacco the manufacturer planned
to export carry a stamp indicating that intention.
Each stamp cost 25 cents (later 10 cents) per
package of tobacco. Congress did not limit the
quantity or value of the tobacco packaged for
export or the size of the stamped package;
“[t]hese were unlimited, except by the description
of the exporter or the convenience of handling.”
The Court upheld the charge, concluding that it

was “in no sense a duty on exportation,” but
rather “compensation given for services [in fact]
rendered.” In so ruling, the Court emphasized two
characteristics of the charge: It “bore no
proportion whatever to the quantity or value of
the package on which [the stamp] was affixed”;
and the fee was not excessive, taking into account
the cost of arrangements needed both “to give to
the exporter the benefit of exemption from
taxation, and . . . to secure . . . against the
perpetration of fraud.” Pace establishes that,
under the Export Clause, the connection between
a service the Government renders and the
compensation it receives for that service must be
closer than is present here. Unlike the stamp
charge in Pace, the HMT is determined entirely on
an ad valorem basis. The value of export cargo,
however, does not correlate reliably with the
federal harbor services used or usable by the
exporter. As the Federal Circuit noted, the extent
and manner of port use depend on factors such as
the size and tonnage of a vessel, the length of time
it spends in port, and the services it requires, for
instance, harbor dredging.
In sum, if we are “to guard against . . . the

imposition of a [tax] under the pretext of fixing a
fee,” Pace v. Burgess, and resist erosion of the
Court’s decision in IBM, we must hold that the
HMT violates the Export Clause as applied to
exports. This does not mean that exporters are
exempt from any and all user fees designed to
defray the cost of harbor development and
maintenance. It does mean, however, that such a
fee must fairly match the exporters’ use of port
services and facilities.
For the foregoing reasons, the judgment of the

Court of Appeals for the Federal Circuit is
Affirmed.
Intergovernmental Tax
Immunity
The operation of a federal system carries within it
inherent risks of conflict between the national
government and the states. When both levels of
government are authorized to tax, one government
can use the power as a weapon against the other. No
specific provision of the Constitution prohibits the
federal government from taxing state governments
or vice versa, but for the federal system to operate
effectively, the entities need to avoid such conflicts.
Establishing the Tax Immunity

Doctrine
The issue of intergovernmental tax immunity was
first raised in McCulloch v. Maryland (1819), which
tested the constitutional validity of the national
bank. The Supreme Court’s decision in McCulloch
was tremendously important in a number of ways.
We have already discussed it in terms of the
development of congressional power and the concept
of federalism, but McCulloch also is relevant to the
constitutional limitations on the power to tax.
McCulloch involved a challenge to a tax imposed by

the state of Maryland on the national bank, a
creation of the federal government. Supporters of
federal power argued that the Union could not be
maintained if the states were permitted to place
debilitating taxes on any operation of the federal
government of which they disapproved. States’
rights advocates claimed that the power of the states
to tax within their own borders was absolute and
that there was no constitutional bar to such taxes.
The Supreme Court ruled in favor of the federal
government, declaring the state tax unconstitutional.
With his hard-hitting opinion for a unanimous Court,
Chief Justice Marshall put an immediate stop to a
conflict that would have severely weakened the
Union if allowed to continue.
In doing so, Marshall created the doctrine of

intergovernmental tax immunity. He wrote, “[T]he
power to tax involves the power to destroy; . . . the
power to destroy may defeat and render useless the
power to create; . . . there is plain repugnance, in
conferring on one government a power to control the
constitutional measures of another.” The ability of
the states to tax the legitimate operations of the
federal government is simply incompatible with the
framers’ intent of creating viable government units
at both the national and state levels.
Marshall’s decision in McCulloch was consistent

with his general philosophy of favoring a strong
national government. But was the doctrine of
intergovernmental tax immunity a two-way street?
Marshall’s opinion fell short of proclaiming that the
national government was prohibited from taxing the
legitimate operations of the states. He was more
concerned in this case with reinforcing principles of
federal supremacy. Yet a strong case can be made
that it would also violate the principles of the
Constitution for the federal government to be
permitted to destroy the states through its taxing
power.
The first case that tested whether the states enjoyed

immunity from federal taxation was Collector v.
Day (1871), which stemmed from an application of
the Civil War federal income tax law. Judge J. M. Day
of the probate court in Massachusetts objected to
paying a federal tax on his income on
intergovernmental tax immunity grounds. Three
decades earlier the Supreme Court had ruled that
the state governments could not tax the income of
federal officeholders,9 and now Day was asking the
Court to adopt the converse of that. The Supreme
Court held, in an 8–1 vote, that Day’s judicial income
was immune from federal taxation. The Court
reasoned that the Constitution protects the
legitimate functions of the state. The federal
government cannot use its taxation powers to curtail
or destroy the operations or instruments of the state,
and the probate court system is a legitimate and
necessary agency of state government. To allow the
federal government to tax the income of state judges
would be to open the door for Congress to tax all
state government functions.
9 Dobbins v. Commissioners of Erie County (1842).
For several decades the justices vigorously

maintained the doctrine that the Constitution did not
allow one government to tax the essential functions
of another. In the Pollock income tax decisions, as we
have already seen, the Court struck down a federal
tax on interest income from state and municipal
bonds as an unconstitutional burden on the state’s
authority to borrow. The Court struck down state
taxes on income from federal land leases and
federally granted patents and copyrights, and from
the sales of petroleum products to the federal
government.10 It also invalidated a federal tax on
revenues derived from the sales of goods to state
agencies.11 The only significant standard the Court
imposed in this line of cases was that immunity
covered only essential government functions.
Consequently, the justices upheld a federal tax on
the profits of South Carolina’s state-run liquor
stores.12 As a merchant of alcoholic beverages, the
state was acting as a private business, not exercising
a government function, and therefore was not
immune from federal taxation.
10 Gillespie v. Oklahoma (1922) and Long v.

Rockwood (1928) concerned patents and copyrights;
Panhandle Oil Co. v. Mississippi (1928) dealt with
petroleum sales.
11 Indian Motorcycle Co. v. United States (1931).
12 South Carolina v. United States (1905).
Erosion of the Tax Immunity

Doctrine
The Court’s general support for the tax immunity
doctrine in the early 1900s was closely related to its
conservatism and adherence to dual federalism; it
opposed both a big federal government and
comprehensive regulation of the economy. When the
New Deal justices took control of the Court,
however, support for the tax immunity doctrine
began to wane. A series of Court decisions modified
or reversed the earlier rulings that had established
an almost impenetrable barrier against one
government taxing the instruments or operations of
another.
In Helvering v. Gerhardt (1938), the Court

overruled Dobbins v. Commissioners of Erie County
(1842) and permitted states to tax the income of
federal officials. The very next year the justices
overruled Collector v. Day in Graves v. New York ex
rel. O’Keefe (1939), holding that there was no
constitutional bar to the federal government taxing
the income of state employees. “The theory,” said the
Court, “that a tax on income is legally or
economically a tax on its source, is no longer
tenable.” Also falling were bans on taxing profits
from doing business with state or federal
government agencies. The Court went so far as to
allow a state to impose taxes on a federal contractor
even when those taxes were passed on to the federal
government through a cost-plus contract.13
13 Alabama v. King and Boozer (1941).
Although these rulings seriously weakened the

doctrine of intergovernmental tax immunity, the
principle still has some vitality. It would be
unconstitutional for a state to place a tax on cases
filed in the federal courts operating within its
boundaries, or for the federal government to impose
an excise tax on the tickets issued by a state
highway patrol. But aside from these obvious
examples, where is the line between permissible and
impermissible taxation? The Court helped answer
that question in South Carolina v. Baker (1988),
which involved a challenge to a federal law taxing
the income from long-term state and city bonds. To
uphold the federal tax, the Court would have to
overrule that portion of the Pollock decision that
conferred immunity on such debt instruments issued
by the state. The opinion by Justice William J.
Brennan Jr. not only answered the specific question
presented to the Court but also provided an
informative review of the status of the
intergovernmental tax immunity doctrine. Also
instructive is the dissenting opinion of Justice
Sandra Day O’Connor, who vigorously defended the
immunity position.
South Carolina v. Baker 485 U.S. 505 (1988)
court/485/505.html

https://www.oyez.org/cases/1987/94_orig.
Vote: 7 (Blackmun, Brennan, Marshall, Rehnquist,

Scalia, Stevens, White)
1 (O’Connor)
CONCURRING OPINIONS: Rehnquist,
Scalia, Stevens
DISSENTING OPINION: O’Connor
NOT PARTICIPATING: Kennedy
Facts:
Investors in government bonds make money from
the interest paid by those bonds and also may
benefit from capital gains if a bond is sold to
another investor for a profit. State and municipal
bonds traditionally have been issued either as
bearer bonds or as registered bonds. Interest from
bearer bonds is presumed to belong to the person
who possesses the bond, and the interest is paid
when the owner redeems coupons attached to the
bonds. No systematic record is kept of interest
payments or the sale of such bonds. Owners of
registered bonds are recorded on a central list,
and if a bond is sold the transaction must be
recorded. The owner of record automatically
receives interest payments by check or electronic
transfer of funds. State and municipal bonds of
both types have been free from federal taxation on
interest earned since the Supreme Court’s
decision in Pollock. Profit from the sale of bonds,
however, is subject to tax.
In 1982 Congress passed the Tax Equity and

Fiscal Responsibility Act. Section 310(b)(1) of that
statute removed the federal income tax exemption
for interest earned on publicly offered long-term
bonds issued by state and local governments
unless the bonds were issued in registered form.
The primary purpose of Section 310 was to
increase compliance with federal tax laws and
thereby increase federal revenues. Congress
estimated that income of $97 billion was going
unreported. Bearer bonds became a target of
reform efforts because of the ease with which they
could be bought and sold. If the ownership
transfer was not registered, the bondholder could
evade capital gains taxes on profits from the sale.
Unregistered bonds also were used to evade
estate taxes. Other provisions in this law
encouraged the federal government and private
corporations to stop issuing nonregistered long-
term bonds.
The state of South Carolina sued the United

States, in the name of Secretary of the Treasury
James Baker, to have the law declared
unconstitutional as a violation of the Tenth
Amendment and the intergovernmental tax
immunity doctrine. The case was heard on original
jurisdiction. A special master appointed by the
Court recommended that the justices uphold the
validity of the law.
Arguments:
For the plaintiff, state of South Carolina:
The federal government lacks the authority to

dictate how a state carries out its essential
functions. This law violates state autonomy
guaranteed by the Tenth Amendment and
other constitutional provisions.
Placing a federal tax on income from state and
local bonds will require the states to increase
the interest rates paid to those who buy the
state’s bonds. As a consequence, the federal
government will be placing a significant burden
on the states’ revenue powers.
The Court should not overrule Pollock v.
Farmers’ Loan & Trust, but it should honor the
doctrine of intergovernmental tax immunity.
For the defendant, James A.

Baker III, U.S. Secretary of the
Treasury:
The Court should reconsider the holding in
Pollock v. Farmers’ Loan & Trust that interest
income from state and local bonds is immune
from nondiscriminatory federal taxation.
The law targets the form in which state and
local bonds are issued. It does not restrict the
states’ revenue-gathering authority. The law
does not violate the Tenth Amendment.
The tax is applied to those who do business
with the state, not to the state itself.
Any administrative cost associated with issuing
registered bonds is incidental and cannot be
considered a tax on the state.
Justice Brennan Delivered the Opinion of the

Court.
South Carolina contends that even if a statute
banning state bearer bonds entirely would be
constitutional, §310 unconstitutionally violates the
doctrine of intergovernmental tax immunity
because it imposes a tax on the interest earned on
a state bond. We agree with South Carolina that
§310 is inconsistent with Pollock v. Farmers’ Loan
& Trust Co. (1895), which held that any interest
earned on a state bond was immune from federal
taxation. . . .
Under the intergovernmental tax immunity

jurisprudence prevailing at the time, Pollock did
not represent a unique immunity limited to income
derived from state bonds. Rather, Pollock merely
represented one application of the more general
rule that neither the federal nor the state
governments could tax income an individual
directly derived from any contract with another
government. Not only was it unconstitutional for
the Federal Government to tax a bondowner on
the interest she received on any state bond, but it
was also unconstitutional to tax a state employee
on the income earned from his employment
contract, to tax a lessee on income derived from
lands leased from a State, or to impose a sales tax
on proceeds a vendor derived from selling a
product to a state agency. Income derived from
the same kinds of contracts with the Federal
Government were likewise immune from taxation
by the States. . . .
This general rule was based on the rationale that

any tax on income a party received under a
contract with the government was a tax on the
contract and thus a tax “on” the government
because it burdened the government’s power to
enter into the contract. . . . Thus, although a tax
was collected from an independent private party,
the tax was considered to be “on” the government
because the tax burden might be passed on to it
through the contract. This reasoning was used to
define the basic scope of both federal and state
tax immunities with respect to all types of
government contracts. . . .
The rationale underlying Pollock and the general

immunity for government contract income has
been thoroughly repudiated by modern
intergovernmental immunity case-law. . . .
With the rationale for conferring a tax immunity

on parties dealing with another government
rejected, the government contract immunities
recognized under prior doctrine were, one by one,
eliminated. . . .
In sum, then, under current intergovernmental tax

immunity doctrine the States can never tax the
United States directly but can tax any private
parties with whom it does business, even though
the financial burden falls on the United States, as
long as the tax does not discriminate against the
United States or those with whom it deals. A tax is
considered to be directly on the Federal
Government only “when the levy falls on the
United States itself, or on an agency or
instrumentality so closely connected to the
Government that the two cannot realistically be
viewed as separate entities.” The rule with respect
to state tax immunity is essentially the same,
except that at least some nondiscriminatory
federal taxes can be collected directly from the
States even though a parallel state tax could not
be collected directly from the Federal
Government.
We thus confirm that subsequent case law has

overruled the holding in Pollock that state bond
interest is immune from a nondiscriminatory
federal tax. We see no constitutional reason for
treating persons who receive interest on
government bonds differently than persons who
receive income from other types of contracts with
the government, and no tenable rationale for
distinguishing the costs imposed on States by a
tax on state bond interest from the costs imposed
by a tax on the income from any other state
contract. . . . Likewise, the owners of state bonds
have no constitutional entitlement not to pay taxes
on income they earn from state bonds, and States
have no constitutional entitlement to issue bonds
paying lower interest rates than other issuers. . . .
TEFRA [Tax Equity and Fiscal Responsibility Act]

§310 thus clearly imposes no direct tax on the
States. The tax is imposed on and collected from
bondholders, not States, and any increased
administrative costs incurred by States in
implementing the registration system are not
“taxes” within the meaning of the tax immunity
doctrine. . . . Nor does §310 discriminate against
States. The provisions of §310 seek to assure that
all publicly offered long-term bonds are issued in
registered form, whether issued by state or local
governments, the Federal Government, or private
corporations. Accordingly, the Federal
Government has directly imposed the same
registration requirement on itself that it has
effectively imposed on States. The incentives
States have to switch to registered bonds are
necessarily different than those of corporate bond
issuers because only state bonds enjoy any
exemption from the federal tax on bond interest,
but the sanctions for issuing unregistered
corporate bonds are comparably severe. Removing
the tax exemption for interest earned on state
bonds would not, moreover, create a
discrimination between state and corporate bonds
since corporate bond interest is already subject to
federal tax.
Because the federal imposition of a bond

registration requirement on States does not
violate the Tenth Amendment and because a
nondiscriminatory federal tax on the interest
earned on state bonds does not violate the
intergovernmental tax immunity doctrine, we
uphold the constitutionality of §310. . . .
It is so ordered.
JUSTICE O’CONNOR,
dissenting.
The Court today overrules a precedent that it has
honored for nearly a hundred years and expresses
a willingness to cancel the constitutional immunity
that traditionally has shielded the interest paid on
state and local bonds from federal taxation.
Henceforth the ability of state and local
governments to finance their activities will depend
in part on whether Congress voluntarily abstains
from tapping this permissible source of additional
income tax revenue. I believe that state autonomy
is an important factor to be considered in
reviewing the National Government’s exercise of
its enumerated powers. I dissent from the decision
to overrule Pollock v. Farmers’ Loan & Trust Co.
(1895), and I would invalidate Congress’ attempt
to regulate the sovereign States by threatening to
deprive them of this tax immunity, which would
increase their dependence on the National
Government. . . .
Long-term debt obligations are an essential source

of funding for state and local governments. In
1974, state and local governments issued
approximately $23 billion of new municipal bonds;
in 1984, they issued $102 billion of new bonds.
State and local governments rely heavily on
borrowed funds to finance education, road
construction, and utilities, among other purposes.
As the Court recognizes, States will have to
increase the interest rates they pay on bonds by
28–35% if the interest is subject to the federal
income tax. Governmental operations will be
hindered severely if the cost of capital rises by
one-third. If Congress may tax the interest paid on
state and local bonds, it may strike at the very
heart of state and local government activities. . . .
Federal taxation of state activities is inherently a

threat to state sovereignty. As Chief Justice
Marshall observed long ago, “the power to tax
involves the power to destroy.” Justice Holmes
later qualified this principle, observing that “[t]he
power to tax is not the power to destroy while this
Court sits.” If this Court is the States’ sole
protector against the threat of crushing taxation,
it must take seriously its responsibility to sit in
judgment of federal tax initiatives. I do not think
that the Court has lived up to its constitutional
role in this case. The Court has failed to enforce
the constitutional safeguards of state autonomy
and self-sufficiency that may be found in the Tenth
Amendment and the Guarantee Clause, as well as
in the principles of federalism implicit in the
Constitution. I respectfully dissent.
South Carolina v. Baker continued a long-standing

trend of the Court toward eroding the doctrine of
intergovernmental tax immunity. A statement of the
contemporary status of the doctrine, in Justice
Brennan’s words, is that “the States can never tax
the United States directly but can tax any private
parties with whom it does business, even though the
financial burden falls on the United States, as long
as the tax does not discriminate against the United
States or those with whom it deals.” A similar,
though not quite as rigid, prohibition applies to
federal taxes on the states. Although this decision
affirmed the authority of the federal government to
tax interest income from state and municipal bonds,
Congress for the most part has declined to exercise
that power.
Even in cases such as South Carolina v. Baker that

limited intergovernmental tax immunity, the Court
repeatedly has stressed the principle that taxes must
be nondiscriminatory. If a state wishes to tax a
company’s profits from a business transaction with
the federal government, the tax obligation must be
the same as that imposed on profits from business
with nongovernment parties. This bar against
discriminatory taxation was tested in Davis v.
Michigan Dept. of Treasury (1989). At issue was a
Michigan tax exemption given to state government
retirees but not to federal government retirees.
Justice Anthony Kennedy’s opinion for the Court
reviews the immunity doctrine’s development and
answers the challenge presented by the case.
Davis v. Michigan Dept. of Treasury 489 U.S. 803

(1989)
court/489/803.html

Vote: 8 (Blackmun, Brennan, Kennedy, Marshall,

O’Connor, Rehnquist, Scalia, White)
1 (Stevens)

DISSENTING OPINION: Stevens
Facts:
Michigan’s revenue code provided that retirement
benefits paid to individuals by the state or any of
its political subdivisions were exempt from state
income taxes. Retirement benefits from any other
source, including federal retirement income, were
subject to the tax. Paul S. Davis spent his career in
federal service, as a lawyer for the Securities and
Exchange Commission and then as an
administrative law judge. As a Michigan resident,
he paid state income taxes on his federal
retirement benefits. In 1984, however, Davis
petitioned the state for a refund of taxes paid on
his federal benefits for the 1979–1984 tax years.
Davis believed that the state’s policy of taxing

federal retirement benefits but not taxing state
retirement benefits violated a federal statute (4
U.S.C. §111) passed in 1939 to clarify the doctrine
of intergovernmental tax immunity. The law
provided,
The United States consents to the taxation of

pay or compensation for personal service as
an officer or employee of the United States . . .
by a duly constituted taxing authority having
jurisdiction, if the taxation does not
discriminate against the officer or employee
because of the source of the pay or
compensation.
State revenue authorities and state courts

rejected Davis’s claim. The state argued that Davis
was not covered by the act because he was no
longer an “employee” of the federal government
but simply a receiver of annuity benefits.
Furthermore, Michigan claimed that the state law
did not discriminate against federal employees but
only provided a special exemption for state
retirees, a reasonable incentive intended to attract
and keep qualified people in state government
service.
Davis appealed to the U.S. Supreme Court and, in

fact, personally argued his case before the
justices. He enjoyed the help of a powerful ally,
however, when the U.S. government supported his
claim as a friend of the court.
Arguments:
For the appellant, Paul S. Davis:
Under federal law states may tax the
compensation of federal employees as long as
the tax does not discriminate on the basis of
the source of the income.
Michigan taxes the income from federal
retirement programs but does not tax the
income from state retirement programs.
Treating the income from federal and state
retirement plans differently violates the
intergovernmental tax immunity doctrine and
the federal law allowing the nondiscriminatory
taxation of income from federal employment.
For the appellee, state of

Michigan Department of
Treasury:
The intergovernmental tax immunity doctrine
is based on the supremacy clause and protects
only governments, not individuals, from the
taxation efforts of other governments.
The intergovernmental tax immunity doctrine
protects the federal government from state
taxation that is aimed at or threatens the
efficient operation of the government. There is
no evidence that Michigan’s tax on retirement
incomes of former federal employees places
any burden on any federal government
program.
Federal law bans discriminatory state taxes on
the income of federal employees. Davis is no
longer a federal employee. His retirement
program income is not “compensation for
personal service as an officer or employee of
the United States.”
Exempting retirement income from taxation for
former state government employees serves a
legitimate public purpose of fostering Michigan
public employment.

Court.
Section 111 was enacted as part of the Public

Salary Tax Act of 1939, the primary purpose of
which was to impose federal income tax on the
salaries of all state and local government
employees. Prior to the adoption of the Act,
salaries of most government employees, both state
and federal, generally were thought to be exempt
from taxation by another sovereign under the
doctrine of intergovernmental tax immunity. This
doctrine had its genesis in McCulloch v. Maryland
(1819), which held that the State of Maryland
could not impose a discriminatory tax on the Bank
of the United States. Chief Justice Marshall’s
opinion for the Court reasoned that the Bank was
an instrumentality of the Federal Government
used to carry into effect the Government’s
delegated powers, and taxation by the State would
unconstitutionally interfere with the exercise of
those powers.
For a time, McCulloch was read broadly to bar

most taxation by one sovereign of the employees
of another. See Collector v. Day (1871)
(invalidating federal income tax on salary of state
judge); Dobbins v. Commissioners of Erie County
(1842) (invalidating state tax on federal officer).
This rule “was based on the rationale that any tax
on income a party received under a contract with
the government was a tax on the contract and
thus a tax ‘on’ the government because it
burdened the government’s power to enter into
the contract.” South Carolina v. Baker (1988).
In subsequent cases, however, the Court began to

turn away from its more expansive applications of
the immunity doctrine. Thus, in Helvering v.
Gerhardt (1938), the Court held that the Federal
Government could levy nondiscriminatory taxes on
the incomes of most state employees. The
following year, Graves v. New York ex rel. O’Keefe
(1939) overruled the Day-Dobbins line of cases
that had exempted government employees from
nondiscriminatory taxation. After Graves,
therefore, intergovernmental tax immunity barred
only those taxes that were imposed directly on one
sovereign by the other or that discriminated
against a sovereign or those with whom it dealt.
It was in the midst of this judicial revision of the

immunity doctrine that Congress decided to
extend the federal income tax to state and local
government employees. The Public Salary Tax Act
was enacted after Helvering v. Gerhardt had
upheld the imposition of federal income taxes on
state civil servants, and Congress relied on that
decision as support for its broad assertion of
federal taxing authority. However, the Act was
drafted, considered in Committee, and passed by
the House of Representatives before the
announcement of the decision in Graves v. New
York ex rel. O’Keefe, which for the first time
permitted state taxation of federal employees. As
a result, during most of the legislative process
leading to adoption of the Act it was unclear
whether state taxation of federal employees was
still barred by intergovernmental tax immunity
despite the abrogation of state employees’
immunity from federal taxation. . . .
Dissatisfied with this uncertain state of affairs,

and concerned that considerations of fairness
demanded equal tax treatment for state and
federal employees, Congress decided to ensure
that federal employees would not remain immune
from state taxation at the same time that state
government employees were being required to pay
federal income taxes. Accordingly, section 4 of the
proposed Act (now section 111) expressly waived
whatever immunity would have otherwise shielded
federal employees from nondiscriminatory state
taxes. . . .
Section 111 did not waive all aspects of
intergovernmental tax immunity, however. The
final clause of the section contains an exception
for state taxes that discriminate against federal
employees on the basis of the source of their
compensation. This nondiscrimination clause
closely parallels the nondiscrimination component
of the constitutional immunity doctrine which has,
from the time of McCulloch v. Maryland, barred
taxes that “operat[e] so as to discriminate against
the Government of those with whom it deals.”
. . . When Congress codifies a judicially defined

concept, it is presumed, absent an express
statement to the contrary, that Congress intended
to adopt the interpretation placed on that concept
by the courts. Hence, we conclude that the
retention of immunity in section 111 is
coextensive with the prohibition against
discriminatory taxes embodied in the modern
constitutional doctrine of intergovernmental tax
immunity.
. . . Thus, the dispositive question in this case is

whether the tax imposed on appellant is barred by
the doctrine of intergovernmental tax immunity.
It is undisputed that Michigan’s tax system

discriminates in favor of retired state employees
and against retired federal employees. The State
argues, however, that appellant is not entitled to
claim the protection of the immunity doctrine, and
that in any event the State’s inconsistent
treatment of Federal and State Government
retirees is justified by meaningful differences
between the two classes.
In support of its first contention, the State points
out that the purpose of the immunity doctrine is to
protect the governments and not private entities
or individuals. As a result, so long as the
challenged tax does not interfere with the Federal
Government’s ability to perform its governmental
functions, the constitutional doctrine has not been
violated.
It is true that intergovernmental tax immunity is

based on the need to protect each sovereign’s
governmental operations from undue interference
by the other. But it does not follow that private
entities or individuals who are subjected to
discriminatory taxation on account of their
dealings with a sovereign cannot themselves
receive the protection of the constitutional
doctrine. Indeed, all precedent is to the contrary. .
..
Under our precedents, “[t]he imposition of a

heavier tax burden on [those who deal with one
sovereign] than is imposed on [those who deal
with the other] must be justified by significant
differences between the two classes.” Phillips
Chemical Co. v. Dumas Independent School
District [1960]. . . .
The State points to two allegedly significant

differences between federal and state retirees.
First, the State suggests that its interest in hiring
and retaining qualified civil servants through the
inducement of a tax exemption for retirement
benefits is sufficient to justify the preferential
treatment of its retired employees. This argument
is wholly beside the point, however, for it does
nothing to demonstrate that there are “significant
differences between the two classes” themselves;
rather, it merely demonstrates that the State has a
rational reason for discriminating between two
similar groups of retirees. The State’s interest in
adopting the discriminatory tax, no matter how
substantial, is simply irrelevant to an inquiry into
the nature of the two classes receiving
inconsistent treatment.
Second, the State argues that its retirement

benefits are significantly less munificent than
those offered by the Federal Government, in terms
of vesting requirements, rate of accrual, and
computation of benefit amounts. The substantial
differences in the value of the retirement benefits
paid the two classes should, in the State’s view,
justify the inconsistent tax treatment.
Even assuming the State’s estimate of the relative

value of state and federal retirement benefits is
generally correct, we do not believe this difference
suffices to justify the type of blanket exemption at
issue in this case. While the average retired
federal civil servant receives a larger pension than
his state counterpart, there are undoubtedly many
individual instances in which the opposite holds
true. A tax exemption truly intended to account for
differences in retirement benefits would not
discriminate on the basis of the source of those
benefits, as Michigan’s statute does; rather, it
would discriminate on the basis of the amount of
benefits received by individual retirees. . . .
For these reasons, we conclude that the Michigan

Income Tax Act violates principles of
intergovernmental tax immunity by favoring
retired state and local government employees over
retired federal employees. . . .
. . . The judgment of the Court of Appeals is

reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.

The Court today strikes down a state tax that
applies equally to the vast majority of Michigan
residents, including federal employees, because it
treats retired state employees differently from
retired federal employees. The Court’s holding is
not supported by the rationale for the
intergovernmental immunity doctrine and is not
compelled by our previous decisions. I cannot join
the unjustified, court-imposed restriction on a
State’s power to administer its own affairs. . . .
If Michigan were to tax the income of federal

employees without imposing a like tax on others,
the tax would be plainly unconstitutional. Cf.
McCulloch v. Maryland (1819). On the other hand,
if the State taxes the income of all its residents
equally, federal employees must pay the tax.
Graves v. New York ex rel. O’Keefe (1939). The
Michigan tax here applies to approximately 4½
million individual taxpayers in the State, including
the 24,000 retired federal employees. It exempts
only the 130,000 retired state employees. Once
one understands the underlying reason for the
McCulloch holding [the immunity doctrine is a
check against the abusive use of the taxing power
by one sovereign against the other], it is plain that
this tax does not unconstitutionally discriminate
against federal employees. . . .
Today, it is not the great Chief Justice’s dictum

about how the power to tax includes the power to
destroy that obscures the issue in a web of
unreality; it is the virtually automatic rejection of
anything that can be labeled “discriminatory.” The
question in this case deserves more careful
consideration than is provided by the mere use of
that label. It should be answered by considering
whether the ratio decidendi of our holding in
McCulloch v. Maryland is applicable to this quite
different case. It is not. I, therefore, respectfully
dissent.
As a result of this decision, Paul Davis received tax

refunds of $4,299. But the impact of the decision
extended far beyond Davis. Fourteen other states
had similar discriminatory tax provisions. As a
consequence, this ruling cost these states hundreds
of millions of dollars in tax refunds to federal
retirees and lost future revenues. The states were
required to revise their laws, making a choice
between extending the tax exemptions to retired
federal employees or eliminating the exemption
granted to state and local retirees. The Court’s
decision in Davis reminds us that the tax immunity
doctrine remains viable in spite of decisions that
have imposed limitations on it.
Taxation as a Regulatory Power

Normally, we think of taxation as a method of
funding the government. Yet Marshall’s well-known
statement that the “power to tax involves the power
to destroy” was an early recognition that taxes can
be used for purposes other than raising revenue.
Excessive taxation can make the targeted activities
so unprofitable that engaging in them is no longer
feasible. Think of the taxes placed on tobacco
products intended not only to raise revenue but also
to discourage smoking. The converse also is true.
Favorable tax status, including tax exemptions, can
encourage preferred activities, such as the tax
advantages related to home ownership. These
observations raise several important constitutional
questions regarding the taxation powers of the
federal government: Is it proper for the United
States to impose taxes for reasons other than
revenue raising? Is it constitutional for the
government to use taxation as a method of
regulation? Is it valid for Congress to enact tax laws
as means of controlling activities not otherwise
within the jurisdiction of the federal government?
Here we are confronting a question similar to one
we examined relative to the commerce clause: May
the federal government use the power to tax as the
equivalent of a state’s police power?
Taxation for Nonrevenue

Purposes
From the beginning, Congress has used its authority
to tax for purposes other than raising revenue.
Before the ratification of the Sixteenth Amendment,
the federal government relied heavily on the funds
raised through customs duties. In deciding what
imported products to tax and at what level, the
legislators clearly were guided by their policy
preferences. Federal tariffs protected certain
industries from imports and allowed them to grow
with little foreign competition. The practice of
combining revenue gathering with other policy
objectives continues to this day.
The only serious challenge to the use of import taxes

as a regulatory mechanism came in Hampton & Co.
v. United States (1928). Hampton Company
imported into New York a quantity of barium dioxide
that was assessed a duty of six cents per pound, two
cents higher than the rate set by Congress. The
legislature had, however, authorized the president to
raise or lower tariff duties up to 50 percent of the
amount set by Congress whenever the chief
executive found that such adjustments were
necessary for equitable foreign trade. In this case
President Calvin Coolidge had concluded that an
increased tariff was necessary to equalize the
barium dioxide production costs between Germany
and the United States. Hampton objected to the tax,
claiming that the flexible tariff was an improper
delegation of legislative power to the executive
branch and that Congress violated the Constitution
by using the taxation powers for reasons other than
revenue gathering. As we saw in Chapter 5, the
Supreme Court ruled that the delegation was proper.
The justices also held in Hampton that Congress did

not have to rely exclusively on revenue needs when
it constructed tariff laws. In reaching this
conclusion, the Court showed a deference to history.
Chief Justice William Howard Taft, writing for the
majority, noted that the very first revenue act in
1789 imposed import duties with an eye toward
encouraging growth of domestic industry and
protecting it from foreign competition. The Court
was not likely to rule unconstitutional a practice that
had been followed uninterrupted for almost a
century and a half. “So long as the motive of
Congress and the effect of its legislative action are
to secure revenue for the benefit of the general
government,” Taft wrote, “the existence of other
motives in the selection of the subjects of taxes
cannot invalidate Congressional action.”
Deciding that Congress may impose import duties

with regulatory purposes does not necessarily
answer a similar question with respect to excise
taxes. Customs duties, after all, have a limited range.
They can be applied only to those goods that are
brought into the country from abroad. Excise taxes
can be applied to the broad spectrum of domestic
goods, services, and activities. The only restriction
on such taxes explicitly mentioned in the
Constitution is that they be geographically uniform.
But is there an implied requirement that excise taxes
can be generated only by revenue objectives, or can
Congress regulate through the use of the excise? If
Congress is allowed to regulate domestic activities
through the power to tax, does that not give the
federal government the equivalent of a police power
that the framers reserved to the states?
Shortly after the Civil War, the Court heard Veazie

Bank v. Fenno (1869), which presented a challenge
to a federal excise tax that was imposed far more to
regulate the economy than to raise revenue. In 1866
Congress passed a law placing a 10 percent tax on
notes issued by state banks. The law was intended to
protect the newly chartered national bank from state
competition by making these notes far too costly for
state banks to issue. Veazie Bank paid the tax under
protest, claiming that Congress had no authority to
issue such an excise. But in a 5–2 decision, the Court
held that the tax was proper given the constitutional
power of Congress to regulate the monetary system.
Does the Veazie Bank decision mean that Congress

may impose excise taxes for any regulatory purpose
or only as a means of promoting a power already
granted to the federal government? The first major
case to confront this question focused on a federal
excise tax placed on margarine.
McCray v. United States 195 U.S. 27 (1904)
court/195/27.html
Vote: 6 (Brewer, Day, Harlan, Holmes, McKenna,
White)
3 (Brown, Fuller, Peckham)
OPINION OF THE COURT: White
Facts:
In the latter half of the nineteenth century, food
producers developed a commercially marketable
oleomargarine. The product was made of oleo oil,
lard, milk, cream, and salt. It had a taste and
consistency similar to butter but was less
expensive. Especially successful was a margarine
that was artificially colored to make the naturally
white product look like butter. As margarine grew
in popularity, the dairy industry became
concerned and demanded protection. In response,
Congress passed the Oleomargarine Act of 1886
and amended it in 1902. In addition to licensing
producers and retailers of margarine, the statute
imposed an excise tax of one-quarter cent per
pound on uncolored margarine and a tax of ten
cents per pound on artificially colored margarine.
The margarine manufacturers were responsible
for paying the tax. Although the act raised
revenue, its central purpose was to protect the
dairy industry by raising the price of margarine
and discouraging the sale of the artificially colored
product.
Leo McCray, a licensed retail seller of margarine,

was assessed a $50 penalty for knowingly
purchasing from the Ohio Butterine Company a
fifty-pound package of margarine for resale on
which sufficient taxes had not been paid. The
package bore the one-quarter cent tax stamps, but
the margarine was artificially colored and thus
subject to the higher tax. McCray challenged his
fine, claiming that the federal tax was
unconstitutional. The lower courts upheld the
validity of the tax.
Arguments:
For the plaintiff in error, Leo W. McCray:
The tax on oleomargarine colored like butter

places an unreasonable burden on a
wholesome food product. As a consequence it
deprives McCray of his property without due
process of law.
The United States has no authority to impose
such a regulatory tax and is interfering with
the police powers of the states by doing so.
This arbitrary tax discriminates against
oleomargarine in favor of butter. The purpose
of the law is not to gain revenue for the federal
government but to destroy the oleomargarine
industry for the benefit of the butter industry.
This violates the fundamental principles of
justice and equity inherent in the Constitution.
For the defendant in error,

United States:
The tax on oleomargarine is an excise tax on a
product.
The Constitution places no restraints on the
government’s power to levy excise taxes
except geographical uniformity. This tax meets
that requirement and is therefore
constitutional.
Mr. Justice White Delivered the Opinion of the

Court.
Did Congress in passing the acts which are

assailed, exert a power not conferred by the
Constitution?
That the acts in question on their face impose

excise taxes which Congress had the power to levy
is so completely established as to require only
statement. . . .
It is, however, argued if a lawful power may be

exerted for an unlawful purpose, and thus by
abusing the power it may be made to accomplish a
result not intended by the Constitution, all
limitations of power must disappear, and the grave
function lodged in the judiciary, to confine all the
departments within the authority conferred by the
Constitution, will be of no avail. This, when
reduced to its last analysis, comes to this, that,
because a particular department of the
government may exert its lawful powers with the
object or motive of reaching an end not justified,
therefore it becomes the duty of the judiciary to
restrain the exercise of a lawful power wherever it
seems to the judicial mind that such lawful power
has been abused. But this reduces itself to the
contention that, under our constitutional system,
the abuse by one department of the government of
its lawful powers is to be corrected by the abuse
of its powers by another department.
The proposition, if sustained, would destroy all

distinction between the powers of the respective
departments of the government, would put an end
to that confidence and respect for each other
which it was the purpose of the Constitution to
uphold, and would thus be full of danger to the
permanence of our institutions. . . .
It is, of course, true, as suggested, that if there be

no authority in the judiciary to restrain a lawful
exercise of power by another department of the
government, where a wrong motive or purpose
has impelled to the exertion of the power, that
abuses of a power conferred may be temporarily
effectual. The remedy for this, however, lies, not in
the abuse by the judicial authority of its functions,
but in the people, upon whom, after all, under our
institutions, reliance must be placed for the
correction of abuses committed in the exercise of
a lawful power. . . .
The decisions of this court from the beginning

lend no support whatever to the assumption that
the judiciary may restrain the exercise of lawful
power on the assumption that a wrongful purpose
or motive has caused the power to be exerted. As
we have previously said, from the beginning no
case can be found announcing such a doctrine,
and on the contrary the doctrine of a number of
cases is inconsistent with its existence. As quite
recently pointed out by this court in Knowlton v.
Moore (1900), the often quoted statement of Chief
Justice Marshall in McCulloch v. Maryland, that
the power to tax is the power to destroy, affords
no support whatever to the proposition that where
there is a lawful power to impose a tax its
imposition may be treated as without the power
because of the destructive effect of the exertion of
the authority. . . .
It being thus demonstrated that the motive or

purpose of Congress in adopting the acts in
question may not be inquired into, we are brought
to consider the contentions relied upon to show
that the acts assailed were beyond the power of
Congress, putting entirely out of view all
considerations based upon purpose or motive.
1. Undoubtedly, in determining whether a

particular act is within a granted power, its scope
and effect are to be considered. Applying this rule
to the acts assailed, it is self-evident that on their
face they levy an excise tax. That being their
necessary scope and operation, it follows that the
acts are within the grant of power. The argument
to the contrary rests on the proposition that,
although the tax be within the power, as enforcing
it will destroy or restrict the manufacture of
artificially colored oleomargarine, therefore the
power to levy the tax did not obtain. This,
however, is but to say that the question of power
depends, not upon the authority conferred by the
Constitution but upon what may be the
consequence arising from the exercise of the
lawful authority.
Since, as pointed out in all the decisions referred
to, the taxing power conferred by the Constitution
knows no limits except those expressly stated in
that instrument, it must follow, if a tax be within
the lawful power, the exertion of that power may
not be judicially restrained because of the results
to arise from its exercise. . . .
2. The proposition that where a tax is imposed

which is within the grant of powers, and which
does not conflict with any express constitutional
limitation, the courts may hold the tax to be void
because it is deemed that the tax is too high, is
absolutely disposed of by the opinions in the cases
hitherto cited, and which expressly hold . . . that
“The judicial department cannot prescribe to the
legislative department limitations upon the
exercise of its acknowledged powers. The power
to tax may be exercised oppressively upon
persons; but the responsibility of the legislature is
not to the courts, but to the people by whom its
members are elected.”
3. Whilst undoubtedly both the Fifth and Tenth

Amendments qualify, in so far as they are
applicable, all the provisions of the Constitution,
nothing in those amendments operates to take
away the grant of power to tax conferred by the
Constitution upon Congress. The contention on
this subject rests upon the theory that the purpose
and motive of Congress in exercising its
undoubted powers may be inquired into by the
courts, and the proposition is therefore disposed
of by what has been said on that subject.
The right of Congress to tax within its delegated
power being unrestrained, except as limited by the
Constitution, it was within the authority conferred
on Congress to select the objects upon which an
excise should be laid. It therefore follows that, in
exerting its power, no want of due process of law
could possibly result, because that body chose to
impose an excise on artificially colored
oleomargarine and not upon natural butter
artificially colored. . . .
4. Lastly we come to consider the argument that,

even though as a general rule a tax of the nature
of the one in question would be within the power
of Congress, in this case the tax should be held
not to be within such power, because of its effect.
This is based on the contention that, as the tax is
so large as to destroy the business of
manufacturing oleomargarine artificially colored,
to look like butter, it thus deprives the
manufacturers of that article of their freedom to
engage in a lawful pursuit, and hence, irrespective
of the distribution of powers made by the
Constitution, the taxing laws are void, because
they violate those fundamental rights which it is
the duty of every free government to safeguard,
and which, therefore, should be held to be
embraced by implied though none the less
potential guaranties, or in any event to be within
the protection of the due process clause of the
Fifth Amendment.
Let us concede, for the sake of argument only, the

premise of fact upon which the proposition is
based. Moreover, concede for the sake of
argument only, that even although a particular
exertion of power by Congress was not restrained
by any express limitation of the Constitution, if by
the perverted exercise of such power so great an
abuse was manifested as to destroy fundamental
rights which no free government could
consistently violate, that it would be the duty of
the judiciary to hold such acts to be void upon the
assumption that the Constitution by necessary
implication forbade them.
Such concession, however, is not controlling in

this case. This follows when the nature of
oleomargarine, artificially colored to look like
butter, is recalled. As we have said, it has been
conclusively settled by this court that the
tendency of that article to deceive the public into
buying it for butter is such that the States may, in
the exertion of their police powers, without
violating the due process clause of the Fourteenth
Amendment, absolutely prohibit the manufacture
of the article. It hence results, that even though it
be true that the effect of the tax in question is to
repress the manufacture of artificially colored
oleomargarine, it cannot be said that such
repression destroys rights which no free
government could destroy, and, therefore, no
ground exists to sustain the proposition that the
judiciary may invoke an implied prohibition, upon
the theory that to do so is essential to save such
rights from destruction. And the same
considerations dispose of the contention based
upon the due process clause of the Fifth
Amendment. That provision, as we have previously
said, does not withdraw or expressly limit the
grant of power to tax conferred upon Congress by
the Constitution. From this it follows, as we have
also previously declared, that the judiciary is
without authority to avoid an act of Congress
exerting the taxing power, even in a case where to
the judicial mind it seems that Congress had in
putting such power in motion abused its lawful
authority by levying a tax which was unwise or
oppressive, or the result of the enforcement of
which might be to indirectly affect subjects not
within the powers delegated to Congress.
Let us concede that if a case was presented where

the abuse of the taxing power was so extreme as
to be beyond the principles which we have
previously stated, and where it was plain to the
judicial mind that the power had been called into
play not for revenue but solely for the purpose of
destroying rights which could not be rightfully
destroyed consistently with the principles of
freedom and justice upon which the Constitution
rests, that it would be the duty of the courts to say
that such an arbitrary act was not merely an
abuse of a delegated power, but was the exercise
of an authority not conferred. This concession,
however, like the one previously made, must be
without influence upon the decision of this cause
for the reasons previously stated; that is, that the
manufacture of artificially colored oleomargarine
may be prohibited by a free government without a
violation of fundamental rights.
Affirmed.
With decisions such as Veazie, McCray, and others,

Congress reasonably concluded that the power to tax
could be used as a regulatory weapon. The
legislators were encouraged by statements such as
Justice Edward Douglass White’s in McCray: “The
decisions of this court from the beginning lend no
support whatever to the assumption that the
judiciary may restrain the exercise of lawful power
on the assumption that a wrongful purpose or motive
has caused the power to be exerted.” The Court
seemed committed to a policy of approving
legislation that took the proper form of an excise tax
and met the geographical uniformity requirement
regardless of the congressional motives behind it. If
the judiciary was not inclined to probe the legislative
branch’s motives, Congress would have a free hand
in using taxation to regulate or even destroy certain
activities lawmakers considered detrimental to the
nation.
Rejection and Reestablishment

of Regulatory Taxation
Among Congress’s targets was child labor. As we
saw in our discussions of federalism and the
commerce clause, Congress first attempted to
regulate child labor in the 1916 Keating-Owen Act,
which prohibited the shipment in interstate and
foreign commerce of articles produced by child
labor. Just two years after that law was enacted, the
Supreme Court, in Hammer v. Dagenhart, struck it
down on the ground that Congress, under the guise
of interstate commerce regulation, was actually
controlling manufacturing and mining, considered at
that time to be intrastate activities falling under the
regulatory authority of the states.
After suffering this defeat at the hands of the Court,

Congress drafted a second statute to attack child
labor, this time using the power to tax. Could the
national legislature constitutionally use the excise
tax as a means of eliminating child labor? Would the
justices once again refuse to examine congressional
motives? The answer to these questions came in
Bailey v. Drexel Furniture Co. (1922). As you read
Chief Justice Taft’s opinion, note his distinction
between a tax and a penalty. Does he make a
compelling argument? And does it surprise you that
progressive members of the Court, such as Oliver
Wendell Holmes and Louis D. Brandeis, voted to
strike down the law?
Bailey v. Drexel Furniture Co. 259 U.S. 20 (1922)
court/259/20.html
Vote: 8 (Brandeis, Day, Holmes, McKenna,

McReynolds, Pitney, Taft, Van Devanter)
1 (Clarke)
Facts:
Congress passed the Child Labor Tax Law on
February 24, 1919. The statute imposed an excise
tax of 10 percent on the net profits of any
company hiring child labor. Under the law, child
labor was defined as the employment of children
under the age of sixteen in any mine or quarry or
under the age of fourteen in any mill, cannery,
workshop, factory, or manufacturing
establishment. The definition also included the use
of children between the ages of fourteen and
sixteen who worked more than eight hours a day
or more than six days a week, or who worked
between the hours of 7:00 p.m. and 6:00 a.m.
Drexel was a furniture manufacturing company in

North Carolina. On September 20, 1921, it
received from J. W. Bailey, the IRS collector for the
Western District of North Carolina, a notice that it
had been assessed $6,312.79 in excise taxes for
having employed a boy under the age of fourteen
during the 1919 tax year. The company paid the
tax under protest and sued for a refund. The lower
court ruled in favor of the company.
Arguments:
For the plaintiff in error, J. W. Bailey,
collector of internal revenue for the
Western District of North Carolina:
The challenged act is an excise tax that raises

revenue for the federal government. As long as
the tax is geographically uniform and is not
levied on exports, it is constitutional. The law
meets these requirements.
The Court should not restrain the lawful power
of Congress on the assumption that a wrongful
purpose or motive caused the power to be
exercised (McCray v. United States).
Federal laws should not be invalidated where
there is unquestioned power to act but there
exists an incidental effect on some right
reserved to the states.
Young boys working a loom in Macon, Georgia,

circa 1910. Conditions such as these were the
target of reform legislation passed by Congress
and declared unconstitutional by the Supreme
Court in Hammer v. Dagenhart (1918) and Bailey
v. Drexel Furniture Co. (1922).
National Archives Records Administration

Drexel Furniture Company:
This legislation regulates child labor, a subject
over which the federal government is without
authority (Hammer v. Dagenhart).
Congress has used the power to tax as a
pretext for regulating a subject reserved for
the states.
The law is much more a criminal statute that
imposes a penalty on those who violate it than
it is a revenue measure.

the Court.
The law is attacked on the ground that it is a

regulation of the employment of child labor in the
States—an exclusively state function under the
Federal Constitution and within the reservations
of the Tenth Amendment. It is defended on the
ground that it is a mere excise tax levied by the
Congress of the United States under its broad
power of taxation conferred by §8, Article I, of the
Federal Constitution. We must construe the law
and interpret the intent and meaning of Congress
from the language of the act. The words are to be
given their ordinary meaning unless the context
shows that they are differently used. Does this law
impose a tax with only that incidental restraint
and regulation which a tax must inevitably
involve? Or does it regulate by the use of the so-
called tax as a penalty? If a tax, it is clearly an
excise. If it were an excise on a commodity or
other thing of value we might not be permitted
under previous decisions of this court to infer
solely from its heavy burden that the act intends a
prohibition instead of a tax. But this act is more. It
provides a heavy exaction for a departure from a
detailed and specified course of conduct in
business. That course of business is that
employers shall employ in mines and quarries,
children of an age greater than sixteen years; in
mills and factories, children of an age greater than
fourteen years, and shall prevent children of less
than sixteen years in mills and factories from
working more than eight hours a day or six days in
the week. If an employer departs from this
prescribed course of business, he is to pay to the
Government one-tenth of his entire net income in
the business for a full year. The amount is not to
be proportioned in any degree to the extent or
frequency of the departures, but is to be paid by
the employer in full measure whether he employs
five hundred children for a year, or employs only
one for a day. Moreover, if he does not know the
child is within the named age limit, he is not to
pay; that is to say, it is only where he knowingly
departs from the prescribed course that payment
is to be exacted. Scienter is associated with
penalties, not with taxes. The employer’s factory is
to be subject to inspection at any time not only by
the taxing officers of the Treasury, the Department
normally charged with the collection of taxes, but
also by the Secretary of Labor and his
subordinates, whose normal function is the
advancement and protection of the welfare of the
workers. In the light of these features of the act, a
court must be blind not to see that the so-called
tax is imposed to stop the employment of children
within the age limits prescribed. Its prohibitory
and regulatory effect and purpose are palpable.
All others can see and understand this. How can
we properly shut our minds to it?
It is the high duty and function of this court in

cases regularly brought to its bar to decline to
recognize or enforce seeming laws of Congress,
dealing with subjects not entrusted to Congress
but left or committed by the supreme law of the
land to the control of the States. We cannot avoid
the duty, even though it require[s] us to refuse to
give effect to legislation designed to promote the
highest good. The good sought in unconstitutional
legislation is an insidious feature because it leads
citizens and legislators of good purpose to
promote it without thought of the serious breach it
will make in the ark of our covenant or the harm
which will come from breaking down recognized
standards. In the maintenance of local self-
government, on the one hand, and the national
power, on the other, our country has been able to
endure and prosper for near a century and a half.
Out of a proper respect for the acts of a co-

ordinate branch of the Government, this court has
gone far to sustain taxing acts as such, even
though there has been ground for suspecting from
the weight of the tax it was intended to destroy its
subject. But, in the act before us, the presumption
of validity cannot prevail, because the proof of the
contrary is found on the very face of its provisions.
Grant the validity of this law, and all that Congress
would need to do, hereafter, in seeking to take
over to its control any one of the great number of
subjects of public interest, jurisdiction of which
the States have never parted with, and which are
reserved to them by the Tenth Amendment, would
be to enact a detailed measure of complete
regulation of the subject and enforce it by a so-
called tax upon departures from it. To give such
magic to the word “tax” would be to break down
all constitutional limitation of the powers of
Congress and completely wipe out the sovereignty
of the States.
The difference between a tax and a penalty is

sometimes difficult to define and yet the
consequences of the distinction in the required
method of their collection often are important.
Where the sovereign enacting the law has power
to impose both tax and penalty, the difference
between revenue production and mere regulation
may be immaterial, but not so when one sovereign
can impose a tax only, and the power of regulation
rests in another. Taxes are occasionally imposed in
the discretion of the legislature on proper subjects
with the primary motive of obtaining revenue from
them and with the incidental motive of
discouraging them by making their continuance
onerous. They do not lose their character as taxes
because of the incidental motive. But there comes
a time in the extension of the penalizing features
of the so-called tax when it loses its character as
such and becomes a mere penalty with the
characteristics of regulation and punishment.
Such is the case in the law before us. Although
Congress does not invalidate the contract of
employment or expressly declare that the
employment within the mentioned ages is illegal,
it does exhibit its intent practically to achieve the
latter result by adopting the criteria of
wrongdoing and imposing its principal
consequence on those who transgress its
standard. The case before us cannot be
distinguished from that of Hammer v. Dagenhart.
Congress there enacted a law to prohibit
transportation in interstate commerce of goods
made at a factory in which there was employment
of children within the same ages and for the same
number of hours a day and days in a week as are
penalized by the act in this case. This court held
the law in that case to be void. It said:
“In our view the necessary effect of this act is,

by means of a prohibition against the
movement in interstate commerce of ordinary
commercial commodities, to regulate the
hours of labor of children in factories and
mines within the States, a purely state
authority.”
In the case at the bar, Congress in the name of a

tax which on the face of the act is a penalty seeks
to do the same thing, and the effort must be
equally futile.
The analogy of the Dagenhart Case is clear. The

congressional power over interstate commerce is,
within its proper scope, just as complete and
unlimited as the congressional power to tax, and
the legislative motive in its exercise is just as free
from judicial suspicion and inquiry. Yet when
Congress threatened to stop interstate commerce
in ordinary and necessary commodities,
unobjectionable as subjects of transportation, and
to deny the same to the people of a State in order
to coerce them into compliance with Congress’s
regulation of state concerns, the court said this
was not in fact regulation of interstate commerce,
but rather that of State concerns and was invalid.
So here the so-called tax is a penalty to coerce
people of a State to act as Congress wishes them
to act in respect of a matter completely the
business of the state government under the
Federal Constitution. . . .
. . . For the reasons given, we must hold the Child

Labor Tax Law invalid and the judgment of the
District Court is
Affirmed.
With the Court’s rejection of both of its attempts to

regulate child labor through the commerce and
taxation powers, Congress pursued yet another
alternative. In 1924, two years after Drexel,
Congress proposed a constitutional amendment that
gave the national government power to regulate and
prohibit child labor. Unlike most proposed
amendments, this one had no congressionally
determined deadline on the states for ratification.
Slightly more than half of the state legislatures
endorsed the amendment before support for it began
to decline. In the end, the amendment was
unnecessary. Many states responded to decisions
such as Hammer and Drexel by passing their own
child labor laws. In addition, the 1937 constitutional
revolution that redefined the concept of interstate
commerce, along with subsequent employment
regulation decisions such as United States v. Darby
(1941), gave the federal government ample authority
to control child labor.
The decision in Drexel was a reversal of the position

on excise taxes the Court had held since the early
1800s. It proved to be out of line with Supreme
Court rulings both before and after. The Court
repeatedly has faced the question of taxation and
regulation and generally has ruled in favor of the
federal power to tax; the Court has even
acknowledged that to some degree all taxes have
regulatory effects. In United States v. Doremus
(1919) and Nigro v. United States (1928), the Court
upheld federal excise taxes on narcotics, and in
United States v. Sanchez (1950), it upheld a tax on
marijuana. Similarly, an excise tax on objectionable
firearms was declared valid in Sonzinsky v. United
States (1937), even though the Court admitted that
the law had an unmistakable “legislative purpose to
regulate rather than to tax.” In United States v.
Kahriger (1953), the justices found no
constitutional defects with an excise levied on
professional gamblers. Such taxes expand federal
regulatory powers. If Congress has the power to
impose the tax, then the federal government also has
the power to enforce the tax laws, creating, to an
extent, “police powers” within the federal
government that originally resided with the states.
The authority to use the excise tax as a regulatory
power is not unlimited. Such taxes cannot be levied
or enforced in a manner that violates other
provisions of the Constitution. Kahriger provides an
illustration. The tax imposed required those engaged
in accepting bets to pay an annual excise of $50 and
to register with the collector of internal revenue.
Although it is constitutionally valid for Congress to
impose an occupational excise tax, the law cannot
compel a person to admit to criminal activity. To do
so would be a violation of the Fifth Amendment’s
self-incrimination clause. Joseph Kahriger raised
these objections in his appeal, but the majority
upheld the statute’s requirements that gamblers
register with the government. Fifteen years later,
however, the Court reexamined this position in
Marchetti v. United States (1968). Here the Court
held that no laws, including tax laws, can
constitutionally require a person to admit to criminal
activities. To the extent that the Kahriger decision
permitted such procedures, it was overruled.
Taxing and Spending for the

General Welfare
The Constitution authorizes Congress to tax and
spend for the general welfare. Whether the term
general welfare was intended to expand the powers
of Congress beyond those explicitly stated in the
Constitution is subject to debate. James Madison
argued that the Constitution’s use of the term was
only a reference to the other enumerated powers.
Because the federal government is one of limited
and specified powers, he asserted, the authority to
tax and spend must be confined to those spheres of
authority the Constitution explicitly granted.
Alexander Hamilton took the opposite position. He
interpreted the power to tax and spend for the
general welfare to be a separate power altogether.
For Hamilton, taxing and spending authority was
given in addition to the other granted powers, not
limited by them. The conflict between these two
opposing interpretations was the subject of legal
disputes throughout much of the nation’s history.
During the constitutional crisis over legislation
passed during implementation of the New Deal,
however, the final battle between the two was
waged.
A Restricted View of Taxing and

Spending
Many of the programs Franklin Roosevelt
recommended to reestablish the nation’s economic
strength involved regulatory activity far more
extensive than ever before proposed. Several
depended on the power of the federal government to
tax and spend for the general welfare. Opponents of
the New Deal claimed that these programs, while
ostensibly based on the taxing and spending
authority, in reality were regulations of matters the
Constitution reserved for the states.
The Roosevelt administration placed great
importance on stabilizing agricultural markets and
on creating conditions that would make farms
profitable. To accomplish these goals, Congress
passed the Agricultural Adjustment Act (AAA) of
1933, which was challenged in United States v.
Butler (1936). Although the issues were crucial both
to the economic welfare of the nation and to the
constitutional future of federalism, Justice Owen J.
Roberts, writing for the majority, presented an
uncomplicated formula for deciding the case: “Lay
the article of the Constitution which is invoked
beside the statute which is challenged and . . .
decide whether the latter squares with the former.”
Do you believe the process of judicial review is that
simple—especially when so much is riding on the
outcome of the Court’s deliberations?
United States v. Butler 297 U.S. 1 (1936)
court/297/1.html
Vote: 6 (Butler, Hughes, McReynolds, Roberts,

Sutherland, Van Devanter)
3 (Brandeis, Cardozo, Stone)
OPINION OF THE COURT: Roberts

DISSENTING OPINION: Stone
William M. Butler, receiver for Hoosac Mills,

objected to paying the federal tax on processing
cotton. His lawsuit successfully challenged the
constitutionality of the Agricultural Adjustment
Act of 1933.
©Bettmann/CORBIS
Facts:
During the Great Depression, agriculture was one
of the hardest-hit sectors of the economy. The
nation’s farmers were overproducing, which
caused prices for farm products to drop. In many
cases the cost of production was higher than the
income from crop sales, leaving farmers in
desperate straits. Most had their farms
mortgaged, and all owed taxes on their land. The
more the farmers fell behind economically, the
more they produced to improve their situation, but
this strategy made matters even worse. At that
time agriculture was responsible for a much larger
proportion of the nation’s economy than it is
today, and conditions in the farming sector had
dire effects on the entire country.
In response, Roosevelt proposed, and Congress

passed, the Agricultural Adjustment Act (AAA),
which combined the taxing and spending powers
to combat the crisis. The central purpose of the
plan was to reduce the amount of acreage being
farmed. To accomplish this goal, the federal
government would “rent” a percentage of the
nation’s farmland and leave this acreage
unplanted. In effect, the government would pay
the farmers not to farm. If the plan succeeded,
production would drop, prices would rise, and the
farmers would have sufficient income. Making
payments to the nation’s farmers would be costly,
and to fund these expenditures the AAA imposed
an excise tax on the processing of agricultural
products.
The program was a success until William M.

Butler challenged the constitutionality of the law.
Butler was the bankruptcy receiver for Hoosac
Mills Corporation, a cotton processor. When the
government imposed the processing tax on
Hoosac, Butler took legal action to avoid payment,
claiming that the AAA exceeded the taxing and
spending powers granted to the federal
government. The district court upheld the law, but
the court of appeals reversed. The United States
appealed to the Supreme Court.
A number of groups having a direct interest in the

outcome of the case filed amicus curiae briefs.
Supporting the validity of the act were groups of
farmers and other agricultural producers, such as
the American Farm Bureau Federation. Arguing to
strike down the AAA were agricultural processing
interests such as the National Association of
Cotton Manufacturers, National Biscuit Company,
P. Lorillard Co., and General Mills.
Arguments:
The taxes levied by the Agricultural Adjustment
Act are excises. They are geographically
uniform, meeting the only constitutional
requirement for such taxes.
The power to tax and spend should be
construed broadly to allow such actions for any
purposes conducive to the national welfare.
The question of what is best for the nation’s
welfare is a matter for legislative
determination.
The act is an exercise of the power to tax and
spend only. No attempt is made to exercise any
powers that are reserved for the states or the
people by the Tenth Amendment.
For the respondents, William M.

Butler et al., receivers of
Hoosac Mills Corporation:
The Agricultural Adjustment Act is an attempt
by Congress to regulate the local production of
agricultural commodities. The authority to
regulate agricultural production is reserved for
the states by the Tenth Amendment.
The tax is not for a public purpose because it
takes the processors’ money for the benefit of
the producers. This is confiscation of the
property of one class for the economic
advantage of another.
The general welfare clause should not be
interpreted to allow Congress the power to
regulate by taxation the conduct and activities
of citizens in spheres otherwise beyond
congressional control.
The act is not a temporary measure and
therefore cannot be defended as an
emergency action to cope with the current
economic crisis.
Mr. Justice Roberts Delivered the Opinion of

the Court.
The Government asserts that even if the

respondents may question the propriety of the
appropriation embodied in the statute their attack
must fail because Article I, §8 of the Constitution
authorizes the contemplated expenditure of the
funds raised by the tax. This contention presents
the great and the controlling question in the case.
We approach its decision with a sense of our grave
responsibility to render judgment in accordance
with the principles established for the governance
of all three branches of the Government.
There should be no misunderstanding as to the
function of this court in such a case. It is
sometimes said that the court assumes a power to
overrule or control the action of the people’s
representatives. This is a misconception. The
Constitution is the supreme law of the land
ordained and established by the people. All
legislation must conform to the principles it lays
down. When an act of Congress is appropriately
challenged in the courts as not conforming to the
constitutional mandate the judicial branch of the
Government has only one duty,—to lay the article
of the Constitution which is invoked beside the
statute which is challenged and to decide whether
the latter squares with the former. All the court
does, or can do, is to announce its considered
judgment upon the question. The only power it
has, if such it may be called, is the power of
judgment. This court neither approves nor
condemns any legislative policy. Its delicate and
difficult office is to ascertain and declare whether
the legislation is in accordance with, or in
contravention of, the provisions of the
Constitution; and, having done that, its duty ends.
The question is not what power the Federal

Government ought to have but what powers in fact
have been given by the people. It hardly seems
necessary to reiterate that ours is a dual form of
government; that in every state there are two
governments,—the state and the United States.
Each State has all governmental powers save such
as the people, by their Constitution, have
conferred upon the United States, denied to the
States, or reserved to themselves. The federal
union is a government of delegated powers. It has
only such as are expressly conferred upon it and
such as are reasonably to be implied from those
granted. In this respect we differ radically from
nations where all legislative power, without
restriction or limitation, is vested in a parliament
or other legislative body subject to no restrictions
except the discretion of its members.
Article I, §8, of the Constitution vests sundry

powers in the Congress. But two of its clauses
have any bearing upon the validity of the statute
under review.
The third clause endows the Congress with power

“to regulate Commerce . . . among the several
States.” Despite a reference in its first section to a
burden upon, and an obstruction of the normal
currents of commerce, the act under review does
not purport to regulate transactions in interstate
or foreign commerce. Its stated purpose is the
control of agricultural production, a purely local
activity, in an effort to raise the prices paid the
farmer. Indeed, the Government does not attempt
to uphold the validity of the act on the basis of the
commerce clause, which, for the purpose of the
present case, may be put aside as irrelevant.
The clause thought to authorize the legislation,—

the first,—confers upon the Congress power “to
lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common
Defence and general Welfare of the United States.
. . .” It is not contended that this provision grants
power to regulate agricultural production upon
the theory that such legislation would promote the
general welfare. The Government concedes that
the phrase “to provide for the general welfare”
qualifies the power “to lay and collect taxes.” The
view that the clause grants power to provide for
the general welfare, independently of the taxing
power, has never been authoritatively accepted. . .
. The true construction undoubtedly is that the
only thing granted is the power to tax for the
purpose of providing funds for payment of the
nation’s debts and making provision for the
general welfare.
Nevertheless the Government asserts that warrant

is found in this clause for the adoption of the
Agricultural Adjustment Act. The argument is that
Congress may appropriate and authorize the
spending of moneys for the “general welfare”; that
the phrase should be liberally construed to cover
anything conducive to national welfare; that
decision as to what will promote such welfare
rests with Congress alone, and the courts may not
review its determination; and finally that the
appropriation under attack was in fact for the
general welfare of the United States.
The Congress is expressly empowered to lay taxes

to provide for the general welfare. Funds in the
Treasury as a result of taxation may be expended
only through appropriation. (Art. I, §9, cl. 7.) They
can never accomplish the objects for which they
were collected unless the power to appropriate is
as broad as the power to tax. The necessary
implication from the terms of the grant is that the
public funds may be appropriated “to provide for
the general welfare of the United States.” These
words cannot be meaningless, else they would not
have been used. The conclusion must be that they
were intended to limit and define the granted
power to raise and to spend money. How shall they
be construed to effectuate the intent of the
instrument?
Since the foundation of the Nation, sharp

differences of opinion have persisted as to the true
interpretation of the phrase. Madison asserted it
amounted to no more than a reference to the
other powers enumerated in the subsequent
clauses of the same section; that, as the United
States is a government of limited and enumerated
powers, the grant of power to tax and spend for
the general national welfare must be confined to
the enumerated legislative fields committed to the
Congress. In this view the phrase is mere
tautology, for taxation and appropriation are or
may be necessary incidents of the exercise of any
of the enumerated legislative powers. Hamilton,
on the other hand, maintained the clause confers a
power separate and distinct from those later
enumerated, is not restricted in meaning by the
grant of them, and Congress consequently has a
substantive power to tax and to appropriate,
limited only by the requirement that it shall be
exercised to provide for the general welfare of the
United States. Each contention has had the
support of those whose views are entitled to
weight. This court has noticed the question, but
has never found it necessary to decide which is
the true construction. Mr. Justice Story, in his
Commentaries, espouses the Hamiltonian position.
We shall not review the writings of public men and
commentators or discuss the legislative practice.
Study of all these leads us to conclude that the
reading advocated by Mr. Justice Story is the
correct one. While, therefore, the power to tax is
not unlimited, its confines are set in the clause
which confers it, and not in those of §8 which
bestow and define the legislative powers of the
Congress. It results that the power of Congress to
authorize expenditure of public moneys for public
purposes is not limited by the direct grants of
legislative power found in the Constitution. . . .
We are not now required to ascertain the scope of

the phrase “general welfare of the United States”
or to determine whether an appropriation in aid of
agriculture falls within it. Wholly apart from that
question, another principle embedded in our
Constitution prohibits the enforcement of the
Agricultural Adjustment Act. The act invades the
reserved rights of the states. It is a statutory plan
to regulate and control agricultural production, a
matter beyond the powers delegated to the federal
government. The tax, the appropriation of the
funds raised, and the direction for their
disbursement, are but parts of the plan. They are
but means to an unconstitutional end.
From the accepted doctrine that the United States

is a government of delegated powers, it follows
that those not expressly granted, or reasonably to
be implied from such as are conferred, are
reserved to the states or to the people. To forestall
any suggestion to the contrary, the Tenth
Amendment was adopted. The same proposition,
otherwise stated, is that powers not granted are
prohibited. None to regulate agricultural
production is given, and therefore legislation by
Congress for that purpose is forbidden.
It is an established principle that the attainment of
a prohibited end may not be accomplished under
the pretext of the exertion of powers which are
granted. . . .
The power of taxation, which is expressly granted,

may, of course, be adopted as a means to carry
into operation another power also expressly
granted. But resort to the taxing power to
effectuate an end which is not legitimate, not
within the scope of the Constitution, is obviously
inadmissible. . . .
. . . If the taxing power may not be used as the

instrument to enforce a regulation of matters of
state concern with respect to which the Congress
has no authority to interfere, may it, as in the
present case, be employed to raise the money
necessary to purchase a compliance which the
Congress is powerless to command? The
Government asserts that whatever might be said
against the validity of the plan if compulsory, it is
constitutionally sound because the end is
accomplished by voluntary cooperation. There are
two sufficient answers to the contention. The
regulation is not in fact voluntary. The farmer, of
course, may refuse to comply, but the price of
such refusal is the loss of benefits. The amount
offered is intended to be sufficient to exert
pressure on him to agree to the proposed
regulation. The power to confer or withhold
unlimited benefits is the power to coerce or
destroy. If the cotton grower elects not to accept
the benefits, he will receive less for his crops;
those who receive payments will be able to
undersell him. The result will be financial ruin.
The coercive purpose and intent of the statute is
not obscured by the fact that it has not been
perfectly successful. It is pointed out that, because
there still remained a minority whom the rental
and benefit payments were insufficient to induce
to surrender their independence of action, the
Congress has gone further and, in the Bankhead
Cotton Act, used the taxing power in a more
directly minatory fashion to compel submission.
This progression only serves more fully to expose
the coercive purpose of the so-called tax imposed
by the present act. It is clear that the Department
of Agriculture has properly described the plan as
one to keep a non-cooperating minority in line.
This is coercion by economic pressure. The
asserted power of choice is illusory. . . .
But if the plan were one for purely voluntary

cooperation it would stand no better so far as
federal power is concerned. At best it is a scheme
for purchasing with federal funds submission to
federal regulation of a subject reserved to the
states. . . .
Congress has no power to enforce its commands

on the farmer to the ends sought by the
Agricultural Adjustment Act. It must follow that it
may not indirectly accomplish those ends by
taxing and spending to purchase compliance. The
Constitution and the entire plan of our
government negative any such use of the power to
tax and to spend as the act undertakes to
authorize. It does not help to declare that local
conditions throughout the nation have created a
situation of national concern; for this is but to say
that whenever there is a widespread similarity of
local conditions, Congress may ignore
constitutional limitations upon its own powers and
usurp those reserved to the states. If, in lieu of
compulsory regulation of subjects within the
states’ reserved jurisdiction, which is prohibited,
the Congress could invoke the taxing and
spending power as a means to accomplish the
same end, clause 1 of §8 of Article I would become
the instrument for total subversion of the
governmental powers reserved to the individual
states.
If the act before us is a proper exercise of the

federal taxing power, evidently the regulation of
all industry throughout the United States may be
accomplished by similar exercises of the same
power. It would be possible to exact money from
one branch of an industry and pay it to another
branch in every field of activity which lies within
the province of the states. The mere threat of such
a procedure might well induce the surrender of
rights and the compliance with federal regulation
as the price of continuance in business. . . .
The judgment is
Affirmed.
MR. JUSTICE STONE,

dissenting.
I think the judgment should be reversed.
The present stress of widely held and strongly

expressed differences of opinion of the wisdom of
the Agricultural Adjustment Act makes it
important, in the interest of clear thinking and
sound result, to emphasize at the outset certain
propositions which should have controlling
influence in determining the validity of the Act.
They are:
1. The power of the courts to declare a statute

unconstitutional is subject to two guiding
principles of decision which ought never to be
absent from judicial consciousness. One is that
courts are concerned only with the power to enact
statutes, not with their wisdom. The other is that
while unconstitutional exercise of power by the
legislative and executive branches of the
government is subject to judicial restraint, the
only check upon our own exercise of power is our
own sense of self-restraint. For the removal of
unwise laws from the statute books appeal lies not
to the courts but to the ballot and to the processes
of democratic government.
2. The constitutional power of Congress to levy

an excise tax upon the processing of agricultural
products is not questioned. The present levy is
held invalid, not for any want of power in
Congress to lay such a tax to defray public
expenditures, including those for the general
welfare, but because the use to which its proceeds
are put is disapproved.
3. As the present depressed state of agriculture

is nationwide in its extent and effects, there is no
basis for saying that the expenditure of public
money in aid of farmers is not within the
specifically granted power of Congress to levy
taxes to “provide for the . . . general welfare.” The
opinion of the Court does not declare otherwise.
4. No question of a variable tax fixed from time

to time by fiat of the Secretary of Agriculture, or
of unauthorized delegation of legislative power, is
now presented. The schedule of rates imposed by
the Secretary in accordance with the original
command of Congress has since been specifically
adopted and confirmed by Act of Congress, which
has declared that it shall be the lawful tax. That is
the tax which the government now seeks to
collect. Any defects there may have been in the
manner of laying the tax by the Secretary have
now been removed by the exercise of the power of
Congress to pass a curative statute validating an
intended, though defective, tax. The Agricultural
Adjustment Act as thus amended declares that
none of its provisions shall fail because others are
pronounced invalid.
It is with these preliminary and hardly

controverted matters in mind that we should
direct our attention to the pivot on which the
decision of the Court is made to turn. It is that a
levy unquestionably within the taxing power of
Congress may be treated as invalid because it is a
step in a plan to regulate agricultural production
and is thus a forbidden infringement of state
power. The levy is not any less an exercise of
taxing power because it is intended to defray an
expenditure for the general welfare rather than
for some other support of government. Nor is the
levy and collection of the tax pointed to as
effecting the regulation. While all federal taxes
inevitably have some influence on the internal
economy of the states, it is not contended that the
levy of a processing tax upon manufacturers using
agricultural products as raw material has any
perceptible regulatory effect upon either their
production or manufacture. . . . Here regulation, if
any there be, is accomplished not by the tax but
by the method by which its proceeds are
expended, and would equally be accomplished by
any like use of public funds, regardless of their
source.
. . . [T]he power to tax and spend includes the

power to relieve a nationwide economic
maladjustment by conditional gifts of money.
Butler had a mixed outcome. The Court concluded

that the federal government had broad powers to tax
and spend for the general welfare. The justices
decided, consistent with Alexander Hamilton’s
position, that Congress’s fiscal authority was not
limited to those subjects specifically enumerated in
Article I. This philosophy did not, however, mean
that congressional powers had no limits. The
majority in Butler concluded that the law was
unconstitutional because what it imposed was not
truly a tax. Instead, the government was taking
money from one group (the processors) to give to
another (the farmers), and it was doing this to
regulate farm production, a matter of intrastate
commerce reserved for state regulation.
Expanding the Powers to Tax
and Spend
The impact of the Butler case was short-lived.
Following the Court’s dramatic change in position
after Roosevelt’s threat to add new members, the
justices ruled that agriculture could be regulated
under the commerce power.14 As for the power to
tax and spend for the general welfare, the position
taken in Butler was reevaluated the very next year in
Steward Machine Co. v. Davis (1937), a challenge to
the constitutionality of the newly formed Social
Security system. The Social Security Act of 1935
shared several characteristics with the AAA the
Court had condemned in Butler: both used the taxing
and spending powers to combat the effects of the
Depression, both took money from one group of
people to give to another, and both regulated areas
previously thought to be reserved to the states. But
in Steward Machine the justices upheld the validity
of the act. Note that in this case Chief Justice
Hughes and Justice Roberts desert the Butler
majority and join with the liberal wing of the Court
to forge new constitutional interpretations.
14 See Mulford v. Smith (1939) and Wickard v.

Filburn (1942).
Steward Machine Co. v. Davis 301 U.S. 548 (1937)

court/301/548.html

Stone)

Devanter)
OPINION OF THE COURT: Cardozo

DISSENTING OPINIONS: Butler,
McReynolds, Sutherland
Facts:
On August 14, 1935, Congress passed the Social
Security Act, a comprehensive law designed to
provide economic security to groups of individuals
who were particularly in need. Its three most
important programs were the creation of an old-
age and survivors’ benefits program; the
implementation of benefits for dependent children,
the handicapped, and the sight-impaired; and the
development of a cooperative federal–state
unemployment compensation system. The
unemployment provisions were the focus of the
constitutional challenge in this case.
The act, as originally passed, imposed an excise

tax on employers who hired more than eight
workers. The tax was based on the total amount of
wages paid. Employers could receive a tax credit,
not to exceed 90 percent of their unemployment
tax obligations, for contributions made to an
approved state unemployment compensation
program.
The state programs had to meet federal
specifications. The money that employers
contributed to these state funds was deposited
with the secretary of the U.S. Treasury. The
secretary would pay funds back to the states for
their unemployment compensation programs.
Congress also authorized additional federal funds
to be used to assist the states in administering
their compensation systems.
Steward Machine Company, an Alabama

corporation, paid the taxes due under the program
and then sued the collector of internal revenue for
a refund, claiming that the Social Security Act
violated the Constitution on a number of grounds.
The amount of the contested refund was $46.14.
The district court and the court of appeals upheld
the validity of the act.
Arguments:
For the petitioner, Charles C. Steward
Machine Co.:
Congress lacks the constitutional power to
establish a system of contributions and
benefits for the purpose of regulating
unemployment.
The law coerces the states to create
unemployment compensation programs. If
states do not comply, their citizens are
penalized by being required to supply millions
of dollars in tax payments to the federal
government to be used for the administration
of unemployment programs in the states that
do participate.
The use of the taxing power is a mere pretext
to allow Congress to regulate employer–
employee relationships, a regulatory area
reserved for the states.
The law exempts certain employers, such as
those who employ fewer than eight workers,
household domestics, or agricultural workers,
which makes the law arbitrary and
unconstitutional under the due process clause
of the Fifth Amendment.
For the respondent, Harwell G.

Davis, collector of internal
revenue for the district of
Alabama:
This tax is a valid excise that meets the
constitutional requirement of geographical
uniformity. The taxing and spending are being
used for the general welfare.
The tax cannot be considered a penalty. The
tax payer pays the same amount whether the
state participates in the program or not.
Congress is not attempting to regulate
employer–employee relationships.
The law does not coerce the states to
participate. Rather, it encourages state–federal
cooperation. States remain free not to
participate.
Mr. Justice Cardozo Delivered the Opinion of
the Court.
The assault on the statute proceeds on an

extended front. Its assailants take the ground that
the tax is not an excise; that it is not uniform
throughout the United States as excises are
required to be; that its exceptions are so many
and arbitrary as to violate the Fifth Amendment;
that its purpose was not revenue, but an unlawful
invasion of the reserved powers of the states; and
that the states in submitting to it have yielded to
coercion and have abandoned governmental
functions which they are not permitted to
surrender.
The objections will be considered seriatim with

such further explanation as may be necessary to
make their meaning clear.
First. The tax, which is described in the statute as

an excise, is laid with uniformity throughout the
United States as a duty, an impost or an excise
upon the relation of employment. . . .
The subject matter of taxation open to the power

of the Congress is as comprehensive as that open
to the power of the states, though the method of
apportionment may at times be different. . . . The
statute books of the states are strewn with
illustrations of taxes laid on occupations pursued
of common right. We find no basis for a holding
that the power in that regard which belongs by
accepted practice to the legislatures of the states,
has been denied by the Constitution to the
Congress of the nation.
The tax being an excise, its imposition must

conform to the canon of uniformity. There has
been no departure from this requirement.
According to the settled doctrine the uniformity
exacted is geographical, not intrinsic.
Second. The excise is not invalid under the

provisions of the Fifth Amendment by force of its
exemptions.
The statute does not apply, as we have seen, to

employers of less than eight. It does not apply to
agricultural labor, or domestic service in a private
home or to some other classes of less importance.
Petitioner contends that the effect of these
restrictions is an arbitrary discrimination vitiating
the tax. . . .
The classifications and exemptions directed by the

statute now in controversy have support in
considerations of policy and practical convenience
that cannot be condemned as arbitrary. . . . The
act of Congress is therefore valid, so far at least as
its system of exemptions is concerned, and this
though we assume that discrimination, if gross
enough, is equivalent to confiscation and subject
under the Fifth Amendment to challenge and
annulment.
Third. The excise is not void as involving the

coercion of the States in contravention of the
Tenth Amendment or of restrictions implicit in our
federal form of government.
The proceeds of the excise when collected are
paid into the Treasury at Washington, and
thereafter are subject to appropriation like public
moneys generally. No presumption can be
indulged that they will be misapplied or wasted.
Even if they were collected in the hope or
expectation that some other and collateral good
would be furthered as an incident, that without
more would not make the act invalid. This indeed
is hardly questioned. The case for the petitioner is
built on the contention that here an ulterior aim is
wrought into the very structure of the act, and
what is even more important that the aim is not
only ulterior, but essentially unlawful. In
particular, the 90 per cent credit is relied upon as
supporting that conclusion. But before the statute
succumbs to an assault upon these lines, two
propositions must be made out by the assailant.
There must be a showing in the first place that
separated from the credit the revenue provisions
are incapable of standing by themselves. There
must be a showing in the second place that the tax
and the credit in combination are weapons of
coercion, destroying or impairing the autonomy of
the states. The truth of each proposition being
essential to the success of the assault, we pass for
convenience to a consideration of the second,
without pausing to inquire whether there has been
a demonstration of the first.
To draw the line intelligently between duress and

inducement there is need to remind ourselves of
facts as to the problem of unemployment that are
now matters of common knowledge. The relevant
statistics are gathered in the brief of counsel for
the Government. Of the many available figures a
few only will be mentioned. During the years 1929
to 1936, when the country was passing through a
cyclical depression, the number of the
unemployed mounted to unprecedented heights.
Often the average was more than 10 million; at
times a peak was attained of 16 million or more.
Disaster to the breadwinner meant disaster to
dependents. Accordingly the roll of the
unemployed, itself formidable enough, was only a
partial roll of the destitute or needy. The fact
developed quickly that the states were unable to
give the requisite relief. The problem had become
national in area and dimensions. There was need
of help from the nation if the people were not to
starve. It is too late today for the argument to be
heard with tolerance that in a crisis so extreme
the use of the moneys of the nation to relieve the
unemployed and their dependents is a use for any
purpose narrower than the promotion of the
general welfare. . . .
In the presence of this urgent need for some

remedial expedient, the question is to be
answered whether the expedient adopted has
overleapt the bounds of power. The assailants of
the statute say that its dominant end and aim is to
drive the state legislatures under the whip of
economic pressure into the enactment of
unemployment compensation laws at the bidding
of the central government. Supporters of the
statute say that its operation is not constraint, but
the creation of a larger freedom, the states and
the nation joining in a co-operative endeavor to
avert a common evil. . . .
The Social Security Act is an attempt to find a
method by which all these public agencies may
work together to a common end. Every dollar of
the new taxes will continue in all likelihood to be
used and needed by the nation as long as states
are unwilling, whether through timidity or for
other motives, to do what can be done at home. At
least the inference is permissible that Congress so
believed, though retaining undiminished freedom
to spend the money as it pleased. On the other
hand, fulfillment of the home duty will be
lightened and encouraged by crediting the
taxpayer upon his account with the Treasury of
the nation to the extent that his contributions
under the laws of the locality have simplified or
diminished the problem of relief and the probable
demand upon the resources of the fisc [the public
treasury]. Duplicated taxes, or burdens that
approach them, are recognized hardships that
government, state or national, may properly avoid.
If Congress believed that the general welfare
would better be promoted by relief through local
units than by the system then in vogue, the
cooperating localities ought not in all fairness to
pay a second time.
Who then is coerced through the operation of this

statute? Not the taxpayer. He pays in fulfillment of
the mandate of the local legislature. Not the state.
Even now she does not offer a suggestion that in
passing the unemployment law she was affected
by duress. For all that appears she is satisfied with
her choice, and would be sorely disappointed if it
were now to be annulled. The difficulty with the
petitioner’s contention is that it confuses motive
with coercion. “Every tax is in some measure
regulatory. To some extent it interposes an
economic impediment to the activity taxed as
compared with others not taxed.” (Sonzinsky v.
United States, 1937.) In like manner every rebate
from a tax when conditioned upon conduct is in
some measure a temptation. But to hold that
motive or temptation is equivalent to coercion is
to plunge the law in endless difficulties. The
outcome of such a doctrine is the acceptance of a
philosophical determinism by which choice
becomes impossible. Till now the law has been
guided by a robust common sense which assumes
the freedom of the will as a working hypothesis in
the solution of its problems. . . .
United States v. Butler is cited by petitioner as a

decision to the contrary. There a tax was imposed
on processors of farm products, the proceeds to be
paid to farmers who would reduce their acreage
and crops under agreements with the Secretary of
Agriculture, the plan of the act being to increase
the prices of certain farm products by decreasing
the quantities produced. The court held (1) that
the so-called tax was not a true one, the proceeds
being earmarked for the benefit of farmers
complying with the prescribed conditions, (2) that
there was an attempt to regulate production
without the consent of the state in which
production was affected, and (3) that the
payments to farmers were coupled with coercive
contracts, unlawful in their aim and oppressive in
their consequences. The decision was by a divided
court, a minority taking the view that the
objections were untenable. None of them is
applicable to the situation here developed.
1. The proceeds of the tax in controversy are not
earmarked for a special group.
2. The unemployment compensation law which is
a condition of the credit has had the approval
of the state and could not be a law without it.
3. The condition is not linked to an irrevocable
agreement, for the state at its pleasure may
repeal its unemployment law, terminate the
credit, and place itself where it was before the
credit was accepted.
4. The condition is not directed to the attainment
of an unlawful end, but to an end, the relief of
unemployment, for which nation and state may
lawfully cooperate.
Fourth. The statute does not call for a surrender

by the states of powers essential to their quasi-
sovereign existence. . . .
The judgment is
Affirmed.
Separate opinion of MR.

JUSTICE MCREYNOLDS.
That portion of the Social Security legislation here
under consideration, I think, exceeds the power
granted to Congress. It unduly interferes with the
orderly government of the state by her own people
and otherwise offends the Federal Constitution.
In Texas v. White (1869), a cause of momentous

importance, this Court, through Chief Justice
Chase, declared—“But the perpetuity and
indissolubility of the Union, by no means implies
the loss of distinct and individual existence, or of
the right of self-government by the States. . . .”
The doctrine thus announced and often repeated, I

had supposed was firmly established. Apparently
the states remained really free to exercise
governmental powers, not delegated or
prohibited, without interference by the federal
government through threats of punitive measures
or offers of seductive favors. Unfortunately, the
decision just announced opens the way for
practical annihilation of this theory; and no cloud
of words or ostentatious parade of irrelevant
statistics should be permitted to obscure that fact.
Separate opinion of MR.

JUSTICE SUTHERLAND.
With most of what is said in the opinion just
handed down, I concur. . . .
But the question with which I have difficulty is

whether the administrative provisions of the act
invade the governmental administrative powers of
the several states reserved by the Tenth
Amendment. . . .
The precise question, therefore, which we are

required to answer by an application of these
principles is whether the congressional act
contemplates a surrender by the state to the
federal government, in whole or in part, of any
state governmental power to administer its own
unemployment law or the state pay roll-tax funds
which it has collected for the purposes of that law.
An affirmative answer to this question, I think,
must be made. . . .
If we are to survive as the United States, the

balance between the powers of the nation and
those of the states must be maintained. There is
grave danger in permitting it to dip in either
direction, danger—if there were no other—in the
precedent thereby set for further departures from
the equipoise. The threat implicit in the present
encroachment upon the administrative functions
of the states is that greater encroachments, and
encroachments upon other functions, will follow.
For the foregoing reasons, I think the judgment

below should be reversed.
MR. JUSTICE VAN DEVANTER joins in this

opinion.
MR. JUSTICE BUTLER,

dissenting.
I think that the objections to the challenged
enactment expressed in the separate opinions of
MR. JUSTICE MCREYNOLDS and MR. JUSTICE
SUTHERLAND are well taken. I am also of opinion
that, in principle and as applied to bring about and
to gain control over state unemployment
compensation, the statutory scheme is repugnant
to the Tenth Amendment. . . . The Constitution
grants to the United States no power to pay
unemployed persons or to require the states to
enact laws or to raise or disburse money for that
purpose. The provisions in question, if not
amounting to coercion in a legal sense, are
manifestly designed and intended directly to affect
state action in the respects specified. And, if valid
as so employed, this “tax and credit” device may
be made effective to enable federal authorities to
induce, if not indeed to compel, state enactments
for any purpose within the realm of state power
and generally to control state administration of
state laws. . . .
The terms of the measure make it clear that the

tax and credit device was intended to enable
federal officers virtually to control the exertion of
powers of the states in a field in which they alone
have jurisdiction and from which the United
States is by the Constitution excluded.
I am of opinion that the judgment of the Circuit

Court of Appeals should be reversed.
In a second case decided the same day, the Court

upheld the old-age benefits provisions of the Social
Security Act.15 From that point on, the Social
Security program became a permanent fixture in the
lives of American workers. The Social Security cases
also firmly established that the taxing and spending
powers are to be broadly construed. If Congress
decides that the general welfare of the United States
demands a program requiring the use of these fiscal
powers, the Supreme Court likely will find it
constitutionally valid unless parts of the law violate
specific provisions of the Constitution. Since these
1937 decisions, Congress has used the spending
authority to expand greatly the role of the federal
government.
15 Helvering v. Davis (1937).
Federal–State Fiscal Tensions

Because the justices now tend to defer to Congress
on such matters, serious challenges to federal
spending programs are unusual, although battles
over federal and state authority with respect to
spending programs do occasionally flare up. An
important example is provided by South Dakota v.
Dole (1987), which involved a conflict over federal
spending power and the state’s authority to regulate
highway safety and alcoholic beverages. The use of
federal funds to coerce the states into taking
particular policy positions was criticized in much the
same manner as arguments in Steward Machine
attacked the establishment of state unemployment
compensation programs. It is interesting to note that
Chief Justice William H. Rehnquist, who was
considered a strong defender of states’ rights, wrote
the majority opinion upholding the exercise of
federal authority over the states. Justice Brennan
cast a dissenting vote, another surprise because
Brennan usually could be counted on to support
federal power. Not surprising was Justice O’Connor’s
stinging dissent on behalf of state interests.
South Dakota v. Dole 483 U.S. 203 (1987)

court/483/203.html

Vote: 7 (Blackmun, Marshall, Powell, Rehnquist,

Scalia, Stevens, White)
2 (Brennan, O’Connor)

DISSENTING OPINIONS: Brennan,
O’Connor
Facts:
In 1984 Congress passed a statute, 23 U.S.C. 158,
directing the secretary of transportation to
withhold a portion of federal highway funds from
any state that did not establish a minimum age of
twenty-one years for the legal consumption of
alcoholic beverages. Many states at that time had
lower minimum drinking ages. The purpose of the
law was to decrease the number of serious
automobile accidents among young people, a
group that statistics showed had a high
percentage of accidents. The legislators correctly
believed that withholding federal dollars would be
an effective way of encouraging the states to
comply with the federal program.
South Dakota, which allowed the purchase of beer

containing 3.2 percent alcohol by persons
nineteen years or older, objected to the statute,
arguing that Congress was infringing on the rights
of the states. The Twenty-first Amendment
repealed Prohibition in 1933 and gave the states
full authority to regulate alcoholic beverages.
South Dakota, therefore, claimed that Congress
had no authority to set a minimum drinking age.
According to the state, the federal government
was using its considerable spending power to
coerce the states into enacting laws that were
otherwise outside congressional authority.
The state sued Secretary of Transportation

Elizabeth Dole, asking the courts to declare the
law unconstitutional. Both the district court and
the court of appeals ruled against the state and
upheld the law.
Arguments:
For the petitioner, state of South
Dakota:
From their inception the states had the
authority under their police powers to control
the distribution of alcohol within their borders.
The Twenty-first Amendment, repealing the
Eighteenth Amendment, gave the states
additional authority to regulate alcohol.
The states are not merely subdivisions or
departments of the federal government;
rather, they are sovereign within all areas not
granted to the national government.
The right of the states has particular force
when the Constitution has explicitly conferred
an authority on them, as the Twenty-first
Amendment has done.
Federal regulation of the minimum drinking
age invades the reserved powers of the states
and violates both the Twenty-first Amendment
and the Tenth Amendment.
For the respondent, Elizabeth

H. Dole, secretary of
transportation:
Congress passed section 158 in response to
alcohol-related accidents that occur when
young people living in states with a minimum
drinking age of twenty-one travel on interstate
highways to obtain alcohol in states with lower
drinking ages.
The federal law does not set a minimum
drinking age. The state retains this authority.
Congress has only provided a financial
incentive for states to set a uniform drinking
age at twenty-one.
It is within the authority of Congress to place
conditions on the awarding of federal funds.
The reduction in federal funds for states that
do not set their drinking age at twenty-one is
modest and well under the level that would be
considered coercive.

of the Court.
The Constitution empowers Congress to “lay and

collect Taxes, Duties, Imposts, and Excises, to pay
the Debts and provide for the common Defence
and general Welfare of the United States.” Art. I,
§8, cl. 1. Incident to this power, Congress may
attach conditions on the receipt of federal funds,
and has repeatedly employed the power “to
further broad policy objectives by conditioning
receipt of federal moneys upon compliance by the
recipient with federal statutory and administrative
directives.” The breadth of this power was made
clear in United States v. Butler (1936), where the
Court, resolving a longstanding debate over the
scope of the Spending Clause, determined that
“the power of Congress to authorize expenditure
of public moneys for public purposes is not limited
by the direct grants of legislative power found in
the Constitution.” Thus, objectives not thought to
be within Article I’s “enumerated legislative
fields” may nevertheless be attained through the
use of the spending power and the conditional
grant of federal funds.
The spending power is of course not unlimited, but

is instead subject to several general restrictions
articulated in our cases. The first of these
limitations is derived from the language of the
Constitution itself: the exercise of the spending
power must be in pursuit of “the general welfare.”
In considering whether a particular expenditure is
intended to serve general public purposes, courts
should defer substantially to the judgment of
Congress. Second, we have required that if
Congress desires to condition the States’ receipt
of federal funds, it “must do so unambiguously . . .
, enabl[ing] the States to exercise their choice
knowingly, cognizant of the consequences of their
participation.” Third, our cases have suggested
(without significant elaboration) that conditions on
federal grants might be illegitimate if they are
unrelated “to the federal interest in particular
national projects or programs.” Finally, we have
noted that other constitutional provisions may
provide an independent bar to the conditional
grant of federal funds.
South Dakota does not seriously claim that §158 is

inconsistent with any of the first three restrictions
mentioned above. We can readily conclude that
the provision is designed to serve the general
welfare, especially in light of the fact that “the
concept of welfare or the opposite is shaped by
Congress. . . .” Congress found that the differing
drinking ages in the States created particular
incentives for young persons to combine their
desire to drink with their ability to drive, and that
this interstate problem required a national
solution. The means it chose to address this
dangerous situation were reasonably calculated to
advance the general welfare. The conditions upon
which States receive the funds, moreover, could
not be more clearly stated by Congress. And the
State itself, rather than challenging the
germaneness of the condition to federal purposes,
admits that it “has never contended that the
congressional action was . . . unrelated to a
national concern in the absence of the Twenty-first
Amendment.” Indeed, the condition imposed by
Congress is directly related to one of the main
purposes for which highway funds are expended—
safe interstate travel. This goal of the interstate
highway system had been frustrated by varying
drinking ages among the States. . . . By enacting
§158, Congress conditioned the receipt of federal
funds in a way reasonably calculated to address
this particular impediment to a purpose for which
the funds are expended.
The remaining question about the validity of §158

—and the basic point of disagreement between the
parties—is whether the Twenty-first Amendment
constitutes an “independent constitutional bar” to
the conditional grant of federal funds. Petitioner,
relying on its view that the Twenty-first
Amendment prohibits direct regulation of drinking
ages by Congress, asserts that “Congress may not
use the spending power to regulate that which it
is prohibited from regulating directly under the
Twenty-first Amendment.” But our cases show that
this “independent constitutional bar” limitation on
the spending power is not of the kind petitioner
suggests. United States v. Butler, for example,
established that the constitutional limitations on
Congress when exercising its spending power are
less exacting than those on its authority to
regulate directly. . . .
. . . [T]he “independent constitutional bar”

limitation on the spending power is not, as
petitioner suggests, a prohibition on the indirect
achievement of objectives which Congress is not
empowered to achieve directly. Instead, we think
that the language in our earlier opinions stands
for the unexceptionable proposition that the
power may not be used to induce the States to
engage in activities that would themselves be
unconstitutional. Thus, for example, a grant of
federal funds conditioned on invidiously
discriminatory state action or the infliction of
cruel and unusual punishment would be an
illegitimate exercise of the Congress’ broad
spending power. But no such claim can be or is
made here. Were South Dakota to succumb to the
blandishments offered by Congress and raise its
drinking age to 21, the State’s action in so doing
would not violate the constitutional rights of
anyone.
Our decisions have recognized that in some

circumstances the financial inducement offered by
Congress might be so coercive as to pass the point
at which “pressure turns into compulsion.” Here,
however, Congress has directed only that a State
desiring to establish a minimum drinking age
lower than 21 lose a relatively small percentage of
certain federal highway funds. Petitioner contends
that the coercive nature of this program is evident
from the degree of success it has achieved. We
cannot conclude, however, that a conditional grant
of federal money of this sort is unconstitutional
simply by reason of its success in achieving the
congressional objective.
When we consider, for a moment, that all South

Dakota would lose if she adheres to her chosen
course as to a suitable minimum drinking age is
5% of the funds otherwise obtainable under
specified highway grant programs, the argument
as to coercion is shown to be more rhetoric than
fact. . . .
Here Congress has offered relatively mild

encouragement to the States to enact higher
minimum drinking ages than they would otherwise
choose. But the enactment of such laws remains
the prerogative of the States not merely in theory
but in fact. Even if Congress might lack the power
to impose a national minimum drinking age
directly, we conclude that encouragement to state
action found in §158 is a valid use of the spending
power. Accordingly, the judgment of the Court of
Appeals is
Affirmed.
JUSTICE O’CONNOR,
dissenting.
The Court today upholds the National Minimum
Drinking Age Amendment, 23 U.S.C. §158, as a
valid exercise of the spending power conferred by
Article I, §8. But §158 is not a condition on
spending reasonably related to the expenditure of
federal funds and cannot be justified on that
ground. Rather, it is an attempt to regulate the
sale of liquor, an attempt that lies outside
Congress’ power to regulate commerce because it
falls within the ambit of §2 of the Twenty-first
Amendment. . . .
When Congress appropriates money to build a

highway, it is entitled to insist that the highway be
a safe one. But it is not entitled to insist as a
condition of the use of highway funds that the
State impose or change regulations in other areas
of the State’s social and economic life because of
an attenuated or tangential relationship to
highway use or safety. Indeed, if the rule were
otherwise, the Congress could effectively regulate
almost any area of a State’s social, political, or
economic life on the theory that use of the
interstate transportation system is somehow
enhanced. If, for example, the United States were
to condition highway moneys upon moving the
state capital, I suppose it might argue that
interstate transportation is facilitated by locating
local governments in places easily accessible to
interstate highways—or, conversely, that highways
might become overburdened if they had to carry
traffic to and from the state capital. In my mind,
such a relationship is hardly more attenuated than
the one which the Court finds supports §158.
There is a clear place at which the Court can draw

the line between permissible and impermissible
conditions on federal grants. It is the line
identified in the Brief for the National Conference
of State Legislatures et al. as Amici Curiae:
“Congress has the power to spend for the

general welfare, it has the power to legislate
only for the delegated purposes.” . . .
This approach harks back to United States v.

Butler (1936), the last case in which this Court
struck down an Act of Congress as beyond the
authority granted by the Spending Clause. . . .
While Butler’s authority is questionable insofar as

it assumes that Congress has no regulatory power
over farm production, its discussion of the
spending power and its description of both the
power’s breadth and its limitations remain sound.
The Court’s decision in Butler also properly
recognizes the gravity of the task of appropriately
limiting the spending power. If the spending
power is to be limited only by Congress’ notion of
the general welfare, the reality, given the vast
financial resources of the Federal Government, is
that the Spending Clause gives “power to the
Congress to tear down the barriers, to invade the
states’ jurisdiction, and to become a parliament of
the whole people, subject to no restrictions save
such as are self-imposed.” This, of course, as
Butler held, was not the Framers’ plan and it is
not the meaning of the Spending Clause. . . .
The immense size and power of the Government of

the United States ought not obscure its
fundamental character. It remains a Government
of enumerated powers. Because 23 U.S.C. §158
cannot be justified as an exercise of any power
delegated to the Congress, it is not authorized by
the Constitution. The Court errs in holding it to be
the law of the land, and I respectfully dissent.
JUSTICE BRENNAN, dissenting.

I agree with Justice O’CONNOR that regulation of
the minimum age of purchasers of liquor falls
squarely within the ambit of those powers
reserved to the States by the Twenty-first
Amendment. Since States possess this
constitutional power, Congress cannot condition a
federal grant in a manner that abridges this right.
The Amendment, itself, strikes the proper balance
between federal and state authority. I therefore
dissent.
Rehnquist’s opinion gave strong support to the

federal spending power. The majority held that only
four basic requirements must be met for a federal
spending statute to be valid: (1) the expenditure
must be for the general welfare, (2) any conditions
imposed on the expenditure must be unambiguous,
(3) the conditions must be reasonably related to the
purpose of the expenditure, and (4) the legislation
must not violate any independent constitutional
provision. These are minimal requirements indeed,
especially since the Court acknowledged a policy of
deferring to the legislature as to determinations of
what promotes the general welfare. O’Connor’s
dissent, which praised much of what the Court
concluded in Butler, is not likely to find a great deal
of support today.
Five years after the Dole decision the justices

confronted another spending power dispute in the
case of New York v. United States (1992). As we
discussed in Chapter 6, this case involved the federal
government’s use of financial incentives to
encourage the states to provide for the disposal of
low-level radioactive waste generated within their
borders. Although the justices found fault with
portions of the challenged law that required the
states to enact or enforce a federal regulatory
program, they approved the financial incentive
provisions. The Court concluded that the federal
radioactive waste program was appropriately
justified under the commerce clause and did not
intrude on the sovereignty reserved to the states
under the Tenth Amendment. Consequently, the use
of financial incentives was a proper exercise of
Congress’s constitutional power to spend.
Decisions such as Dole and New York gave Congress

ample discretion to use the taxing and spending
power to “encourage” states to comply with federal
policy preferences. If Congress uses this power
effectively and within the limitations imposed by the
Court, it can extend its influence by providing
financial incentives for states to adopt federally
favored policies.
As the Court entered the twenty-first century, it had

not invalidated any federal spending legislation since
1936, when, in United States v. Butler, the justices
struck down the AAA. Yet the continuing judicial
support for federal taxing and spending programs
seemed to be running at odds with another line of
decisions. In cases such as United States v. Lopez
(1995) and Printz v. United States (1997), the
justices applied principles of federalism to strike
down congressional actions that encroached on the
policy-making authority of the states. What would
happen if Congress provided financial incentives that
were viewed by the states as being excessive,
leaving the state no choice but to participate in a
federal program? Would the Court under these
circumstances continue to support federal use of the
taxing and spending powers? Or would the Court
find such incentives to have a coercive effect that
would be destructive to the traditional relationship
between the federal government and the states? A
major clash over just these questions occurred in
2012 when the justices reviewed the
constitutionality of the Patient Protection and
Affordable Care Act (ACA).
We introduced the case of National Federation of

Independent Business v. Sebelius in the previous
chapter, where we focused on the federal
government’s argument that Congress has ample
authority under the commerce clause to require all
Americans not already covered by medical insurance
to buy a health care policy or pay a “shared
responsibility” penalty for failure to do so. We saw
that the Court concluded that the commerce power
did not extend so far as to allow Congress to
command unwilling individuals to purchase a
commercial product. The Court’s ruling, however,
did not invalidate the ACA. The government had an
alternative position, an argument that Congress
could enact the individual mandate through the use
of the constitutional power to tax.
Another significant provision of the ACA involved an

enlargement of the Medicaid program. This section
of the ACA expanded both the number of persons
eligible for Medicaid and the benefits provided.
Because Medicaid is jointly financed by the federal
and state governments, the expanded program
would be costly to the states. In the law, Congress
stipulated that state participation in the expanded
program was voluntary and also used the spending
power to provide generous funds to cover most of
the initial state costs of expanding the program.
However, if a state elected not to participate in the
program, it would lose all of its federal Medicaid
money. The federal government argued that the
spending clause gave Congress ample authority to
impose this requirement as a condition for receiving
federal dollars. A number of states objected,
however, claiming that the nonparticipation penalty
was a way to coerce the states into joining the
expanded program.
In the excerpt that appears here we highlight the

Court’s response to the taxing power justification for
the individual mandate and the spending power
rationale for the Medicaid expansion. Throughout
the opinions in this decision you will see references
to many of the perennial taxing and spending power
issues the Court has confronted since the beginning
of the Republic.

Sebelius 567 U.S. 519 (2012)
393.html

Vote on the taxing power challenge to the

Affordable Care Act:
5 (Breyer, Ginsburg, Kagan, Roberts,
Sotomayor)
4 (Alito, Kennedy, Scalia, Thomas)
Vote on the expansion of Medicaid:
7 (Alito, Breyer, Kagan, Kennedy, Roberts,

Scalia, Thomas)
2 (Ginsburg, Sotomayor)

THE COURT AND THE OPINION OF THE
COURT: Roberts
OPINION CONCURRING IN PART, CONCURRING
IN JUDGMENT, AND DISSENTING IN PART:
Ginsburg
JOINT OPINION DISSENTING: Alito,
Kennedy, Scalia, and Thomas
Facts:
In 2010 Congress passed the Patient Protection
and Affordable Care Act (ACA) with the goal of
increasing the number of Americans covered by
medical insurance and decreasing the cost of
health care. The constitutionality of the law was
challenged in several suits, including this one filed
by the National Federation of Independent
Business, twenty-six state governments, and
several individuals against Kathleen Sebelius, then
secretary of health and human services.
Two provisions of the ACA provoked the most
significant constitutional attacks. The first was the
“individual mandate” that directs most Americans
to purchase “minimum essential” health insurance
coverage for themselves and their dependents if
they do not receive such coverage from their
employers. Section 5000A directs that those who
do not comply with this provision are required to
make a “shared responsibility” payment to the
federal government. The act provides that this
“penalty” will be paid to the Internal Revenue
Service and “shall be assessed and collected in the
same manner” as tax penalties.
The challengers argued that Congress exceeded

its constitutional power in passing the law. The
government countered that Congress acted
properly under its power to regulate interstate
commerce and its power to tax. In Chapter 7 we
presented an excerpt from this decision in which
the Court concluded that the commerce clause did
not give Congress the authority to compel inactive
individuals to enter into commercial transactions.
With the excerpt here, we focus on the Court’s
reaction to the government’s claim that the power
to tax allows Congress to impose the individual
mandate.
The second provision in this controversy called for

an expansion of Medicaid. This program,
administered by the states but jointly funded by
state and federal governments, provides health
care for the poor. It is by far the largest source of
federal dollars granted to the states. About two-
thirds of all Medicaid funds come from the federal
government. Medicaid expenditures constitute a
state’s largest budget item, accounting for about
20 percent of a typical state’s expenditures.
The ACA called for an enlarged Medicaid program

that would expand the health care services
available to the poor. It would also increase the
number of people eligible for program benefits by
including all those whose incomes fall below 133
percent of federal poverty line. Once the program
was fully implemented the federal government
would cover 90 percent of the costs of the newly
eligible persons. The law did not require the states
to participate in the expanded program, but
nonparticipating states would face the loss of all
of their federal Medicaid dollars. The states
involved in this litigation claimed that Congress
had abused its spending powers by using financial
coercion to force the states to accept the new
Medicaid provisions.
The Eleventh Circuit Court of Appeals upheld the

Medicaid expansion but struck down the
individual mandate. The Supreme Court granted
review.
Arguments:
For the petitioners, National Federation
of Independent Business et al.:
It is settled law that a penalty imposed for a
violation of a legal requirement is not a tax.
The mandate and the “tax” are separate
issues. Congress cannot justify the
unconstitutional mandate by classifying the
penalty for violating it as a tax.
The wording used in the Affordable Care Act
clearly indicates that Congress considered the
consequences for violating the law to be a
penalty and not a tax. But if the “shared
responsibility” payment is a tax, then it is a
direct tax and must be apportioned on the
basis of population.
Congress may not use the spending power to
commandeer the legislative powers of the
states.
The ACA is an extreme and unprecedented
abuse of the spending power designed to
coerce the states into complying with the will
of Congress. The act leaves the states with no
reasonable alternative choices.
Approval of the ACA would mean that the
congressional spending power has no bounds.
For the respondent, Health and

Human Services Secretary
Kathleen Sebelius:
The minimum coverage provision operates as a
tax. It raises revenue, it is collected and
enforced by the Internal Revenue Service, and
the amount owed is based in part on income
level.
Taxes can have regulatory objectives as well as
revenue-generation goals.
The fact that the ACA uses the term penalty
rather than tax is not germane to the
constitutional inquiry.
It is settled law that Congress may fix the
terms on which it appropriates federal funds.
From the very beginning of the Medicaid
program Congress has reserved the right to
alter, amend, or repeal any provision of the act
and has done so many times.
The Medicaid expansion is so generous that the
states overwhelmingly will choose to
participate in it. This does not mean that the
law is coercive.
Chief Justice Roberts Announced the

Judgment of the Court and Delivered . . . an
Opinion with Respect to [the Authority of
Congress to Impose the Individual Mandate under
the Taxing Power and the Constitutionality of the
Medicaid Expansion].
Today we resolve constitutional challenges to two

provisions of the Patient Protection and Affordable
Care Act of 2010: the individual mandate, which
requires individuals to purchase a health
insurance policy providing a minimum level of
coverage; and the Medicaid expansion, which
gives funds to the States on the condition that
they provide specified health care to all citizens
whose income falls below a certain threshold. . . .
The exaction the Affordable Care Act imposes on

those without health insurance looks like a tax in
many respects. The “[s]hared responsibility
payment,” as the statute entitles it, is paid into the
Treasury by “taxpayer[s]” when they file their tax
returns. It does not apply to individuals who do
not pay federal income taxes because their
household income is less than the filing threshold
in the Internal Revenue Code. For taxpayers who
do owe the payment, its amount is determined by
such familiar factors as taxable income, number of
dependents, and joint filing status. The
requirement to pay is found in the Internal
Revenue Code and enforced by the IRS, which . . .
must assess and collect it “in the same manner as
taxes.” This process yields the essential feature of
any tax: it produces at least some revenue for the
Government. Indeed, the payment is expected to
raise about $4 billion per year by 2017.
It is of course true that the Act describes the

payment as a “penalty,” not a “tax.” But [this] does
not determine whether the payment may be
viewed as an exercise of Congress’s taxing power.
...
We have . . . held that exactions not labeled taxes

nonetheless were authorized by Congress’s power
to tax. In the License Tax Cases [1866], for
example, we held that federal licenses to sell
liquor and lottery tickets—for which the licensee
had to pay a fee—could be sustained as exercises
of the taxing power. And in New York v. United
States [1992] we upheld as a tax a “surcharge” on
out-of-state nuclear waste shipments, a portion of
which was paid to the Federal Treasury. We thus
ask whether the shared responsibility payment
falls within Congress’s taxing power,
“[d]isregarding the designation of the exaction,
and viewing its substance and application.” United
States v. Constantine (1935).
Our cases confirm this functional approach. For
example, in [Bailey v.] Drexel Furniture [1922], we
focused on three practical characteristics of the
so-called tax on employing child laborers that
convinced us the “tax” was actually a penalty.
First, the tax imposed an exceedingly heavy
burden—10 percent of a company’s net income—
on those who employed children, no matter how
small their infraction. Second, it imposed that
exaction only on those who knowingly employed
underage laborers. Such scienter requirements
are typical of punitive statutes, because Congress
often wishes to punish only those who
intentionally break the law. Third, this “tax” was
enforced in part by the Department of Labor, an
agency responsible for punishing violations of
labor laws, not collecting revenue.
The same analysis here suggests that the shared

responsibility payment may for constitutional
purposes be considered a tax, not a penalty: First,
for most Americans the amount due will be far less
than the price of insurance, and, by statute, it can
never be more. It may often be a reasonable
financial decision to make the payment rather
than purchase insurance, unlike the “prohibitory”
financial punishment in Drexel Furniture. Second,
the individual mandate contains no scienter
requirement. Third, the payment is collected
solely by the IRS through the normal means of
taxation—except that the Service is not allowed to
use those means most suggestive of a punitive
sanction, such as criminal prosecution. The
reasons the Court in Drexel Furniture held that
what was called a “tax” there was a penalty
support the conclusion that what is called a
“penalty” here may be viewed as a tax.
None of this is to say that the payment is not

intended to affect individual conduct. Although the
payment will raise considerable revenue, it is
plainly designed to expand health insurance
coverage. But taxes that seek to influence conduct
are nothing new. Some of our earliest federal
taxes sought to deter the purchase of imported
manufactured goods in order to foster the growth
of domestic industry. Today, federal and state
taxes can compose more than half the retail price
of cigarettes, not just to raise more money, but to
encourage people to quit smoking. And we have
upheld such obviously regulatory measures as
taxes on selling marijuana and sawed-off
shotguns. Indeed, “[e]very tax is in some measure
regulatory. To some extent it interposes an
economic impediment to the activity taxed as
compared with others not taxed.” That §5000A
seeks to shape decisions about whether to buy
health insurance does not mean that it cannot be a
valid exercise of the taxing power.
In distinguishing penalties from taxes, this Court

has explained that “if the concept of penalty
means anything, it means punishment for an
unlawful act or omission.” United States v.
Reorganized CF&I Fabricators of Utah, Inc.
(1996). While the individual mandate clearly aims
to induce the purchase of health insurance, it need
not be read to declare that failing to do so is
unlawful. Neither the Act nor any other law
attaches negative legal consequences to not
buying health insurance, beyond requiring a
payment to the IRS. The Government agrees with
that reading, confirming that if someone chooses
to pay rather than obtain health insurance, they
have fully complied with the law.
Indeed, it is estimated that four million people

each year will choose to pay the IRS rather than
buy insurance. We would expect Congress to be
troubled by that prospect if such conduct were
unlawful. That Congress apparently regards such
extensive failure to comply with the mandate as
tolerable suggests that Congress did not think it
was creating four million outlaws. It suggests
instead that the shared responsibility payment
merely imposes a tax citizens may lawfully choose
to pay in lieu of buying health insurance. . . .
Even if the taxing power enables Congress to

impose a tax on not obtaining health insurance,
any tax must still comply with other requirements
in the Constitution. Plaintiffs argue that the
shared responsibility payment does not do so,
citing Article I, §9, clause 4. That clause provides:
“No Capitation, or other direct, Tax shall be laid,
unless in Proportion to the Census or Enumeration
herein before directed to be taken.” This
requirement means that any “direct Tax” must be
apportioned so that each State pays in proportion
to its population. According to the plaintiffs, if the
individual mandate imposes a tax, it is a direct tax,
and it is unconstitutional because Congress made
no effort to apportion it among the States. . . .
A tax on going without health insurance does not

fall within any recognized category of direct tax. It
is not a capitation. Capitations are taxes paid by
every person, “without regard to property,
profession, or any other circumstance.” Hylton [v.
United States, 1796]. The whole point of the
shared responsibility payment is that it is
triggered by specific circumstances—earning a
certain amount of income but not obtaining health
insurance. The payment is also plainly not a tax on
the ownership of land or personal property. The
shared responsibility payment is thus not a direct
tax that must be apportioned among the several
States.
There may, however, be a more fundamental

objection to a tax on those who lack health
insurance. Even if only a tax, the payment under
§5000A(b) remains a burden that the Federal
Government imposes for an omission, not an act.
If it is troubling to interpret the Commerce Clause
as authorizing Congress to regulate those who
abstain from commerce, perhaps it should be
similarly troubling to permit Congress to impose a
tax for not doing something.
. . . [I]t is abundantly clear the Constitution does

not guarantee that individuals may avoid taxation
through inactivity. A capitation, after all, is a tax
that everyone must pay simply for existing, and
capitations are expressly contemplated by the
Constitution. The Court today holds that our
Constitution protects us from federal regulation
under the Commerce Clause so long as we abstain
from the regulated activity. But from its creation,
the Constitution has made no such promise with
respect to taxes. . . .
The Affordable Care Act’s requirement that
certain individuals pay a financial penalty for not
obtaining health insurance may reasonably be
characterized as a tax. Because the Constitution
permits such a tax, it is not our role to forbid it, or
to pass upon its wisdom or fairness.
. . . The Federal Government does have the power

to impose a tax on those without health insurance.
Section 5000A is therefore constitutional, because
it can reasonably be read as a tax.
The States also contend that the Medicaid

expansion exceeds Congress’s authority under the
Spending Clause. They claim that Congress is
coercing the States to adopt the changes it wants
by threatening to withhold all of a State’s
Medicaid grants, unless the State accepts the new
expanded funding and complies with the
conditions that come with it. This, they argue,
violates the basic principle that the “Federal
Government may not compel the States to enact or
administer a federal regulatory program.” New
York. . . .
The Spending Clause grants Congress the power

“to pay the Debts and provide for the . . . general
Welfare of the United States.” We have long
recognized that Congress may use this power to
grant federal funds to the States, and may
condition such a grant upon the States’ “taking
certain actions that Congress could not require
them to take.” Such measures “encourage a State
to regulate in a particular way, [and] influenc[e] a
State’s policy choices.” New York. The conditions
imposed by Congress ensure that the funds are
used by the States to “provide for the . . . general
Welfare” in the manner Congress intended.
At the same time, our cases have recognized limits

on Congress’s power under the Spending Clause
to secure state compliance with federal objectives.
. . . [The] “Constitution has never been understood
to confer upon Congress the ability to require the
States to govern according to Congress’
instructions.” New York. Otherwise the two-
government system established by the Framers
would give way to a system that vests power in
one central government, and individual liberty
would suffer.
That insight has led this Court to strike down

federal legislation that commandeers a State’s
legislative or administrative apparatus for federal
purposes. See, e.g., Printz [v. United States,
1997], New York. It has also led us to scrutinize
Spending Clause legislation to ensure that
Congress is not using financial inducements to
exert a “power akin to undue influence.” Steward
Machine Co. v. Davis (1937). Congress may use its
spending power to create incentives for States to
act in accordance with federal policies. But when
“pressure turns into compulsion,” the legislation
runs contrary to our system of federalism. “[T]he
Constitution simply does not give Congress the
authority to require the States to regulate.” New
York. That is true whether Congress directly
commands a State to regulate or indirectly
coerces a State to adopt a federal regulatory
system as its own.
Permitting the Federal Government to force the
States to implement a federal program would
threaten the political accountability key to our
federal system. . . . Spending Clause programs do
not pose this danger when a State has a legitimate
choice whether to accept the federal conditions in
exchange for federal funds. In such a situation,
state officials can fairly be held politically
accountable for choosing to accept or refuse the
federal offer. But when the State has no choice,
the Federal Government can achieve its objectives
without accountability, just as in New York and
Printz. Indeed, this danger is heightened when
Congress acts under the Spending Clause,
because Congress can use that power to
implement federal policy it could not impose
directly under its enumerated powers. . . .
The States . . . object that Congress has “crossed

the line distinguishing encouragement from
coercion,” New York, in the way it has structured
the funding: Instead of simply refusing to grant
the new funds to States that will not accept the
new conditions, Congress has also threatened to
withhold those States’ existing Medicaid funds.
The States claim that this threat serves no
purpose other than to force unwilling States to
sign up for the dramatic expansion in health care
coverage effected by the Act.
Given the nature of the threat and the programs at

issue here, we must agree. . . .
In South Dakota v. Dole, we considered a

challenge to a federal law that threatened to
withhold five percent of a State’s federal highway
funds if the State did not raise its drinking age to
21. . . .
We accordingly asked whether “the financial

inducement offered by Congress” was “so coercive
as to pass the point at which ‘pressure turns into
compulsion.’” By “financial inducement” the Court
meant the threat of losing five percent of highway
funds; no new money was offered to the States to
raise their drinking ages. We found that the
inducement was not impermissibly coercive,
because Congress was offering only “relatively
mild encouragement to the States.” Dole. We
observed that “all South Dakota would lose if she
adheres to her chosen course as to a suitable
minimum drinking age is 5%” of her highway
funds. In fact, the federal funds at stake
constituted less than half of one percent of South
Dakota’s budget at the time. . . .
In this case, the financial “inducement” Congress

has chosen is much more than “relatively mild
encouragement”—it is a gun to the head. Section
1396c of the Medicaid Act provides that if a
State’s Medicaid plan does not comply with the
Act’s requirements, the Secretary of Health and
Human Services may declare that “further
payments will not be made to the State.” A State
that opts out of the Affordable Care Act’s
expansion in health care coverage thus stands to
lose not merely “a relatively small percentage” of
its existing Medicaid funding, but all of it.
Medicaid spending accounts for over 20 percent of
the average State’s total budget, with federal
funds covering 50 to 83 percent of those costs.
The Federal Government estimates that it will pay
out approximately $3.3 trillion between 2010 and
2019 in order to cover the costs of pre-expansion
Medicaid. In addition, the States have developed
intricate statutory and administrative regimes
over the course of many decades to implement
their objectives under existing Medicaid. It is easy
to see how the Dole Court could conclude that the
threatened loss of less than half of one percent of
South Dakota’s budget left that State with a
“prerogative” to reject Congress’s desired policy,
“not merely in theory but in fact.” The threatened
loss of over 10 percent of a State’s overall budget,
in contrast, is economic dragooning that leaves
the States with no real option but to acquiesce in
the Medicaid expansion. . . .
Nothing in our opinion precludes Congress from

offering funds under the Affordable Care Act to
expand the availability of health care, and
requiring that States accepting such funds comply
with the conditions on their use. What Congress is
not free to do is to penalize States that choose not
to participate in that new program by taking away
their existing Medicaid funding. . . . In light of the
Court’s holding, the Secretary cannot . . .
withdraw existing Medicaid funds for failure to
comply with the requirements set out in the
expansion. . . .
We have no way of knowing how many States will

accept the terms of the expansion, but we do not
believe Congress would have wanted the whole
Act to fall, simply because some may choose not to
participate. The other reforms Congress enacted,
after all, will remain “fully operative as a law” and
will still function in a way “consistent with
Congress’ basic objectives in enacting the
statute.” Confident that Congress would not have
intended anything different, we conclude that the
rest of the Act need not fall in light of our
constitutional holding.
The Affordable Care Act is constitutional in part

and unconstitutional in part. The individual
mandate cannot be upheld as an exercise of
Congress’s power under the Commerce Clause.
That Clause authorizes Congress to regulate
interstate commerce, not to order individuals to
engage in it. In this case, however, it is reasonable
to construe what Congress has done as increasing
taxes on those who have a certain amount of
income, but choose to go without health
insurance. Such legislation is within Congress’s
power to tax.
As for the Medicaid expansion, that portion of the

Affordable Care Act violates the Constitution by
threatening existing Medicaid funding. Congress
has no authority to order the States to regulate
according to its instructions. Congress may offer
the States grants and require the States to comply
with accompanying conditions, but the States
must have a genuine choice whether to accept the
offer. The States are given no such choice in this
case: They must either accept a basic change in
the nature of Medicaid, or risk losing all Medicaid
funding. The remedy for that constitutional
violation is to preclude the Federal Government
from imposing such a sanction. That remedy does
not require striking down other portions of the
Affordable Care Act.
The Framers created a Federal Government of
limited powers, and assigned to this Court the
duty of enforcing those limits. The Court does so
today. But the Court does not express any opinion
on the wisdom of the Affordable Care Act. Under
the Constitution, that judgment is reserved to the
people.

Eleventh Circuit is affirmed in part and reversed
in part.
It is so ordered.
JUSTICE GINSBURG . . .
concurring in part, concurring
in the judgment in part, and
dissenting in part.
I agree with the Chief Justice that the . . .
minimum coverage provision is a proper exercise
of Congress’ taxing power. . . . I would also hold
that the Spending Clause permits the Medicaid
expansion exactly as Congress enacted it. . . .
The Spending Clause authorizes Congress “to pay

the Debts and provide for the . . . general Welfare
of the United States.” To ensure that federal funds
granted to the States are spent “to ‘provide for the
. . . general Welfare’ in the manner Congress
intended,” Congress must of course have authority
to impose limitations on the States’ use of the
federal dollars. This Court, time and again, has
respected Congress’ prescription of spending
conditions, and has required States to abide by
them. In particular, we have recognized Congress’
prerogative to condition a State’s receipt of
Medicaid funding on compliance with the terms
Congress set for participation in the program.
Congress’ authority to condition the use of federal

funds is not confined to spending programs as first
launched. The legislature may, and often does,
amend the law, imposing new conditions grant
recipients henceforth must meet in order to
continue receiving funds. . . .
The ACA . . . relates solely to the federally funded

Medicaid program; if States choose not to comply,
Congress has not threatened to withhold funds
earmarked for any other program. Nor does the
ACA use Medicaid funding to induce States to take
action Congress itself could not undertake. The
Federal Government undoubtedly could operate
its own health-care program for poor persons, just
as it operates Medicare for seniors’ health care.
That is what makes this such a simple case, and

the Court’s decision so unsettling. Congress,
aiming to assist the needy, has appropriated
federal money to subsidize state health-insurance
programs that meet federal standards. The
principal standard the ACA sets is that the state
program cover adults earning no more than 133%
of the federal poverty line. Enforcing that
prescription ensures that federal funds will be
spent on health care for the poor in furtherance of
Congress’ present perception of the general
welfare. . . .
Congress has broad authority to construct or
adjust spending programs to meet its
contemporary understanding of “the general
Welfare.” Helvering v. Davis (1937). Courts owe a
large measure of respect to Congress’
characterization of the grant programs it
establishes. See Steward Machine. . . .
At bottom, my colleagues’ position is that the

States’ reliance on federal funds limits Congress’
authority to alter its spending programs. This gets
things backwards: Congress, not the States, is
tasked with spending federal money in service of
the general welfare. And each successive
Congress is empowered to appropriate funds as it
sees fit. When the 110th Congress reached a
conclusion about Medicaid funds that differed
from its predecessors’ view, it abridged no State’s
right to “existing,” or “pre-existing,” funds. For, in
fact, there are no such funds. There is only money
States anticipate receiving from future
Congresses.
Congress has delegated to the Secretary of Health

and Human Services the authority to withhold, in
whole or in part, federal Medicaid funds from
States that fail to comply with the Medicaid Act as
originally composed and as subsequently
amended. The Chief Justice, however, holds that
the Constitution precludes the Secretary from
withholding “existing” Medicaid funds based on
States’ refusal to comply with the expanded
Medicaid program. . . . I disagree that any such
withholding would violate the Spending Clause.
Accordingly, I would affirm the decision of the
Court of Appeals for the Eleventh Circuit in this
regard.
But in view of The Chief Justice’s disposition, I

agree with him that the Medicaid Act’s
severability clause determines the appropriate
remedy. That clause provides that “[i]f any
provision of [the Medicaid Act], or the application
thereof to any person or circumstance, is held
invalid, the remainder of the chapter, and the
application of such provision to other persons or
circumstances shall not be affected thereby.” . . .
This editorial cartoon, published in the Columbus

Dispatch, commented on the Supreme Court’s
decision to uphold the Patient Protection and
Affordable Care Act’s individual mandate provision
as an appropriate use of Congress’s power to tax.
Supporters of the legislation initially argued that
the financial sanctions for noncompliance with the
law were penalties and not taxes.
Nate Beeler, Courtesy of Cagle Cartoons
Joint Opinion of JUSTICE

SCALIA, JUSTICE KENNEDY,
ALITO, dissenting.
The Government contends . . . that “the minimum
coverage provision is independently authorized by
Congress’s taxing power.” The phrase
“independently authorized” suggests the existence
of a creature never hitherto seen in the United
States Reports: A penalty for constitutional
purposes that is also a tax for constitutional
purposes. In all our cases the two are mutually
exclusive. The provision challenged under the
Constitution is either a penalty or else a tax. . . .
The issue is not whether Congress had the power
to frame the minimum-coverage provision as a tax,
but whether it did so.
In answering that question we must, if “fairly

possible,” construe the provision to be a tax rather
than a mandate-with-penalty, since that would
render it constitutional rather than
unconstitutional. But we cannot rewrite the
statute to be what it is not. “[A]lthough this Court
will often strain to construe legislation so as to
save it against constitutional attack, it must not
and will not carry this to the point of perverting
the purpose of a statute . . . or judicially rewriting
it.” Commodity Futures Trading Comm’n v. Schor
(1986). In this case, there is simply no way,
“without doing violence to the fair meaning of the
words used,” to escape what Congress enacted: a
mandate that individuals maintain minimum
essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and

a penalty: “[A] tax is an enforced contribution to
provide for the support of government; a penalty .
. . is an exaction imposed by statute as
punishment for an unlawful act.” United States v.
Reorganized CF&I Fabricators of Utah, Inc.
(1996). . . .
So the question is, quite simply, whether the

exaction here is imposed for violation of the law. It
unquestionably is. The minimum-coverage
provision is . . . entitled “Requirement to maintain
minimum essential coverage.” It commands that
every “applicable individual shall . . . ensure that
the individual . . . is covered under minimum
essential coverage.” And the immediately
following provision states that, “[i]f . . . an
applicable individual . . . fails to meet the
requirement of subsection (a) . . . there is hereby
imposed . . . a penalty.” And several of Congress’
legislative “findings” with regard to §5000A
confirm that it sets forth a legal requirement and
constitutes the assertion of regulatory power, not
mere taxing power. . . .
Quite separately, the fact that Congress (in its own

words) “imposed . . . a penalty,” for failure to buy
insurance is alone sufficient to render that failure
unlawful. . . .
. . . [T]o say that the Individual Mandate merely

imposes a tax is not to interpret the statute but to
rewrite it.
We now consider respondents’ second challenge

to the constitutionality of the ACA, namely, that
the Act’s dramatic expansion of the Medicaid
program exceeds Congress’ power to attach
conditions to federal grants to the States.
The ACA does not legally compel the States to

participate in the expanded Medicaid program,
but the Act authorizes a severe sanction for any
State that refuses to go along: termination of all
the State’s Medicaid funding. For the average
State, the annual federal Medicaid subsidy is
equal to more than one-fifth of the State’s
expenditures.—A State forced out of the program
would not only lose this huge sum but would
almost certainly find it necessary to increase its
own health-care expenditures substantially,
requiring either a drastic reduction in funding for
other programs or a large increase in state taxes.
And these new taxes would come on top of the
federal taxes already paid by the State’s citizens
to fund the Medicaid program in other States. . . .
When federal legislation gives the States a real

choice whether to accept or decline a federal aid
package, the federal-state relationship is in the
nature of a contractual relationship. And just as a
contract is voidable if coerced, “[t]he legitimacy of
Congress’ power to legislate under the spending
power . . . rests on whether the State voluntarily
and knowingly accepts the terms of the
‘contract.’” If a federal spending program coerces
participation the States have not “exercise[d] their
choice”—let alone made an “informed choice.”
Coercing States to accept conditions risks the
destruction of the “unique role of the States in our
system.” “[T]he Constitution has never been
understood to confer upon Congress the ability to
require the States to govern according to
Congress’ instructions.” Congress may not “simply
commandeer the legislative processes of the
enforce a federal regulatory program.” Congress
effectively engages in this impermissible
compulsion when state participation in a federal
spending program is coerced, so that the States’
choice whether to enact or administer a federal
regulatory program is rendered illusory.
Where all Congress has done is to “encourag[e]

state regulation rather than compe[1] it, state
governments remain responsive to the local
electorate’s preferences; state officials remain
accountable to the people. [But] where the
Federal Government compels States to regulate,
the accountability of both state and federal
officials is diminished.” . . .
. . . [T]he legitimacy of attaching conditions to

federal grants to the States depends on the
voluntariness of the States’ choice to accept or
decline the offered package. Therefore, if States
really have no choice other than to accept the
package, the offer is coercive, and the conditions
cannot be sustained under the spending power.
And as our decision in South Dakota v. Dole makes
clear, theoretical voluntariness is not enough. . . .
. . . When a heavy federal tax is levied to support a

federal program that offers large grants to the
States, States may, as a practical matter, be
unable to refuse to participate in the federal
program and to substitute a state alternative.
Even if a State believes that the federal program
is ineffective and inefficient, withdrawal would
likely force the State to impose a huge tax
increase on its residents, and this new state tax
would come on top of the federal taxes already
paid by residents to support subsidies to
participating States. . . .
Whether federal spending legislation crosses the

line from enticement to coercion is often difficult
to determine, and courts should not conclude that
legislation is unconstitutional on this ground
unless the coercive nature of an offer is
unmistakably clear. In this case, however, there
can be no doubt. In structuring the ACA, Congress
unambiguously signaled its belief that every State
would have no real choice but to go along with the
Medicaid Expansion. If the anticoercion rule does
not apply in this case, then there is no such rule. .
..
In sum, it is perfectly clear from the goal and

structure of the ACA that the offer of the Medicaid
Expansion was one that Congress understood no
State could refuse. The Medicaid Expansion
therefore exceeds Congress’ spending power and
cannot be implemented. . . .
For the reasons here stated, we would find the Act

invalid in its entirety. We respectfully dissent.

Sebelius was a landmark ruling on the power of
Congress. First, it narrowed the range of federal
regulatory power under the commerce clause by
declaring that Congress does not have the authority
to order individuals to engage in a commercial
transaction. Second, it once again upheld the use of
the taxing power as a way to justify legislation that
Congress might not otherwise have the authority to
enact. And third, for the first time in seventy-five
years, the justices struck down a federal spending
initiative, finding that the Medicaid expansion
violated the principles of federalism by coercing the
states to participate in a federal program.
The Supreme Court’s decision on the Affordable

Care Act made significant contributions to our
understanding of the commerce clause, the power to
tax and spend, and the constitutional relationship
between the federal government and the states.
Subsequent political events, however, significantly
altered the law itself. The 2016 national elections
gave Republicans control of both houses of Congress
and ushered Donald Trump into the White House.
These electoral victories provided members of the
party an opening to fulfill their pledge to repeal and
replace “Obamacare.” Initially they were
unsuccessful, but in 2018 the controversial
individual mandate, a major component of the law’s
foundation, was repealed as part of the Tax Cuts and
Jobs Act, leaving the viability of the health care law
in some doubt. As for the Medicaid expansion
provisions, thirty-four states (including the District
of Columbia) elected to participate in the new
coverage opportunities. However, seventeen states,
all located in the South, Midwest, and Rocky
Mountain regions, took advantage of the Supreme
Court’s decision and decided not to expand
coverage. Some states that initially rejected
participation have continued to consider the
possibility of joining the program. These events
rendered the country’s health care policy somewhat
unstable and guaranteed that the issue would
remain high on the national political agenda.
Restrictions on the Revenue

Powers of the States
Taxation is a concurrent power: the states exercised
the power to tax prior to the ratification of the
Constitution and retain that authority today. The
powers of the states to tax are very broad, limited
primarily by provisions in the states’ own
constitutions and laws. Taxes on property, income,
and sales provide the bulk of funds for state
government activities.
The Constitution, however, removed certain sources

of revenue from the states. Article I, Section 10,
explicitly prohibits the states from taxing imports or
exports without the approval of Congress. In
addition, the commerce clause blocks the states
from imposing taxes that place an unreasonable
burden on interstate or foreign commerce. Aside
from these limitations, the states remain free to
develop their own tax structures and sources of
revenue. Importantly, however, state taxation
systems often implicate interstate commerce
concerns. For this reason, the principles discussed in
the previous chapter, especially constitutional bans
on states placing undue burdens on or
discriminating against interstate commerce, become
relevant in state taxation disputes.
State Taxes on Foreign

Commerce
In Brown v. Maryland (1827), the Supreme Court
first faced a question of the validity of state taxes on
imports. The dispute centered on a Maryland law
that required importers of foreign goods to pay a
license fee. The Supreme Court struck down the
statute as a tax on imports and as infringing on the
authority of the federal government to regulate
foreign commerce. An important part of the Court’s
opinion, however, dealt with the following question:
When does an imported article cease to be an import
and become part of the taxable goods within a state?
The Court’s answer to this question was the “original
package” doctrine. For the majority, John Marshall
wrote, “While [the imported article remains] the
property of the importer, in his warehouse, in the
original form or package in which it was imported, a
tax upon it is too plainly a duty on imports to escape
the prohibition in the constitution.”
The original package doctrine meant that goods
flowing into the United States remained within the
federal government’s taxing and regulating power
until they were sold, processed, or broken out of
their original packaging. Once any of those events
took place, the articles became normal property
within the state and subject to state taxation. The
impact of this interpretation was that large
warehouses filled with imported goods ready for
shipment to other parts of the United States were
free from state taxation as long as no sale took place
and the materials remained in their original
packages. The states balked at this rule, arguing
that they should be able to levy property taxes on
such goods as long as the taxes were
nondiscriminatory—that is, if imported articles
stored in warehouses were taxed on exactly the
same basis as other property within the state. In
Low v. Austin (1872), the Court rejected the
constitutionality of such nondiscriminatory taxes,
adhering to Marshall’s rationale in Brown.
Although attacked by legal scholars and those

promoting the interests of the states, the original
package doctrine survived until 1976, when the
justices accepted an appeal from a decision by the
Georgia Supreme Court that approved certain
nondiscriminatory taxes on warehoused imports.
After reanalyzing the issues involved, the Court
altered a rule of law that had been in effect for more
than a century.
Michelin Tire Corp. v. Wages 423 U.S. 276 (1976)
court/423/276.html


Powell, Rehnquist, Stewart, White)

CONCURRING OPINION: White
NOT PARTICIPATING: Stevens
Facts:
Michelin Tire Corporation operated a warehouse
in Gwinnett County, Georgia, just outside of
Atlanta. The company imported tires and tire
products into the United States from France and
Nova Scotia and stored them in the Georgia
warehouse for later distribution to retail outlets.
When the county tax assessors levied a
nondiscriminatory ad valorem property tax on the
inventory, the company sued W. L. Wages, the
county tax commissioner, for relief, claiming that,
except for some tire tubes that had been removed
from their original containers, the warehouse
contents were constitutionally free from state
taxation.
The local court granted the relief requested, and

the Georgia Supreme Court heard the county’s
appeal. The state high court ruled that the tires
were subject to tax because, after being imported
in bulk, they had been sorted and arranged for
sale. Michelin sought a reversal by the U.S.
Supreme Court, which ignored subtle questions
regarding the application of the original package
doctrine and instead focused on the fundamental
issue of whether any warehoused imports are
subject to state taxation.
Arguments:
For the petitioner, Michelin Tire
Corporation:
The taxed goods in question are located in the
importer’s warehouse in their original package
or form. Segregating the tires by size and style
does not constitute taking them out of their
original packages.
The articles taxed remain imports under Brown
v. Maryland’s original package doctrine.
Michelin paid the United States a duty for the
right to import and sell the tires as well as to
have the tires free from state and local
taxation until they lose their status as an
import.
The Constitution forbids state and local
taxation of imports. Brown v. Maryland should
be reaffirmed.
For the respondent, W. L.

Wages, county tax
commissioner:
A state has the power to levy
nondiscriminatory ad valorem taxes on
property located in its jurisdiction.
When Michelin organizes the tires by size and
style, it takes its goods out of their original
package.
Exempting from taxation warehoused goods of
an importer imposes a competitive burden on
domestic companies that similarly store goods
in warehouses and are taxed.
Brown v. Maryland has become outdated and
should be overruled.

the Court.
Low v. Austin [1872] is the leading decision of this

Court holding that the States are prohibited by the
Import-Export Clause from imposing a
nondiscriminatory ad valorem property tax on
imported goods until they lose their character as
imports and become incorporated into the mass of
property in the State. The Court there reviewed a
decision of the California Supreme Court that had
sustained the constitutionality of California’s
nondiscriminatory ad valorem tax on the ground
that the Import-Export Clause only prohibited
taxes upon the character of the goods as imports
and therefore did not prohibit nondiscriminatory
taxes upon the goods as property. This Court
reversed on its reading of the seminal opinion
construing the Import-Export Clause, Brown v.
Maryland (1827), as holding that “[w]hilst
retaining their character as imports, a tax upon
them, in any shape, is within the constitutional
prohibition.”
Scholarly analysis has been uniformly critical of

Low v. Austin. It is true that Mr. Chief Justice
Marshall, speaking for the Court in Brown v.
Maryland, said that “while [the thing imported
remains] the property of the importer, in his
warehouse, in the original form or package in
which it was imported, a tax upon it is too plainly
a duty on imports to escape the prohibition in the
constitution.” Commentators have uniformly
agreed that Low v. Austin misread this dictum in
holding that the Court in Brown included
nondiscriminatory ad valorem property taxes
among prohibited “imposts” or “duties,” for the
contrary conclusion is plainly to be inferred from
consideration of the specific abuses which led the
Framers to include the Import-Export Clause in
the Constitution.
Our independent study persuades us that a

nondiscriminatory ad valorem property tax is not
the type of state exaction which the Framers of
the Constitution or the Court in Brown had in
mind as being an “impost” or “duty” and that Low
v. Austin’s reliance upon the Brown dictum to
reach the contrary conclusion was misplaced.
One of the major defects of the Articles of

Confederation, and a compelling reason for the
calling of the Constitutional Convention of 1787,
was the fact that the Articles essentially left the
individual States free to burden commerce both
among themselves and with foreign countries very
much as they pleased. Before 1787 it was
commonplace for seaboard States with port
facilities to derive revenue to defray the costs of
state and local government by imposing taxes on
imported goods destined for customers in other
States. At the same time, there was no secure
source of revenue for the central government. . . .
The Framers of the Constitution thus sought to

alleviate three main concerns by committing sole
power to lay imposts and duties on imports in the
Federal Government, with no concurrent state
power: the Federal Government must speak with
one voice when regulating commercial relations
with foreign governments, and tariffs, which might
affect foreign relations, could not be implemented
by the States consistently with that exclusive
power; import revenues were to be the major
source of revenue of the Federal Government and
should not be diverted to the States; and harmony
among the States might be disturbed unless
seaboard States, with their crucial ports of entry,
were prohibited from levying taxes on citizens of
other States by taxing goods merely flowing
through their ports to the other States not
situated as favorably geographically.
Nothing in the history of the Import-Export Clause

even remotely suggests that a nondiscriminatory
ad valorem property tax which is also imposed on
imported goods that are no longer in import
transit was the type of exaction that was regarded
as objectionable by the Framers of the
Constitution. For such an exaction, unlike
discriminatory state taxation against imported
goods as imports, was not regarded as an
impediment that severely hampered commerce or
constituted a form of tribute by seaboard States to
the disadvantage of the other States.
It is obvious that such nondiscriminatory property

taxation can have no impact whatsoever on the
Federal Government’s exclusive regulation of
foreign commerce, probably the most important
purpose of the Clause’s prohibition. By definition,
such a tax does not fall on imports as such
because of their place of origin. It cannot be used
to create special protective tariffs or particular
preferences for certain domestic goods, and it
cannot be applied selectively to encourage or
discourage any importation in a manner
inconsistent with federal regulation.
Nor will such taxation deprive the Federal

Government of the exclusive right to all revenues
from imposts and duties on imports and exports,
since that right by definition only extends to
revenues from exactions of a particular category;
if nondiscriminatory ad valorem taxation is not in
that category, it deprives the Federal Government
of nothing to which it is entitled. Unlike imposts
and duties, which are essentially taxes on the
commercial privilege of bringing goods into a
country, such property taxes are taxes by which a
State apportions the cost of such services as
police and fire protection among the beneficiaries
according to their respective wealth; there is no
reason why an importer should not bear his share
of these costs along with his competitors handling
only domestic goods. The Import-Export Clause
clearly prohibits state taxation based on the
foreign origin of the imported goods, but it cannot
be read to accord imported goods preferential
treatment that permits escape from uniform taxes
imposed without regard to foreign origin for
services which the State supplies. . . .
Finally, nondiscriminatory ad valorem property

taxes do not interfere with the free flow of
imported goods among the States, as did the
exactions by States under the Articles of
Confederation directed solely at imported goods. .
..
Since prohibition of nondiscriminatory ad valorem

property taxation would not further the objectives
of the Import-Export Clause, only the clearest
constitutional mandate should lead us to condemn
such taxation. . . .
The Court in Low v. Austin nevertheless expanded

the prohibition of the Clause to include
nondiscriminatory ad valorem property taxes, and
did so with no analysis, but with only the
statement that Brown v. Maryland had marked the
line “where the power of Congress over the goods
imported ends, and that of the State begins, with
as much precision as the subject admits.” But the
opinion in Brown v. Maryland cannot properly be
read to propose such a broad definition of
“imposts” or “duties.” The tax there held to be
prohibited by the Import-Export Clause was
imposed under a Maryland statute that required
importers of foreign goods, and wholesalers
selling the same by bale or package, to obtain a
license and pay a $50 fee therefor, subject to
certain forfeitures and penalties for
noncompliance. The importers contested the
validity of the statute, arguing that the license was
a “palpable evasion” of the Import-Export Clause
because it was essentially equivalent to a duty on
imports. Since the power to impose a license on
importers would also entail a power to price them
out of the market or prohibit them entirely, the
importers concluded that such a power must be
repugnant to the exclusive federal power to
regulate foreign commerce.
The Attorney General of Maryland, Roger Taney,

later Chief Justice, defended the constitutionality
of Maryland’s law. He argued that the fee was not
a prohibited “impost” or “duty” because the
license fee was not a tax upon the imported goods,
but on the importers, a tax upon the occupation
and nothing more, and the Import-Export Clause
prohibited only exactions on the right of
importation and not an exaction upon the
occupation of importers. . . .
The Court in Brown refused to define “imposts” or

“duties” comprehensively, since the Maryland
statute presented only the question “whether the
legislature of a State can constitutionally require
the importer of foreign articles to take out a
license from the State, before he shall be
permitted to sell a bale or package so imported.”
However, in holding that the Maryland license fee
was within prohibited “imposts, or duties on
imports . . . ” the Court significantly characterized
an impost or duty as “a custom or a tax levied on
articles brought into a country,” although also
holding that, while normally levied before the
articles are permitted to enter, the exactions are
no less within the prohibition if levied upon the
goods as imports after entry; since “imports” are
the goods imported, the prohibition of imposts or
duties on “imports” was more than a prohibition of
a tax on the act of importation; it “extends to a
duty levied after [the thing imported] has entered
the country.” And since the power to prohibit sale
of an article is the power to prohibit its
introduction into the country, the privilege of sale
must be a concomitant of the privilege of
importation, and licenses on the right to sell must
therefore also fall within the constitutional
prohibition.
Taney’s argument was persuasive, however, to the

extent that the Court “was prompted to declare
that the words of the prohibition ought not to be
pressed to their utmost extent; . . . in our complex
system, the object of the powers conferred on the
government of the Union, and the nature of the
often conflicting powers which remain in the
States, must always be taken into view. . . . [T]here
must be a point of time when the prohibition
ceases, and the power of the State to tax
commences. . . . ”
Despite the language and objectives of the Import-

Export Clause, and despite the limited nature of
the holding in Brown v. Maryland, the Court in
Low v. Austin ignored the warning that the
boundary between the power of States to tax
persons and property within their jurisdictions and
the limitations on the power of the States to
impose imposts or duties with respect to “imports”
was a subtle and difficult line which must be
drawn as the cases arise. Low v. Austin also
ignored the cautionary remark that, for those
reasons, it “might be premature to state any rule
as being universal in its application.” Although it
was “sufficient” in the context of Maryland’s
license tax on the right to sell imported goods to
note that a tax imposed directly on imported
goods which have not been acted upon in any way
would clearly fall within the constitutional
prohibition, that observation did not apply, as the
foregoing analysis indicates, to a state tax which
treated those same goods without regard to the
fact of their foreign origin. . . .
It follows from the foregoing that Low v. Austin

was wrongly decided. That decision must be, and
is, overruled.
Petitioner’s tires in this case were no longer in

transit. They were stored in a distribution
warehouse from which petitioner conducted a
wholesale operation, taking orders from
franchised dealers and filling them from a
constantly replenished inventory. The warehouse
was operated no differently than would be a
distribution warehouse utilized by a wholesaler
dealing solely in domestic goods, and we therefore
hold that the nondiscriminatory property tax
levied on petitioner’s inventory of imported tires
was not interdicted by the Import-Export Clause of
the Constitution. The judgment of the Supreme
Court of Georgia is accordingly
Affirmed.
State Taxes on Interstate
Commerce
State taxes on interstate commerce have provided
another source of constitutional disputes. A state has
the right to tax commerce that occurs within its
borders, but taxes that discriminate against or place
an undue burden on interstate commerce violate the
commerce clause. In the nation’s formative years
this rule of constitutional interpretation was
relatively easy to apply, but given the changes in
economic realities and the significant alterations in
the definition of interstate commerce, the situation is
now much more complex.
Today, relatively little commercial activity is purely

intrastate. Consequently, whenever a state imposes a
tax on business activity, it can be charged that the
state is placing a burden on interstate commerce.
The Supreme Court has attempted to fashion a rule
that copes with modern economic conditions and yet
is mindful of three important considerations. First, if
the states are to remain viable entities, they must
retain the ability to tax commercial activities.
Second, true burdens on interstate commerce, as
well as taxes that discriminate against it, must be
avoided. Third, simply engaging in an interstate
commercial activity should not suffice to exempt a
company from paying its fair share in state taxes.
Naturally, these principles are far easier to state
than to apply to real situations.
In Complete Auto Transit v. Brady (1977) the justices
concluded that their previous decisions were
inconsistent with contemporary conditions and that
a new statement on the authority of states to tax
activities affecting interstate commerce was
required. In his opinion for the Court, Justice Harry
A. Blackmun found fault with some leading
precedents and replaced them with a four-pronged
test to be used in determining the validity of state
taxation.
Complete Auto Transit v. Brady 430 U.S. 274

(1977)
court/430/274.html


Powell, Rehnquist, Stevens, Stewart, White)
Facts:
Complete Auto Transit was a Michigan
corporation doing business in Mississippi. Under
its contract with General Motors (GM), Complete’s
job was to transport new vehicles manufactured
out of state and then brought into Mississippi by
rail. The automobiles were loaded onto Complete’s
trucks in the Jackson, Mississippi, rail yards and
delivered to GM dealerships around the state.
There is no doubt that Complete’s business was
interstate commerce. The company provided the
last segment in the transportation of goods
manufactured out of state to their retail
destinations within the state.
Mississippi imposed a tax on transportation

companies for the privilege of doing business in
the state at a rate of 5 percent of gross income
from state business. The state applied the tax to
businesses operating in intra- and interstate
commerce. In 1971 the Mississippi Tax
Commission informed Complete that it owed
$122,160.59 in taxes from a three-year period
beginning in 1968. In 1972 Complete received a
second bill for $42,990.89 for taxes due over the
previous year. Complete paid the taxes under
protest and sued for a refund.
Complete based its case on a 1951 Supreme Court

precedent, Spector Motor Service v. O’Connor,
which held that a state tax on the privilege of
doing business is unconstitutional if imposed on
any activity that is part of interstate commerce.
The Mississippi Supreme Court upheld the tax,
saying that Complete enjoyed the various services
of the state and should be obliged to pay its fair
share of state taxes. Because the tax did not
discriminate against interstate commerce and was
based exclusively on income derived from
Mississippi sources, it was not constitutionally
defective. Complete appealed to the U.S. Supreme
Court, asking it to strike down the tax on the basis
of the Spector precedent.
Arguments:
For the appellant, Complete Auto
Transit, Inc.:
Complete Auto’s business of providing the final
stage in the movement of motor vehicles from
out of state to designated Mississippi dealers is
exclusively part of interstate commerce.
That the mode of transportation changes from
rail to truck does not alter the interstate nature
of the transportation.
Mississippi’s “privilege of doing business” tax
places a direct burden on interstate commerce.
Such taxes are constitutionally impermissible
even if fairly apportioned and
nondiscriminatory, according to Spector Motor
Service v. O’Connor.
Allowing such taxes would have severe impacts
on companies like Complete Auto. Spector
Motor should be reaffirmed.
For the appellee, Charles R.

Brady, chairman, Mississippi
State Tax Commission:
The Mississippi tax is levied based on business
activities occurring inside Mississippi, where
Complete Auto enjoys the protections and
services provided by the state. No tax is placed
on interstate shipments leaving Mississippi.
The tax is nondiscriminatory. Businesses
engaged in purely intrastate transportation
services pay similar taxes. Removing the tax
on Complete Auto would give it an advantage
over intrastate transportation providers.
The tax is based on taxable events that occur
inside Mississippi. Therefore, the tax on those
activities cannot be duplicated by any other
state.
Spector Motor has been roundly criticized and
should be overruled.
Mr. Justice Blackmun Delivered the Opinion of

the Court.
Once again we are presented with “‘the perennial

problem of the validity of a state tax for the
privilege of carrying on within a state, certain
activities’ related to a corporation’s operation of
an interstate business.” The issue in this case is
whether Mississippi runs afoul of the Commerce
Clause when it applies the tax it imposes on “the
privilege of . . . doing business” within the State to
appellant’s activity in interstate commerce. The
Supreme Court of Mississippi unanimously
sustained the tax against appellant’s constitutional
challenge. We noted probable jurisdiction in order
to consider anew the applicable principles in this
troublesome area. . . .
Appellant’s attack is based solely on decisions of

this Court holding that a tax on the “privilege” of
engaging in an activity in the State may not be
applied to an activity that is part of interstate
commerce. See, e.g., Spector Motor Service v.
O’Connor (1951); Freeman v. Hewit (1946). This
rule looks only to the fact that the incidence of the
tax is the “privilege of doing business”; it deems
irrelevant any consideration of the practical effect
of the tax. The rule reflects an underlying
philosophy that interstate commerce should enjoy
a sort of “free trade” immunity from state
taxation.
Appellee, in its turn, relies on decisions of this

Court stating that “[i]t was not the purpose of the
commerce clause to relieve those engaged in
interstate commerce from their just share of state
tax burden even though it increases the cost of
doing the business,” Western Live Stock v. Bureau
of Revenue (1938). These decisions have
considered not the formal language of the tax
statute but rather its practical effect, and have
sustained a tax against Commerce Clause
challenge when the tax is applied to an activity
with a substantial nexus with the taxing State, is
fairly apportioned, does not discriminate against
interstate commerce, and is fairly related to the
services provided by the State.
Over the years, the Court has applied this

practical analysis in approving many types of tax
that avoided running afoul of the prohibition
against taxing the “privilege of doing business,”
but in each instance it has refused to overrule the
prohibition. Under the present state of the law, the
Spector rule, as it has come to be known, has no
relationship to economic realities. Rather it stands
only as a trap for the unwary draftsman.
The modern origin of the Spector rule may be
found in Freeman v. Hewit. . . .
Mr. Justice Frankfurter, speaking for five Members

of the Court, announced a blanket prohibition
against any state taxation imposed directly on an
interstate transaction. He explicitly deemed
unnecessary to the decision of the case any
showing of discrimination against interstate
commerce or error in apportionment of the tax.
He recognized that a State could constitutionally
tax local manufacture, impose license taxes on
corporations doing business in the State, tax
property within the State, and tax the privilege of
residence in the State and measure the privilege
by net income, including that derived from
interstate commerce. Nevertheless, a direct tax on
interstate sales, even if fairly apportioned and
nondiscriminatory, was held to be unconstitutional
per se. . . .
The rule announced in Freeman was viewed in the

commentary as a triumph of formalism over
substance, providing little guidance even as to
formal requirements. . . .
The prohibition against state taxation of the

“privilege” of engaging in commerce that is
interstate was reaffirmed in Spector Motor
Service v. O’Connor (1951), a case similar on its
facts to the instant case. The taxpayer there was a
Missouri corporation engaged exclusively in
interstate trucking. Some of its shipments
originated or terminated in Connecticut.
Connecticut imposed on a corporation a “tax or
excise upon its franchise for the privilege of
carrying on or doing business within the state,”
measured by apportioned net income. Spector
brought suit in federal court to enjoin collection of
the tax as applied to its activities. The District
Court issued the injunction. The Second Circuit
reversed. This Court, with three Justices in
dissent, in turn reversed the Court of Appeals and
held the tax unconstitutional as applied. . . .
In this case, of course, we are confronted with a

situation like that presented in Spector. The tax is
labeled a privilege tax “for the privilege of . . .
doing business” in Mississippi, and the activity
taxed is, or has been assumed to be, interstate
commerce. We note again that no claim is made
that the activity is not sufficiently connected to the
State to justify a tax, or that the tax is not fairly
related to benefits provided the taxpayer, or that
the tax discriminates against interstate commerce,
or that the tax is not fairly apportioned.
The view of the Commerce Clause that gave rise

to the rule of Spector perhaps was not without
some substance. Nonetheless, the possibility of
defending it in the abstract does not alter the fact
that the Court has rejected the proposition that
interstate commerce is immune from state
taxation:
“It is a truism that the mere act of carrying on

business in interstate commerce does not
exempt a corporation from state taxation. ‘It
was not the purpose of the commerce clause
to relieve those engaged in interstate
commerce from their just share of state tax
burden even though it increases the cost of
doing business.’” Western Live Stock v. Bureau
of Revenue (1938).
Not only has the philosophy underlying the rule

been rejected, but the rule itself has been stripped
of any practical significance. If Mississippi had
called its tax one on “net income” or on the “going
concern value” of appellant’s business, the
Spector rule could not invalidate it. There is no
economic consequence that follows necessarily
from the use of the particular words, “privilege of
doing business,” and a focus on that formalism
merely obscures the question whether the tax
produces a forbidden effect. Simply put, the
Spector rule does not address the problems with
which the Commerce Clause is concerned.
Accordingly, we now reject the rule of Spector
Motor Service, Inc. v. O’Connor, that a state tax on
the “privilege of doing business” is per se
unconstitutional when it is applied to interstate
commerce, and that case is overruled.
There being no objection to Mississippi’s tax on

appellant except that it was imposed on nothing
other than the “privilege of doing business” that is
interstate, the judgment of the Supreme Court of
Mississippi is affirmed.
It is so ordered.
The Complete Auto Transit decision established four

criteria that a state tax on interstate commerce must
meet to be valid: (1) the targeted activity must be
sufficiently connected to the state to justify a tax, (2)
the tax must be fairly apportioned so that the levy is
based on intrastate activity or income not subject to
taxation by other states, (3) the tax must not
discriminate against interstate commerce, and (4)
the tax must be fairly related to the services
provided by the state. These criteria assume that
Congress has not preempted the state tax by
imposing conflicting regulations on the interstate
commerce activities involved.
In an unusual occurrence by today’s standards, the

entire Court supported Justice Harry Blackmun’s
opinion in Complete Auto Transit: not a single justice
wrote a concurring or dissenting view. Given this
unanimity, it is not surprising that the Court has
applied the precedent to subsequent disputes over
the validity of state taxes on activities affecting
interstate and foreign commerce. In Wardair Canada
v. Florida Department of Revenue (1986), the
justices ruled that a state tax on the sale of aviation
fuel to an airline engaged in foreign commerce
satisfied the four requirements. Similarly, in
Goldberg v. Sweet (1989), the justices upheld an
Illinois excise tax on interstate telephone calls, and
in Oklahoma Tax Commission v. Jefferson Lines
(1995), the Court concluded that a state tax on
tickets for interstate bus travel did not violate the
constitutional principles established in Complete
Auto Transit.
Therefore, the four-pronged test established in 1977
constitutes the Court’s current policy on state
taxation of interstate activities. It appears to provide
a workable compromise between the needs of the
states to secure revenue and the Constitution’s
mandate that interstate commerce not be
unreasonably burdened.
Complete Auto Transit v. Brady dealt with a state’s

attempt to tax the intrastate portion of a larger
interstate enterprise. Because the company used its
trucks to transport GM cars from the railroad station
to dealers across the state, it was clear that the
company had both an economic and a physical
presence in Mississippi. But what if a company does
business within a state and yet has no physical
presence there—in other words, no offices,
warehouses, stores, or employees? Such a company
might conduct all of its transactions by interstate
mail or telephone, or over the Internet. This
situation has given birth to a decades-long
controversy involving the imposition and collection
of sales taxes.
Forty-five states place a tax on retail sales as a

revenue-generating policy. Only Alaska, Delaware,
Montana, New Hampshire, and Oregon do not
impose such taxes. Paying the sales tax is the duty of
the purchaser, but the system would be impossible to
enforce if individuals themselves were responsible
for remitting to the state the required tax on all their
purchases. To make the system workable, the states
oblige retailers to collect the tax from the purchaser
at the time of sale.
To foreclose the possibility of individuals avoiding

sales taxes the courts have allowed states to impose
taxes on residents’ purchases of goods out of state
for use in the home state. These are called “use”
taxes and are normally the equivalent of the state’s
sales tax. A man, for example, who lives in a state
with a 7 percent sales tax might be tempted to buy a
new automobile in a neighboring state that has no
sales tax. By avoiding his home state sales tax, the
purchaser could save $2,000 or more on the
purchase. When he tries to register his new car in
his home state, however, he likely would face a use
tax of about 7 percent. Such taxes place in-state and
out-of-state car dealers on equal footing.
Smaller items purchased online, by mail order, or by

telephone may be subject to the same use tax, but
such purchases, unlike automobiles, do not require
registration or licensing. This makes the collection of
the sales or use tax nearly impossible. To create a
means of collecting such taxes, some states passed
laws requiring out-of-state vendors to collect taxes
on each sale and remit the proceeds to the
purchaser’s home state. But are such laws
constitutional? What authority does a state have to
reach beyond its borders and compel a seller to
collect taxes on its behalf?
These questions were first answered in National
Bellas Hess, Inc. v. Department of Revenue of
Illinois (1967). Bellas Hess, a Missouri mail-order
retailer, challenged an Illinois law that imposed a
use tax on goods Illinois residents purchased from
out-of-state sources. The law required the out-of-
state vendor to collect the tax and deposit it with the
Illinois Revenue Department. Bellas Hess claimed
that the law imposed an unconstitutional burden on
interstate commerce and that Illinois violated due
process guarantees because it had no authority to
impose any law on a company that was located in a
different state. The Supreme Court agreed with
Bellas Hess. It struck down the law and announced
an easily followed rule to govern such situations: a
state cannot impose tax collection obligations on a
company unless the business has a physical presence
—offices, employees, warehouses, and the like—in
the state. Because Bellas Hess did all of its business
by mail and telephone and had no physical
operations in Illinois, it was constitutionally exempt
from the Illinois law.
For the next twenty-five years, the National Bellas

Hess precedent was good law. But during this time,
the mail-order business grew significantly, aided in
part by the fact that individuals could often buy
goods from out-of-state firms and evade paying any
sales or use taxes on the purchases. Concerned
about the revenue lost through out-of-state retail
purchases, the states asked the Court to reconsider
its National Bellas Hess ruling in Quill Corp. v.
North Dakota (1992).
Quill Corporation was an office supply company with

facilities and warehouses in California, Georgia, and
Illinois. None of its employees worked in North
Dakota, and the company had no tangible property
in that state. Quill sold its products nationwide via
catalog, direct mail, and telephone. Its goods were
delivered by mail or shipped by truck or rail. The
company had annual sales of about $1 million to
some three thousand North Dakota customers,
making Quill the sixth-largest vendor of office
supplies in the state. In 1987 North Dakota amended
its tax code to require mail-order operators such as
Quill to collect and remit to the state taxes on all
sales made to North Dakota residents. Quill refused
to collect and pay such taxes, claiming, based on
National Bellas Hess, that North Dakota had no
authority over corporations that did not have a
physical presence in the state.
The Court used this case to modify the position it

took in National Bellas Hess. With only Justice Byron
White in dissent, the justices backed away from the
position that due process of law is violated when a
state requires businesses with no physical presence
in the state to collect and remit sales taxes. Yet the
Court remained committed to the proposition that
such laws violate the commerce clause. The decision,
therefore, continued to preclude states from tapping
a very large revenue source.
By resting the decision on the commerce clause,
however, the Quill ruling made Congress a major
player in this policy area. Because Congress has
broad powers over interstate commerce, the
legislature had authority to allow states to pass laws
such as the one in North Dakota. Over the years,
intense lobbying by cash-starved states put pressure
on Congress to enact such legislation. During this
same period, the Internet was born and cyber
commerce began to grow. Congress generally took
the position that it was more important to let the
Internet develop unimpeded by state taxation than it
was to respond to state revenue demands.
By the second decade of the twenty-first century,

however, conditions had changed radically. In part
because of protection from state taxation, Internet
commerce had grown rapidly, often to the detriment
of traditional stores. Also escalating was the amount
of revenue lost to the states as individuals
increasingly deserted in-state retailers to shop for
goods from out-of-state Internet outlets. This gave
rise to a new set of state attempts to tap into this
potential funding source. As a result, in South
Dakota v. Wayfair (2018), the Court once again was
drawn into this taxation controversy.
South Dakota v. Wayfair 585 U.S. ____ (2018)
494.html
Vote: 5 (Alito, Ginsburg, Gorsuch, Kennedy,

Thomas)
4 (Breyer, Kagan, Roberts, Sotomayor)

CONCURRING OPINIONS: Gorsuch,
Thomas
DISSENTING OPINION: Roberts
Facts:
In this case the Court reconsidered two previous
rulings regarding the constitutional authority of a
state to require out-of-state retailers that have no
physical presence in the state to collect and remit
sales taxes from in-state transactions. In National
Bellas Hess v. Department of Revenue of Illinois
(1967), the Court ruled that the due process and
commerce clauses prohibit states from imposing
such obligations on out-of-state businesses.
Twenty-five years later, in Quill Corp v. North
Dakota (1992), the justices abandoned their due
process objections, but reaffirmed the commerce
clause barrier against such state taxation policies.
With the explosive growth of Internet sales, cash-

starved states were eager to exploit e-commerce
as a revenue source. In-state retailers with brick-
and-mortar outlets supported this effort as a
method of eliminating the market advantage
enjoyed by their Internet competitors, many of
which were not obliged to collect sales taxes.
In 2016 South Dakota passed a law requiring out-
of-state retailers to collect and remit sales taxes as
if the seller had a physical presence in the state.
The law applied only to sellers that annually
delivered more than $100,000 of goods and
services into South Dakota or engaged in 200 or
more yearly sales transactions with state
residents.
Wayfair, Overstock, and Newegg, large Internet

retailers, sell and ship goods across the United
States, including to residents of South Dakota.
None of these companies had a physical presence
in the state, and none of them collected sales
taxes on South Dakota transactions. South Dakota
took legal action against the companies to force
compliance with the law; the companies
responded by arguing that the law violated the
commerce clause. State courts, on the basis of
Quill, ruled in favor of the companies, and South
Dakota requested Supreme Court review.
Arguments:
For the petitioner, the state of South
Dakota:
The physical presence rule is an outdated,

indefensible doctrinal error. Quill should be
overruled.
Changing commercial practices and
circumstances merit radically limiting or
eliminating the physical presence rule. It
should not apply to e-commerce.
That Congress has not acted to alter the
physical presence rule should not be
interpreted as congressional support for Quill.
The use of the Internet, mail, and common
carrier to transact business with a state’s
residents is sufficient nexus with the state to
establish the state’s authority to apply its
taxation laws.
For the respondents, Wayfair, et

al.:
Quill was correctly decided. The doctrine of
stare decisis dictates that Quill should not be
overruled. Retailers have developed their
businesses with reliance on Quill. Congress
remains the proper institution to resolve this
issue.
Compliance with state laws such as the one at
issue places an unreasonable burden on multi-
state retailers.
Quill’s physical presence rule is a clear and
workable standard.
The growth of Internet sales does not alter the
constitutional ban on states imposing burdens
on interstate commerce.

Court.
Modern precedents rest upon two primary

principles that mark the boundaries of a State’s
authority to regulate interstate commerce. First,
state regulations may not discriminate against
interstate commerce; and second, States may not
impose undue burdens on interstate commerce.
State laws that discriminate against interstate
commerce face “a virtually per se rule of
invalidity.” Granholm v. Heald (2005). State laws
that “regulat[e] even-handedly to effectuate a
legitimate local public interest . . . will be upheld
unless the burden imposed on such commerce is
clearly excessive in relation to the putative local
benefits.” Pike v. Bruce Church, Inc. (1970).
Although subject to exceptions and variations,
these two principles guide the courts in
adjudicating cases challenging state laws under
These principles also animate the Court’s

Commerce Clause precedents addressing the
validity of state taxes. The Court explained the
now-accepted framework for state taxation in
Complete Auto Transit, Inc. v. Brady (1977). The
Court held that a State “may tax exclusively
interstate commerce so long as the tax does not
create any effect forbidden by the Commerce
Clause.” After all, “interstate commerce may be
required to pay its fair share of state taxes.” D. H.
Holmes Co. v. McNamara (1988). The Court will
sustain a tax so long as it (1) applies to an activity
with a substantial nexus with the taxing State, (2)
is fairly apportioned, (3) does not discriminate
against interstate commerce, and (4) is fairly
related to the services the State provides.
Complete Auto.
Before Complete Auto, the Court had addressed a
challenge to an Illinois tax that required out-of-
state retailers to collect and remit taxes on sales
made to consumers who purchased goods for use
within Illinois. [National Bellas Hess v.
Department of Revenue of Illinois (1967)]. The
Court held that a mail-order company “whose only
connection with customers in the State is by
common carrier or the United States mail” lacked
the requisite minimum contacts with the State
required by both the Due Process Clause and the
Commerce Clause. Unless the retailer maintained
a physical presence such as “retail outlets,
solicitors, or property within a State,” the State
lacked the power to require that retailer to collect
a local use tax. The dissent disagreed: “There
should be no doubt that this large-scale,
systematic, continuous solicitation and
exploitation of the Illinois consumer market is a
sufficient ‘nexus’ to require Bellas Hess to collect
from Illinois customers and to remit the use tax.”
In 1992, the Court reexamined the physical

presence rule in Quill [Corp. v. North Dakota].
That case presented a challenge to North Dakota’s
“attempt to require an out-of-state mail-order
house that has neither outlets nor sales
representatives in the State to collect and pay a
use tax on goods purchased for use within the
State. Despite the fact that Bellas Hess linked due
process and the Commerce Clause together, the
Court in Quill overruled the due process holding,
but not the Commerce Clause holding; and it thus
reaffirmed the physical presence rule.
. . . [T]he Quill majority concluded that the
physical presence rule was necessary to prevent
undue burdens on interstate commerce. It
grounded the physical presence rule in Complete
Auto’s requirement that a tax have a “‘substantial
nexus’” with the activity being taxed. . . .
The physical presence rule has “been the target of

criticism over many years from many quarters.”
Quill, it has been said, was “premised on
assumptions that are unfounded” and “riddled
with internal inconsistencies.” Quill created an
inefficient “online sales tax loophole” that gives
out-of-state businesses an advantage. And “while
nexus rules are clearly necessary,” the Court
“should focus on rules that are appropriate to the
twenty-first century, not the nineteenth.” Each
year, the physical presence rule becomes further
removed from economic reality and results in
significant revenue losses to the States. These
critiques underscore that the physical presence
rule, both as first formulated and as applied today,
is an incorrect interpretation of the Commerce
Clause.
Quill is flawed on its own terms. First, the physical

presence rule is not a necessary interpretation of
the requirement that a state tax must be “applied
to an activity with a substantial nexus with the
taxing State.” Complete Auto. Second, Quill
creates rather than resolves market distortions.
And third, Quill imposes the sort of arbitrary,
formalistic distinction that the Court’s modern
Commerce Clause precedents disavow.
All agree that South Dakota has the authority to
tax these transactions. . . .
The central dispute is whether South Dakota may

require remote sellers to collect and remit the tax
without some additional connection to the State. .
. . There just must be “a substantial nexus with the
taxing State.” Complete Auto. . . .
The Quill majority expressed concern that without

the physical presence rule “a state tax might
unduly burden interstate commerce” by subjecting
retailers to tax-collection obligations in thousands
of different taxing jurisdictions. But the
administrative costs of compliance, especially in
the modern economy with its Internet technology,
are largely unrelated to whether a company
happens to have a physical presence in a State.
For example, a business with one salesperson in
each State must collect sales taxes in every
jurisdiction in which goods are delivered; but a
business with 500 salespersons in one central
location and a website accessible in every State
need not collect sales taxes on otherwise identical
nationwide sales. In other words, under Quill, a
small company with diverse physical presence
might be equally or more burdened by compliance
costs than a large remote seller. The physical
presence rule is a poor proxy for the compliance
costs faced by companies that do business in
multiple States . . .
The Court has consistently explained that the

Commerce Clause was designed to prevent States
from engaging in economic discrimination so they
would not divide into isolated, separable units. But
it is “not the purpose of the [C]ommerce [C]lause
to relieve those engaged in interstate commerce
from their just share of state tax burden.”
Complete Auto. And it is certainly not the purpose
of the Commerce Clause to permit the Judiciary to
create market distortions. . . .
Quill puts both local businesses and many

interstate businesses with physical presence at a
competitive disadvantage relative to remote
sellers. Remote sellers can avoid the regulatory
burdens of tax collection and can offer de facto
lower prices caused by the widespread failure of
consumers to pay the tax on their own. This
“guarantees a competitive benefit to certain firms
simply because of the organizational form they
choose” while the rest of the Court’s
jurisprudence “is all about preventing
discrimination between firms.” In effect, Quill has
come to serve as a judicially created tax shelter
for businesses that decide to limit their physical
presence and still sell their goods and services to
a State’s consumers—something that has become
easier and more prevalent as technology has
advanced.
Worse still, the rule produces an incentive to avoid

physical presence in multiple States. Distortions
caused by the desire of businesses to avoid tax
collection mean that the market may currently
lack storefronts, distribution points, and
employment centers that otherwise would be
efficient or desirable. The Commerce Clause must
not prefer interstate commerce only to the point
where a merchant physically crosses state
borders. Rejecting the physical presence rule is
necessary to ensure that artificial competitive
advantages are not created by this Court’s
precedents. This Court should not prevent States
from collecting lawful taxes through a physical
presence rule that can be satisfied only if there is
an employee or a building in the State.
. . . Quill . . . treats economically identical actors

differently, and for arbitrary reasons.
Consider, for example, two businesses that sell

furniture online. The first stocks a few items of
inventory in a small warehouse in North Sioux
City, South Dakota. The second uses a major
warehouse just across the border in South Sioux
City, Nebraska, and maintains a sophisticated
website with a virtual showroom accessible in
every State, including South Dakota. By reason of
its physical presence, the first business must
collect and remit a tax on all of its sales to
customers from South Dakota, even those sales
that have nothing to do with the warehouse. But,
under Quill, the second, hypothetical seller cannot
be subject to the same tax for the sales of the
same items made through a pervasive Internet
presence. This distinction simply makes no sense.
So long as a state law avoids “any effect forbidden
by the Commerce Clause,” Complete Auto, courts
should not rely on anachronistic formalisms to
invalidate it. The basic principles of the Court’s
Commerce Clause jurisprudence are grounded in
functional, marketplace dynamics; and States can
and should consider those realities in enacting
and enforcing their tax laws. . . .
The “dramatic technological and social changes”
of our “increasingly interconnected economy”
mean that buyers are “closer to most major
retailers” than ever before—“regardless of how
close or far the nearest storefront.” Between
targeted advertising and instant access to most
consumers via any internet-enabled device, “a
business may be present in a State in a
meaningful way without” that presence “being
physical in the traditional sense of the term.” A
virtual showroom can show far more inventory, in
far more detail, and with greater opportunities for
consumer and seller interaction than might be
possible for local stores. Yet the continuous and
pervasive virtual presence of retailers today is,
under Quill, simply irrelevant. This Court should
not maintain a rule that ignores these substantial
virtual connections to the State.
The physical presence rule as defined and

enforced in Bellas Hess and Quill is not just a
technical legal problem—it is an extraordinary
imposition by the Judiciary on States’ authority to
collect taxes and perform critical public functions.
Forty-one States, two Territories, and the District
of Columbia now ask this Court to reject the test
formulated in Quill. Quill’s physical presence rule
intrudes on States’ reasonable choices in enacting
their tax systems. And that it allows remote sellers
to escape an obligation to remit a lawful state tax
is unfair and unjust. It is unfair and unjust to those
competitors, both local and out of State, who must
remit the tax; to the consumers who pay the tax;
and to the States that seek fair enforcement of the
sales tax, a tax many States for many years have
considered an indispensable source for raising
revenue. . . .
In the name of federalism and free markets, Quill

does harm to both. The physical presence rule it
defines has limited States’ ability to seek long-
term prosperity and has prevented market
participants from competing on an even playing
field.
“Although we approach the reconsideration of our

decisions with the utmost caution, stare decisis is
not an inexorable command.” Pearson v. Callahan
(2009). Here, stare decisis can no longer support
the Court’s prohibition of a valid exercise of the
States’ sovereign power.
If it becomes apparent that the Court’s Commerce

Clause decisions prohibit the States from
exercising their lawful sovereign powers in our
federal system, the Court should be vigilant in
correcting the error. While it can be conceded that
Congress has the authority to change the physical
presence rule, Congress cannot change the
constitutional default rule. It is inconsistent with
the Court’s proper role to ask Congress to address
a false constitutional premise of this Court’s own
creation. Courts have acted as the front line of
review in this limited sphere; and hence it is
important that their principles be accurate and
logical, whether or not Congress can or will act in
response. It is currently the Court, and not
Congress, that is limiting the lawful prerogatives
of the States.
Further, the real world implementation of
Commerce Clause doctrines now makes it
manifest that the physical presence rule as
defined by Quill must give way to the “far-
reaching systemic and structural changes in the
economy” and “many other societal dimensions”
caused by the Cyber Age. Though Quill was wrong
on its own terms when it was decided in 1992,
since then the Internet revolution has made its
earlier error all the more egregious and harmful. .
..
The Internet’s prevalence and power have

changed the dynamics of the national economy. In
1992, mail-order sales in the United States totaled
$180 billion. Last year, e-commerce retail sales
alone were estimated at $453.5 billion. Since the
Department of Commerce first began tracking e-
commerce sales, those sales have increased
tenfold from 0.8 percent to 8.9 percent of total
retail sales in the United States. And it is likely
that this percentage will increase. Last year, e-
commerce grew at four times the rate of
traditional retail, and it shows no sign of any
slower pace.
This expansion has also increased the revenue

shortfall faced by States seeking to collect their
sales and use taxes. In 1992, it was estimated that
the States were losing between $694 million and
$3 billion per year in sales tax revenues as a result
of the physical presence rule. Now estimates
range from $8 to $33 billion. . . .
Respondents argue that “the physical presence

rule has permitted start-ups and small businesses
to use the Internet as a means to grow their
companies and access a national market, without
exposing them to the daunting complexity and
business-development obstacles of nationwide
sales tax collection.” . . . These burdens may pose
legitimate concerns in some instances,
particularly for small businesses that make a small
volume of sales to customers in many States. State
taxes differ, not only in the rate imposed but also
in the categories of goods that are taxed and,
sometimes, the relevant date of purchase.
Eventually, software that is available at a
reasonable cost may make it easier for small
businesses to cope with these problems. Indeed,
as the physical presence rule no longer controls,
those systems may well become available in a
short period of time, either from private providers
or from state taxing agencies themselves. And in
all events, Congress may legislate to address
these problems if it deems it necessary and fit to
do so.
In this case, however, South Dakota affords small

merchants a reasonable degree of protection. The
law at issue requires a merchant to collect the tax
only if it does a considerable amount of business
in the State. . . .
For these reasons, the Court concludes that the

physical presence rule of Quill is unsound and
incorrect. The Court’s decisions in Quill Corp. v.
North Dakota (1992), and National Bellas Hess,
Inc. v. Department of Revenue of Ill. (1967),
should be, and now are, overruled. . . .
In the absence of Quill and Bellas Hess, the first
prong of the Complete Auto test simply asks
whether the tax applies to an activity with a
substantial nexus with the taxing State. “[S]uch a
nexus is established when the taxpayer [or
collector] ‘avails itself of the substantial privilege
of carrying on business’ in that jurisdiction.” Polar
Tankers, Inc. v. City of Valdez (2009).
Here, the nexus is clearly sufficient based on both

the economic and virtual contacts respondents
have with the State. The Act applies only to sellers
that deliver more than $100,000 of goods or
services into South Dakota or engage in 200 or
more separate transactions for the delivery of
goods and services into the State on an annual
basis. This quantity of business could not have
occurred unless the seller availed itself of the
substantial privilege of carrying on business in
South Dakota. And respondents are large, national
companies that undoubtedly maintain an extensive
virtual presence. Thus, the substantial nexus
requirement of Complete Auto is satisfied in this
case. . . .
The judgment of the Supreme Court of South

Dakota is vacated, and the case is remanded for
further proceedings not inconsistent with this
opinion.
It is so ordered.
JUSTICE THOMAS, concurring.

[A] quarter century of experience has convinced
me that Bellas Hess and Quill “can no longer be
rationally justified.” The same is true for this
Court’s entire negative Commerce Clause
jurisprudence. Although I adhered to that
jurisprudence in Quill, it is never too late to
“surrende[r] former views to a better considered
position.” I therefore join the Court’s opinion.
JUSTICE GORSUCH,
concurring.
Our dormant commerce cases usually prevent
States from discriminating between in-state and
out-of-state firms. National Bellas Hess, Inc. v.
Department of Revenue of Ill. (1967), and Quill
Corp. v. North Dakota (1992) do just the opposite.
For years they have enforced a judicially created
tax break for out-of-state Internet and mail-order
firms at the expense of in-state brick-and-mortar
rivals. As Justice White recognized 26 years ago,
judges have no authority to construct a
discriminatory “tax shelter” like this. Quill
(opinion concurring in part and dissenting in part).
The Court is right to correct the mistake and I am
pleased to join its opinion.

whom JUSTICE BREYER,
JUSTICE SOTOMAYOR, and
JUSTICE KAGAN join,
dissenting.
In National Bellas Hess, Inc. v. Department of
Revenue of Ill. (1967), this Court held that, under
the dormant Commerce Clause, a State could not
require retailers without a physical presence in
that State to collect taxes on the sale of goods to
its residents. A quarter century later, in Quill
Corp. v. North Dakota (1992), this Court was
invited to overrule Bellas Hess but declined to do
so. Another quarter century has passed, and
another State now asks us to abandon the
physical-presence rule. I would decline that
invitation as well.
I agree that Bellas Hess was wrongly decided, for

many of the reasons given by the Court. The Court
argues in favor of overturning that decision
because the “Internet’s prevalence and power
have changed the dynamics of the national
economy.” But that is the very reason I oppose
discarding the physical-presence rule. E-
commerce has grown into a significant and vibrant
part of our national economy against the backdrop
of established rules, including the physical-
presence rule. Any alteration to those rules with
the potential to disrupt the development of such a
critical segment of the economy should be
undertaken by Congress. The Court should not act
on this important question of current economic
policy, solely to expiate a mistake it made over 50
years ago. . . .
In Quill, this Court emphasized that the decision

to hew to the physical-presence rule on stare
decisis grounds was “made easier by the fact that
the underlying issue is not only one that Congress
may be better qualified to resolve, but also one
that Congress has the ultimate power to resolve.”
Even assuming we had gone astray in Bellas Hess,
the “very fact” of Congress’s superior authority in
this realm “g[a]ve us pause and counsel[ed]
withholding our hand.” We postulated that “the
better part of both wisdom and valor [may be] to
respect the judgment of the other branches of the
Government.” The Court thus left it to Congress
“to decide whether, when, and to what extent the
States may burden interstate mail-order concerns
with a duty to collect use taxes.”
This is neither the first, nor the second, but the

third time this Court has been asked whether a
State may obligate sellers with no physical
presence within its borders to collect tax on sales
to residents. Whatever salience the adage “third
time’s a charm” has in daily life, it is a poor guide
to Supreme Court decisionmaking. If stare decisis
applied with special force in Quill, it should be an
even greater impediment to overruling precedent
now, particularly since this Court in Quill “tossed
[the ball] into Congress’s court, for acceptance or
not as that branch elects.”. . .
A good reason to leave these matters to Congress

is that legislators may more directly consider the
competing interests at stake. Unlike this Court,
Congress has the flexibility to address these
questions in a wide variety of ways. As we have
said in other dormant Commerce Clause cases,
Congress “has the capacity to investigate and
analyze facts beyond anything the Judiciary could
match.” . . .
An erroneous decision from this Court may well

have been an unintended factor contributing to
the growth of e-commerce. The Court is of course
correct that the Nation’s economy has changed
dramatically since the time that Bellas Hess and
Quill roamed the earth. I fear the Court today is
compounding its past error by trying to fix it in a
totally different era. The Constitution gives
Congress the power “[t]o regulate Commerce . . .
among the several States.” I would let Congress
decide whether to depart from the physical-
presence rule that has governed this area for half
a century.
Taxing and Spending for the

Protection of Intrastate
Interests
Sometimes the goal of a state taxation policy is not
just to raise revenue. States can create tax policies
to protect intrastate businesses or to promote
intrastate development. When such policies place a
burden on interstate commerce and give an
advantage to intrastate enterprises, constitutional
challenges are common. Tax policies that
discriminate against interstate commerce often
suffer the same fate as the discriminatory commerce
regulation discussed in Chapter 7. The Court takes a
dim view of state laws that place a financial
obligation on interstate commerce that is not equally
placed on intrastate business—no matter if those
obligations take the form of taxes, fees, tariffs,
duties, or similar assessments.
One example is Oregon Waste Systems, Inc. v.

Department of Environmental Quality of Oregon
(1994). In this case Oregon attempted to increase
revenues and protect its environmental resources by
imposing fees on solid waste generated in other
states and transported to Oregon for disposal. The
majority struck down the state’s plan. The two
dissenters, Rehnquist and Blackmun, maintained
that the Court unnecessarily restricted the state’s
taxation power and, in doing so, made it difficult for
Oregon to deal effectively with the growing problem
of solid waste disposal. That these two justices
would be found dissenting together against the rest
of the Court was somewhat unusual. Rehnquist and
Blackmun had very different ideological positions
and regularly found themselves on opposite sides of
controversial issues.
Oregon Waste Systems, Inc. v. Department of

Environmental Quality of Oregon 511 U.S. 93
(1994)
court/511/93.html

Vote: 7 (Ginsburg, Kennedy, O’Connor, Scalia,

Souter, Stevens, Thomas)
2 (Blackmun, Rehnquist)
OPINION OF THE COURT: Thomas

DISSENTING OPINION: Rehnquist
Facts:
Oregon’s Department of Environmental Quality is
in charge of administering the state’s
comprehensive policy for the management,
reduction, and recycling of solid waste. To fund
these activities the state levied various fees on
landfill operators. In 1989 the state legislature
decided to assess an additional surcharge for
disposing of any solid waste generated out of state
and authorized the department to set the
surcharge rate based on the costs to the state of
disposing of the materials. After studying the
problem, the department set the surcharge on out-
of-state waste at $2.25 per ton. The charge for the
disposal of solid waste generated in state was
$0.85 per ton.
Oregon Waste Systems was in the business of

transporting solid waste from Washington State by
barge to landfills in Oregon and as such was
subject to the surcharge on solid waste brought
into the state for disposal. The company
challenged the tax, claiming that the assessment
discriminated against interstate commerce in
violation of the commerce clause. State courts
upheld the Oregon law, concluding that the
surcharge was not a discriminatory tax but a
compensatory fee that was reasonably related to
the cost of the services rendered. Oregon Waste
Systems asked the U.S. Supreme Court to review
that decision.
Arguments:
For the petitioners, Oregon Waste
Systems et al.:
In Chemical Waste Management v. Hunt

(1992), the Court struck down as a violation of
the commerce clause an Alabama law that
taxed the disposal of interstate-generated
waste, but not intrastate waste. The Oregon
fee system is nearly indistinguishable from the
Alabama tax.
Oregon’s discrimination against interstate
commerce on its face clearly violates the
commerce clause.
Oregon cannot save its program by claiming
that the fee is based on the cost of service.
This does not justify discrimination against
interstate waste.
For the respondent, Oregon

Department of Environmental
Quality:
The state has established its fee system based
on the actual cost of disposal. Intrastate and
interstate disposal costs are essentially the
same. The cost of disposing of in-state waste is
subsidized through general state revenues, but
the disposal of out-of-state waste is not
subsidized. This fee structure allows the state
to reduce the dumping fee charged for the
disposal of in-state waste.
The Constitution does not prohibit funding the
disposal of in-state waste by a combination of
general revenues and dumping fees.
Restructuring the fee system by removing the
subsidy and financing the full cost through
dumping fees would have no impact on
The purpose of the state’s policy is not
economic isolation or protectionism. Nor is it
based on the state’s desire to reduce out-of-
state waste as a means of preserving state
natural resources.
Justice Thomas Delivered the Opinion of the

Court.
Two Terms ago, in Chemical Waste Management,

Inc. v. Hunt (1992), we held that the negative
Commerce Clause prohibited Alabama from
imposing a higher fee on the disposal in Alabama
landfills of hazardous waste from other States
than on the disposal of identical waste from
Alabama. In reaching that conclusion, however, we
left open the possibility that such a differential
surcharge might be valid if based on the costs of
disposing of waste from other States. Today, we
must decide whether Oregon’s purportedly cost-
based surcharge on the in-state disposal of solid
waste generated in other States violates the
The Commerce Clause provides that “[t]he
Congress shall have Power . . . [t]o regulate
Commerce . . . among the several States.” Though
phrased as a grant of regulatory power to
Congress, the Clause has long been understood to
have a “negative” aspect that denies the States
the power unjustifiably to discriminate against or
burden the interstate flow of articles of commerce.
The Framers granted Congress plenary authority
over interstate commerce in “the conviction that
in order to succeed, the new Union would have to
avoid the tendencies toward economic
Balkanization that had plagued relations among
the Colonies and later among the States under the
Articles of Confederation.” Hughes v. Oklahoma
(1979). “This principle that our economic unit is
the Nation, which alone has the gamut of powers
necessary to control of the economy, . . . has as its
corollary that the states are not separable
economic units.” H. P. Hood & Sons, Inc. v. Du
Mond (1949).
Consistent with these principles, we have held

that the first step in analyzing any law subject to
judicial scrutiny under the negative Commerce
Clause is to determine whether it “regulates
evenhandedly with only ‘incidental’ effects on
interstate commerce, or discriminates against
interstate commerce.” Hughes. See also Chemical
Waste. As we use the term here, “discrimination”
simply means differential treatment of in-state and
out-of-state economic interests that benefits the
former and burdens the latter. If a restriction on
commerce is discriminatory, it is virtually per se
invalid. . . .
In Chemical Waste, we easily found Alabama’s
surcharge on hazardous waste from other States
to be facially discriminatory because it imposed a
higher fee on the disposal of out-of-state waste
than on the disposal of identical in-state waste. We
deem it equally obvious here that Oregon’s $2.25
per ton surcharge is discriminatory on its face.
The surcharge subjects waste from other States to
a fee almost three times greater than the $0.85
per ton charge imposed on solid in-state waste.
The statutory determinant for which fee applies to
any particular shipment of solid waste to an
Oregon landfill is whether or not the waste was
“generated out-of-state.” It is well-established,
however, that a law is discriminatory if it “‘tax[es]
a transaction or incident more heavily when it
crosses state lines than when it occurs entirely
within the State.’” Chemical Waste.
Respondents argue, and the Oregon Supreme

Court held, that the statutory nexus between the
surcharge and “the [otherwise uncompensated]
costs to the State of Oregon and its political
subdivisions of disposing of solid waste generated
out-of-state,” necessarily precludes a finding that
the surcharge is discriminatory. We find
respondents’ narrow focus on Oregon’s
compensatory aim to be foreclosed by our
precedents. As we reiterated in Chemical Waste,
the purpose of, or justification for, a law has no
bearing on whether it is facially discriminatory.
Consequently, even if the surcharge merely
recoups the costs of disposing of out-of-state
waste in Oregon, the fact remains that the
differential charge favors shippers of Oregon
waste over their counterparts handling waste
generated in other States. In making that
geographic distinction, the surcharge patently
discriminates against interstate commerce.
Because the Oregon surcharge is discriminatory,

the virtually per se rule of invalidity provides the
proper legal standard here. . . . As a result, the
surcharge must be invalidated unless respondents
can “sho[w] that it advances a legitimate local
purpose that cannot be adequately served by
reasonable nondiscriminatory alternatives.” New
Energy Co. of Indiana v. Limbach (1988). Our
cases require that justifications for discriminatory
restrictions on commerce pass the “strictest
scrutiny.” Hughes. The State’s burden of
justification is so heavy that “facial discrimination
by itself may be a fatal defect.” Ibid.
At the outset, we note two justifications that

respondents have not presented. No claim has
been made that the disposal of waste from other
States imposes higher costs on Oregon and its
political subdivisions than the disposal of in-state
waste. Also, respondents have not offered any
safety or health reason unique to nonhazardous
waste from other States for discouraging the flow
of such waste into Oregon. Consequently,
respondents must come forward with other
legitimate reasons to subject waste from other
States to a higher charge than is levied against
waste from Oregon. . . .
Respondents’ principal defense of the higher

surcharge on out-of-state waste is that it is a
“compensatory tax” necessary to make shippers of
such waste pay their “fair share” of the costs
imposed on Oregon by the disposal of their waste
in the State. In Chemical Waste we noted the
possibility that such an argument might justify a
discriminatory surcharge or tax on out-of-state
waste. In making that observation, we implicitly
recognized the settled principle that interstate
commerce may be made to “‘pay its way.’”
Complete Auto Transit, Inc. v. Brady (1977). See
also Maryland [v. Louisiana, 1981]. . . .
To justify a charge on interstate commerce as a

compensatory tax, a State must, as a threshold
matter, “identif[y] . . . the [intrastate tax] burden
for which the State is attempting to compensate.”
Maryland. Once that burden has been identified,
the tax on interstate commerce must be shown
roughly to approximate—but not exceed—the
amount of the tax on intrastate commerce. Finally,
the events on which the interstate and intrastate
taxes are imposed must be “substantially
equivalent”; that is, they must be sufficiently
similar in substance to serve as mutually exclusive
“prox[ies]” for each other. . . .
Although it is often no mean feat to determine

whether a challenged tax is a compensatory tax,
we have little difficulty concluding that the
Oregon surcharge is not such a tax. Oregon does
not impose a specific charge of at least $2.25 per
ton on shippers of waste generated in Oregon, for
which the out-of-state surcharge might be
considered compensatory. In fact, the only
analogous charge on the disposal of Oregon waste
is $0.85 per ton, approximately one-third of the
amount imposed on waste from other States.
Respondents’ failure to identify a specific charge
on intrastate commerce equal to or exceeding the
surcharge is fatal to their claim. . . .
Respondents’ final argument is that Oregon has an

interest in spreading the costs of the in-state
disposal of Oregon waste to all Oregonians. That
is, because all citizens of Oregon benefit from the
proper in-state disposal of waste from Oregon,
respondents claim it is only proper for Oregon to
require them to bear more of the costs of
disposing of such waste in the State through a
higher general tax burden. At the same time,
however, Oregon citizens should not be required
to bear the costs of disposing of out-of-state waste,
respondents claim. The necessary result of that
limited cost-shifting is to require shippers of out-
of-state waste to bear the full costs of in-state
disposal, but to permit shippers of Oregon waste
to bear less than the full cost.
We fail to perceive any distinction between

respondents’ contention and a claim that the State
has an interest in reducing the costs of handling
in-state waste. Our cases condemn as illegitimate,
however, any governmental interest that is not
“unrelated to economic protectionism,” and
regulating interstate commerce in such a way as
to give those who handle domestic articles of
commerce a cost advantage over their competitors
handling similar items produced elsewhere
constitutes such protectionism. To give controlling
effect to respondents’ characterization of Oregon’s
tax scheme as seemingly benign cost-spreading
would require us to overlook the fact that the
scheme necessarily incorporates a protectionist
objective as well. . . .
Respondents counter that if Oregon is engaged in
any form of protectionism, it is “resource
protectionism,” not economic protectionism. It is
true that by discouraging the flow of out-of-state
waste into Oregon landfills, the higher surcharge
on waste from other States conserves more space
in those landfills for waste generated in Oregon.
Recharacterizing the surcharge as resource
protectionism hardly advances respondents’
cause, however. . . . As we held more than a
century ago, “if the State, under the guise of
exerting its police powers, should [impose a
burden] . . . applicable solely to articles [of
commerce] . . . produced or manufactured in other
States, the courts would find no difficulty in
holding such legislation to be in conflict with the
Constitution of the United States.” Guy v.
Baltimore (1880). . . .
We recognize that the States have broad

discretion to configure their systems of taxation as
they deem appropriate. All we intimate here is
that their discretion in this regard, as in all others,
is bounded by any relevant limitations of the
Federal Constitution, in this case the negative
Commerce Clause. Because respondents have
offered no legitimate reason to subject waste
generated in other States to a discriminatory
surcharge approximately three times as high as
that imposed on waste generated in Oregon, the
surcharge is facially invalid under the negative
Commerce Clause. Accordingly, the judgment of
the Oregon Supreme Court is reversed, and the
cases are remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
CHIEF JUSTICE REHNQUIST,

with whom JUSTICE
BLACKMUN joins, dissenting.
Landfill space evaporates as solid waste
accumulates. State and local governments expend
financial and political capital to develop trash
control systems that are efficient, lawful, and
protective of the environment. The State of
Oregon responsibly attempted to address its solid
waste disposal problem through enactment of a
comprehensive regulatory scheme for the
management, disposal, reduction, and recycling of
solid waste. For this Oregon should be applauded.
The regulatory scheme included a fee charged on
out-of-state solid waste. The Oregon Legislature
directed the Commission to determine the
appropriate surcharge “based on the costs . . . of
disposing of solid waste generated out-of-state.”
The Commission arrived at a surcharge of $2.25
per ton, compared to the $0.85 per ton charged on
in-state solid waste. The surcharge works out to
an increase of about $0.14 per week for the
typical out-of-state solid waste producer. This
seems a small price to pay for the right to deposit
your “garbage, rubbish, refuse . . . ; sewage
sludge, septic tank and cesspool pumpings or
other sludge; . . . manure, . . . dead animals, [and]
infectious waste” on your neighbors.
Nearly 20 years ago, we held that a State cannot

ban all out-of-state waste disposal in protecting
themselves from hazardous or noxious materials
brought across the State’s borders. Philadelphia v.
New Jersey (1978). Two Terms ago in Chemical
Waste Management, Inc. v. Hunt (1992), in
striking down the State of Alabama’s $72 per ton
fee on the disposal of out-of-state hazardous
waste, the Court left open the possibility that such
a fee could be valid if based on the costs of
disposing of waste from other States. Once again,
however, as in Philadelphia and Chemical Waste
Management, the Court further cranks the
dormant Commerce Clause ratchet against the
States by striking down such cost-based fees, and
by so doing ties the hands of the States in
addressing the vexing national problem of solid
waste disposal. . . .
The State of Oregon is not prohibiting the export

of solid waste from neighboring States; it is only
asking that those neighbors pay their fair share
for the use of Oregon landfill sites. I see nothing in
the Commerce Clause that compels less densely
populated States to serve as the low-cost dumping
grounds for their neighbors, suffering the
attendant risks that solid waste landfills present.
The Court, deciding otherwise, further limits the
dwindling options available to States as they
contend with the environmental, health, safety,
and political challenges posed by the problem of
solid waste disposal in modern society.
For the foregoing reasons, I respectfully dissent.
Despite the Court’s position that discriminatory

taxation is unconstitutional, states continue to
search for systems that might survive legal
challenge. In West Lynn Creamery v. Healy (1994),
the Court reviewed a Massachusetts law that
required a “premium” to be paid on all sales of milk
products. The assessment was imposed equally on
both milk produced in Massachusetts and milk
produced out of state. The state used the revenues
generated to provide subsidies for Massachusetts
farmers. Here the goal of the state was not to gather
general revenues; rather, the goal was to promote
the interests of Massachusetts dairy farmers.
The Court’s majority, again with Rehnquist and

Blackmun in dissent, struck down the Massachusetts
plan as using the power to tax and spend in a
manner that discriminated against interstate
commerce. In effect, this was an old-fashioned
protective tariff presented in a redesigned package.
The purpose of the plan was to give in-state farmers
a significant edge over out-of-state farmers. As such,
the plan violated the Constitution’s prohibition
against state policies that advantage intrastate
commerce and discriminate against interstate
concerns.
Similarly, in South Central Bell Telephone v.

Alabama (1999), the justices struck down an
Alabama law that imposed a franchise tax on each
corporation doing business in the state. The tax was
based on the company’s capital, but in-state
businesses and out-of-state corporations were made
to use different formulas to calculate this figure,
which, as you might expect, led to higher taxes on
out-of-state businesses.
Although the Court has developed relatively clear

guidelines on federal and state taxing and spending
powers, new disputes continue to demand
resolution. It is not likely that this tendency will
change in the near future. Policies that impose taxes
and distribute funds are among the most politically
and emotionally charged of all government
programs. Not only do they give rise to questions of
constitutional philosophy, but they also affect
people’s pocketbooks. It is not surprising, therefore,
that when government uses its powers to tax and
spend, legal challenges are common.
Annotated Readings
A number of good works focus on the history and
development of tax law and policy. These include
Gerald Carson, “The Income Tax and How It Grew,”
American Heritage, December 1973, 4–7, 79–88;
Erika Lunder and Jennifer Staman, NFIB v. Sebelius:
Constitutionality of the Individual Mandate
(Washington, DC: Congressional Research Service,
2012); Ann Mumford, Taxing Culture: Toward a
Theory of Tax Collection Law (Burlington, VT:
Ashgate, 2002); Nathaniel Persily, Gillian E. Metzger,
and Trevor W. Morrison (eds.), The Health Care
Case: The Supreme Court’s Decision and Its
Implications (New York: Oxford University Press,
2013); Sheldon D. Pollack, War, Revenue, and State
Building: Financing the Development of the
American State (Ithaca, NY: Cornell University
Press, 2009); Steven R. Weisman, The Great Tax
Wars: Lincoln to Wilson—The Fierce Battles over
Money and Power (New York: Simon & Schuster,
2001); John F. Witte, The Politics and Development of
the Federal Income Tax (Madison: University of
Wisconsin Press, 1985); and Joseph F. Zimmerman,
The Silence of Congress: State Taxation of Interstate
Commerce (Albany: State University of New York
Press, 2007).
Other studies focus on monetary and spending

policy, such as Edward S. Corwin, “The Spending
Power of Congress—Apropos the Maternity Act,”
Harvard Law Review 36 (1923): 548–582; Gerald T.
Dunne, Monetary Decisions of the Supreme Court
(New Brunswick, NJ: Rutgers University Press,
1960); Robert M. Howard, Getting a Poor Return:
Courts, Justice, and Taxes (Albany: State University
of New York Press, 2009); James Willard Hurst, A
Legal History of Money in the United States, 1774–
1970 (Lincoln: University of Nebraska Press, 1973);
and Dennis S. Ippolito, Deficit, Debt, and the New
Politics of Tax Policy (New York: Cambridge
Part Four Economic Liberties
Economic Liberties and Individual Rights
9. THE CONTRACT CLAUSE

10. ECONOMIC SUBSTANTIVE DUE PROCESS
11. THE TAKINGS CLAUSE
Economic Liberties and
Individual Rights
IF ASKED what we Americans admire about the

United States, many of us would answer that we
value our guaranteed freedoms of speech, press, and
religion. But when asked to make political decisions,
such as choosing elected officials, we may put other
considerations ahead of these cherished freedoms.
As is often remarked, people tend to vote their
pocketbooks. Americans might not admit that the
state of the economy drives their behavior, but it is
clearly one of the most important determinants in
choosing the nation’s leaders. That we hold
economic well-being as a high priority is not
surprising. In Part III we saw that economic issues—
commerce, taxing, and spending—have been major
sources of friction between the federal government
and the states from the very beginning of U.S.
history.
Economic questions, however, do not always present

themselves as disputes between the national
government and the states. Quite the contrary. The
Supreme Court often has heard constitutional
challenges in which individuals claim that their
personal economic liberties have been violated by
government actions. In such cases the justices must
determine how much authority federal and state
governments have to seize private property, to alter
freely made contracts, and to restrict private
employment agreements as to wages and hours.
Seen in this way, a strong relationship exists
between civil liberties, such as the freedom of
speech, and economic liberties, such as the right to
private property. Indeed, both provoke the same
fundamental question: To what extent may
government enact legislation that infringes on
personal rights? Both also involve the same
perennial conflict between the interests of the
individual and those of the society.
Even so, most people, including elected officials and

even Supreme Court justices, tend to separate
economic liberties from other civil liberties. We
consider the right to express our views as
significantly different from the right to conduct
business. The framers, however, viewed both as
“vested rights”—rights so fundamental to an
individual that they cannot be infringed on by
government control; these rights were very much on
the minds of the men who gathered to write the
Constitution in 1787. According to James Madison,
one of the framers’ most important objectives as
they gathered in Philadelphia in 1787 was to provide
“more effectively for the security of private rights
and the steady dispensement of justice within the
states. Interference with these were the evils which
had, more perhaps than anything else, produced this
convention.”
But, as Madison’s comment implies, the framers’
conception of liberties and what interfered with their
exercise was somewhat different from ours. They
equated liberty with the protection of private
property, and in their experience the states, not the
national government, posed the greater threat to
property rights. Given the economic chaos that
existed under the Articles of Confederation, we can
easily understand the founders’ concerns. They
believed that the states had “crippled” both the
central government and the economy, and they
wanted to create a national government strong
enough to protect economic liberty from aggressive
state governments. We must also keep in mind that
many who attended the convention were wealthy
men who wanted to keep the property they had
accumulated. In short, the framers were concerned
about the nonpropertied masses taking control of
state legislatures and using their numerical
advantage to promote legislation that would place
excessive taxes on business, abrogate contracts, and
so forth. Indeed, in an important (albeit
controversial) work, An Economic Interpretation of
the Constitution of the United States, first published
in 1913, historian Charles A. Beard depicted the
founders as self-serving—even greedy—men who
viewed the Constitution as a vehicle for the
protection of their own property interests.
Other analysts have taken issue with Beard’s

interpretation. Some contend that we cannot
necessarily equate modern definitions of property
with those the framers used; that is, the property
interests they sought to protect were probably more
encompassing than those we envision today. We
might consider property as something tangible or of
clear monetary value, but to at least some of the
framers, property was a catchall term for many
individual liberties that may or may not have been
related to what modern Americans think of as
economic activity.
To protect these paramount property rights, however

conceptualized, the framers inserted several
provisions into the Constitution. An important
provision, which we examine in Chapter 9, is the
contract clause. Under Article I, Section 10, “No
State shall . . . pass any . . . Law impairing the
Obligation of Contracts.” To understand the meaning
of the clause, we must consider its language within
the context of the day. As one book on constitutional
interpretation suggests,
For the generation of 1787–91, property was

probably a natural right, though the
constitutional text did not so label it. And,
because the right to property included rights to
use and increase property, that basic right
included a cognate right to contract with other
property holders. Thus did the right to contract
borrow a measure of moral status from the
broader right in which it originated: the
obligation to keep one’s contracts was a duty
flowing from the natural right to property.1
1 Walter F. Murphy, James E. Fleming, and William

Harris II, American Constitutional Interpretation,
2nd ed. (Mineola, NY: Foundation Press, 1995),
1073.
If the contract clause was one of the ways the

framers sought to protect property interests against
the “evils” of government interference, it worked, at
least initially. For the Marshall Court, the contract
clause was an effective vehicle for promoting federal
supremacy and economic growth. That Court read
Article I, Section 10, to prohibit state action that
infringed on property rights and impeded economic
development.
But this interpretation did not endure. With the end

of the Marshall Court and the ascendancy of the
Taney Court in the mid-1830s, use of the contract
clause as a vehicle to protect property interests
waned. We consider fully why that occurred in
Chapter 9; for now, it is important to note that the
“death” of the contract clause did not mean that
courts were no longer interested in protecting
economic liberties. They simply turned to another
section of the Constitution to do so. The Fourteenth
Amendment’s due process clause says that no state
shall “deprive any person of life, liberty, or property,
without due process of law.” Under a doctrine called
substantive due process, which we review in Chapter
10, between the 1890s and 1930s the Supreme
Court used the Fourteenth Amendment to prohibit
states from interfering with “liberty” interests. For
example, the Court struck down legislation
mandating maximum work hours on the ground that
such legislation interfered with the rights of
employers to enter into contracts with their
employees. Like the Court’s interpretation of the
contract clause, this treatment of the Fourteenth
Amendment eventually fell into disuse. In Chapter 10
we examine the reasons for its decline.
More recently, the Court has taken a serious look at

yet another provision of the Constitution designed to
protect property interests—the takings clause of the
Fifth Amendment. Here the framers endeavored to
protect private property from government seizure by
inserting the following words into the Constitution:
“nor shall private property be taken for public use,
without just compensation.” The founders
recognized that the government occasionally would
need the power to confiscate property in order to
construct roads or erect government buildings, but
they limited such seizures to projects having a public
purpose, and required that the affected property
owners be compensated for their losses. As
described in Chapter 11, the Court’s interpretation
of the takings clause, like its treatment of the
contract and due process clauses, has undergone a
number of twists and turns. The heyday of the
contract clause and economic substantive due
process has long since passed, but the takings clause
remains a vibrant legal and political issue. Some
members of the Roberts Court view the takings
clause as a significant vehicle for protecting
property rights.
So far these justices have had only limited success—

a matter we consider in more detail in Chapter 11.
Here, we simply note that the current Court seems
to be taking a greater interest in all kinds of
economic issues than did its immediate
predecessors. In recent years about one-fifth of the
Court’s docket has involved economic issues of
various kinds. This figure pales in comparison to the
numbers from the 1930s, a period during which the
majority of the cases the Court accepted for review
had economic dimensions, or even the 1800s, when
fully one-third of the business of the Court involved
economic issues. Nevertheless, the proportion of the
current Court’s docket devoted to economic
questions is substantial and at odds with the popular
notion that the contemporary Court is almost
exclusively focused on the resolution of civil liberties
and criminal justice disputes.
The number of economic cases on the Court’s

agenda is important as an indicator of the role the
Court plays in American society.2 When the justices
were deciding large numbers of economic cases, as
they did for the first 150 years of the Court’s history,
it is not surprising that they exerted great influence
in that area and lesser influence in the areas of civil
liberties, civil rights, and criminal justice. Moreover,
if today’s Court is seeking to play a greater role in
the economic realm, it will be forced to confront the
same fundamental issue that bedeviled its
predecessors: the complex relationship between
“vested rights” and “community interests.” Although
—as we have suggested—many of the founders were
concerned about individual liberty (such as the
protection of private property rights), we now know
that in a mature democratic society the pursuit of
such individual interests may impinge on the
collective good. When a state enacts a law setting a
minimum wage, that statute affects the individual
liberty of employers: it would be in their best
interest, economically speaking, to pay their
employees as little as possible. As a result, they may
argue that minimum wage laws violate their
constitutional guarantees. But is there another
interest at stake? What are the results of paying
workers a substandard wage? Does the state have a
responsibility to enact legislation for the “health,
safety, and welfare” of all its citizens?
2 See Richard Pacelle Jr., The Transformation of the

Supreme Court’s Agenda (Boulder, CO: Westview
Press, 1991); and Pacelle, “The Dynamics and
Determinants of Agenda Change in the Rehnquist
Court,” in Contemplating Courts, ed. Lee Epstein
It is the clash between these two interests—

individual liberty (vested rights) and the state
(community interests)—that has been a primary
cause of the Court’s involvement in this area.
Because that conflict is unlikely to change, our
discussion of these issues will center on the
approaches different Courts have taken to balance
them. As we shall see, during some periods the
Court has exalted liberty interests above those of the
community, and at other times it has taken precisely
the opposite approach. As you read the chapters that
follow, think about the political, legal, and historical
factors that have contributed to these varying
approaches to economic liberties.
Chapter Nine The Contract
Clause
SUPPOSE that some years ago a friend of yours

accepted a position with a large corporation. One of
the reasons she took this particular job was that the
company offered an attractive retirement savings
plan as a fringe benefit. Under the terms of the
savings plan contract, she regularly placed a portion
of her salary into the fund, and the company
matched her contributions. Money deposited in the
fund belonged to the individual savers, and the
company had no authority to use the funds for any
corporate purpose. Over the years, your friend’s
savings account grew steadily. Then, in a national
recession, the company’s fortunes reversed, and it,
along with many others, faced bankruptcy. The state
rushed to relieve the troubled businesses by passing
a law that allowed them unilaterally to use the assets
in employee savings plans to finance operations until
the economy regained its strength. The company
took advantage of this statute, but after it spent all
of the savings plan funds, the company still went
bankrupt.
This story raises some basic questions: How can the

state pass a law that releases a company from its
contractual obligations? With the state granting
permission, the company stripped the employees of
their savings. Why would anyone participate in any
investment or commercial activity without some
assurance that a state will not intervene and change
the provisions of contractual agreements or nullify
them altogether?
If you were upset upon learning the fate of your

friend’s retirement funds, your reaction would be
understandable. One of the hallmarks of a society
that values commercial activity is the right to enter
into legally binding contracts. It is hard to imagine a
market-based economy that does not recognize and
protect such agreements. In most instances, we
expect the government to enforce contracts and not
authorize parties to break them.
The individuals who drafted the Constitution felt

much the same way. Disturbed by the actions of state
governments in the economic upheaval that followed
the Revolution, the delegates to the Constitutional
Convention moved to block state interference with
contractual obligations. They did this by drafting the
contract clause, one of the most important
provisions of the Constitution during the nation’s
formative years.
The Framers and the Contract

Clause
It might be difficult to find a group of people more
supportive of the right to enter into binding
agreements than the delegates to the Constitutional
Convention. For the most part, these individuals
represented the propertied classes, and they
assembled in Philadelphia at a time of economic
turmoil. Many of them feared that as the states
coped with their economic problems they might
suspend the obligation to honor contracts.
Following the Revolutionary War the economy was

very unstable, and the government under the
Articles of Confederation was powerless to correct
the situation. Hardest hit were small farmers, many
of whom had taken out large loans they could not
repay. When creditors started foreclosing on real
estate and debtors were jailed for failing to pay,
farmers and others faced with unmanageable
obligations began to agitate for relief. Several states
responded by passing laws to help them. Among
these acts were bankruptcy laws that erased certain
debt obligations or extended the time to pay—legal
obstacles that blocked creditors from asserting their
contractual rights against their debtors. In addition,
state currencies of dubious value were declared
legal tender to satisfy debt obligations.
These policies hurt the creditors, many of whom

were wealthy landowners. In response, they called
for strengthening the national government to deal
with economic problems and for a ban on states
nullifying contractual obligations. This issue was
among the more important factors prompting
Congress to convene a convention for the purpose of
recommending changes to the Articles of
Confederation. Once assembled, the delegates, as
we know, went much farther than originally
authorized and created the Constitution of the
United States.
The document drafted in Philadelphia clearly

reflected the economic interests of the delegates.
Among the provisions they wrote was a protection of
contracts against state government infringement.
Article I, Section 10, declares in absolute terms: “No
State shall . . . pass any . . . Law impairing the
Obligation of Contracts.”
The eighteenth century’s understanding of the term

contract was much the same as today’s. A contract is
an agreement voluntarily entered into by two or
more parties in which a promise is made and
something of value is given or pledged. Contractual
agreements are made in almost every commercial
transaction, such as a mining company’s promise to
deliver a quantity of coal to a steel mill for a stated
sum of money or a lawyer’s promise to represent a
client at a specified rate of compensation.
For the framers the right to enter into contracts was

an important freedom closely tied to the right to
private property. The ownership of private property
implies the right to buy, sell, divide, occupy, lease,
and use it, but one cannot effectively exercise these
various property rights without the ability to enter
into legally binding arrangements with others. In
commercial transactions the parties rely on each
other to carry out the contractual provisions. During
the nation’s formative years, those who failed to live
up to contractual promises were dealt with harshly.
In the minds of the propertied classes of the
eighteenth century, this was how it should be, and
the government should not be allowed to intervene
in such private arrangements.
Evidence from the convention indicates that the

framers adopted the contract clause as a means of
protecting agreements between private parties from
state interference. At that time, however, contracts
also were a means of carrying out public policy.
Because governments then were much more limited
than they are today, the states regularly entered into
contracts with individuals or corporations to carry
out government policy or to distribute government
benefits. These state actions included land grants,
commercial monopolies, and licenses to construct
roads and bridges. An individual who entered into a
contractual agreement with the state expected it to
live up to its obligations and not abrogate the
arrangement or unilaterally change the terms. In
spite of what the framers might have intended, the
contract clause is generally worded and therefore
offers protection both to contracts among private
parties and to agreements between private parties
and the government.
Importantly, the framers drafted the contract clause

to apply only to the states and not to the national
government. They had two reasons for targeting the
states in this way. First, the framers had recent
experience with states passing laws that nullified
contractual provisions, thus they saw the states as a
threat to the importance of contractual relationships.
Second, the framers envisioned the state
governments to be the primary regulators of
economic activities.
The contract clause was not a major point of

controversy at the convention, although some
delegates suggested language less absolutist in tone.
Rather, the records show that the delegates
accepted its wisdom with little debate. The clause
was one of several prohibitions the framers imposed
on state economic regulation: states also could no
longer coin money, issue bills of credit, create tender
for payment of debts, or tax and regulate certain
forms of interstate or foreign commerce.
Similarly, the contract clause was not a point of

significant controversy during the debates over
ratification of the Constitution. In Federalist No. 7,
Alexander Hamilton justified the prohibition against
state impairment of contract obligations by claiming,
“Laws in violation of private contracts . . . may be
considered as another probable source of hostility.”
And James Madison in Federalist No. 44 declared
that “laws impairing the obligation of contracts are
contrary to the first principles of the social compact
and to every principle of sound legislation.”
In spite of this lack of attention at the drafting and
ratification stages, the contract clause became an
important legal force in the early years of the
nation’s development. As political majorities
changed from election to election, it was not unusual
for state legislatures to enter into contracts with
private parties and then to break or change those
agreements in subsequent legislative sessions. In
addition, state governments often would adopt
policies that ran contrary to contracts among private
individuals. When such actions occurred, injured
parties would challenge the states in court. Because
the states were not obliged to follow principles of
due process of law until after ratification of the
Fourteenth Amendment in 1868, the contract clause
was the primary constitutional ground on which
state policies were challenged. As a result, it was
one of the most litigated constitutional provisions in
the first decades of U.S. history. One study concluded
that roughly 40 percent of all Supreme Court cases
prior to 1889 that attacked the validity of state
legislation did so on the basis of contract clause
arguments.1
1 Benjamin F. Wright, The Contract Clause of the

Constitution (Cambridge, MA: Harvard University
Press, 1938).
John Marshall and the Contract

Clause
The importance of the contract clause increased
dramatically through the Marshall Court’s
interpretations of its meaning. Chief Justice John
Marshall had strong views on private property,
economic development, and the role of the federal
government. He consistently supported aggressive
policies that would result in vigorous economic
expansion. Underlying this position was a philosophy
that elevated private property to the level of a
natural right that government had little authority to
limit. Furthermore, Marshall firmly believed that the
nation’s interests could be served best if the federal
government, rather than the states, became the
primary agent for economic policy making. As we
have seen in the areas of federalism and commerce,
Marshall could be counted on to uphold actions
taken by the federal government and to favor it over
competing state interests. Marshall’s ideology
predisposed him to champion the contract clause,
which he viewed as essential to the right to private
property. Moreover, the limitations the clause placed
on state regulatory powers appealed to his views on
federalism. Given Marshall’s domination of the Court
for more than three decades, it is not surprising that
the contract clause achieved an elevated status
during those years.
Establishing the Importance of

the Contract Clause
The first major Supreme Court decision to consider
the contract clause was Fletcher v. Peck (1810),
which asked whether a state could nullify a public
contract. The suit flowed from one of the most
notorious incidents of corruption and bribery in the
nation’s early history—the Yazoo River land fraud. In
this litigation the beneficiaries of the scheme sought
to use the contract clause to protect their gains.
Chief Justice Marshall was caught in a bind. To give

force to the contract clause would be to rule in favor
of those who profited from state government
corruption. To rule against the unpopular fraudulent
transactions would be to hand down a precedent
significantly curtailing the meaning of the provision.
Which option did Marshall choose?
Fletcher v. Peck 10 U.S. (6 Cr.) 87 (1810)
court/10/87.html
Vote: 5 (Johnson, Livingston, Marshall, Todd,

Washington)

NOT PARTICIPATING: Chase, Cushing
Facts:
This dispute had its roots in the 1795 session of
the Georgia legislature. Clearly motivated by
wholesale bribery, the legislators sold about 35
million acres of public lands to several land
companies at ridiculously low prices. The territory
in question, known as the “Yazoo lands” after one
of the major rivers that passes through it,
encompassed most of what is now Mississippi and
Alabama. Some of the nation’s most prominent
public figures, including some members of
Congress, supported this transaction or invested
in it. The citizens of Georgia were outraged by the
sale and turned out most of the legislators in the
next election. In 1796 the newly elected
legislature promptly rescinded the sales contract
and moved to repossess the land. Unfortunately,
by this time the land companies had sold
numerous parcels to third-party investors and
settlers. A massive and complicated set of legal
actions ensued to determine ownership of the
disputed lands. Attempts to negotiate a settlement
proved unsuccessful. Even the president, Thomas
Jefferson, was drawn into the controversy as he
tried to work out a compromise settlement that
would satisfy the state of Georgia as well as the
investors.
Fletcher v. Peck was a lawsuit filed to obtain a

judicial determination of the ownership question.
John Peck bought 600,000 acres of Yazoo land
from James Gunn, one of the original buyers. Peck
in turn sold 15,000 acres to land speculator
Robert Fletcher. The sale was part of a carefully
designed strategy between Peck and Fletcher to
test the constitutionality of the Georgia repeal
statute. Both ultimately would profit if the sales
agreements were upheld. After the sale was
completed, Fletcher sued Peck for return of the
purchase price, claiming that Peck had sold
Fletcher a parcel of land for which he did not hold
valid title. The real issue, however, rested squarely
on the meaning of the contract clause: May a state
that has entered into a valid contract later rescind
that contract?
John Quincy Adams (who would become the sixth

president of the United States), Joseph Story (who
would become the youngest person ever appointed
to the Supreme Court), and Robert Goodloe
Harper (who was a former South Carolina
congressman) represented Peck, who had
purchased the land and sold it to Fletcher. They
argued that Peck held valid title to the property
because Georgia constitutionally could not
abrogate the original sales contracts. Fletcher’s
case was handled by Luther Martin, who had been
a delegate to the Constitutional Convention but
later opposed ratification. According to historical
accounts, Martin would often show up in court
drunk. His rather ineffective performance, some
argue, is further evidence that both sides wanted
Peck’s position to prevail.
Arguments:
For the plaintiff in error, Robert
Fletcher:
The state of Georgia had no right to sell the

lands in the first place. The western lands had
been uncoupled from the colonies. They
belonged not to the states but to the United
States or to the Indians.
Fraud and bribery influenced passage of the
1795 law that authorized the land sale, and
therefore the sale is nullified.
The state legislature properly rescinded the
sale in 1796 and reclaimed ownership of the
land, invalidating any subsequent sales.
For the defendant in error, John

Peck:
The state of Georgia was empowered to sell
the land in question.
Even if passage of the law authorizing the sale
of the lands was influenced by bribery and the
grossest corruption, the law is still valid and
cannot be disregarded by the judiciary.
The state of Georgia is forbidden by the U.S.
Constitution to pass any law impairing the
obligation of contracts. A grant is a contract
that once executed cannot be revoked.
The parties now before the Court are innocent
of fraud. They were bona fide purchasers of the
land. They cannot be affected by any fraud
that might have been committed by others.
[Mr. Chief Justice Marshall] Delivered the

The importance and the difficulty of the questions,

presented by these pleadings, are deeply felt by
the court.
The lands in controversy vested absolutely in

James Gunn and others, the original grantees, by
the conveyance of the governor, made in
pursuance of an act of assembly to which the
legislature was fully competent. Being thus in full
possession of the legal estate, they, for a valuable
consideration, conveyed portions of the land to
those who were willing to purchase. If the original
transaction was infected with fraud, these
purchasers did not participate in it, and had no
notice of it. They were innocent. Yet the
legislature of Georgia has involved them in the
fate of the first parties to the transaction, and, if
the act be valid, has annihilated their rights also. .
..
If a suit be brought to set aside a conveyance

obtained by fraud, and the fraud be clearly
proved, the conveyance will be set aside, as
between the parties; but the rights of third
persons, who are purchasers without notice, for a
valuable consideration, cannot be disregarded.
Titles, which according to every legal test, are
perfect, are acquired with that confidence which
is inspired by the opinion that the purchaser is
safe. If there be any concealed defect, arising from
the conduct of those who had held the property
long before he acquired it, of which he had no
notice, that concealed defect cannot be set up
against him. He has paid the money for a title
good at law, he is innocent, whatever may be the
guilt of others, and equity will not subject him to
the penalties attached to that guilt. All titles would
be insecure, and the intercourse between man and
man would be very seriously obstructed if this
principle be overturned. . . .
If the legislature felt itself absolved from those

rules of property which are common to all the
citizens of the United States, and from those
principles of equity which are acknowledged in all
our courts, its act is to be supported by its power
alone, and the same power may devest any other
individual of his lands, if it shall be the will of the
legislature so to exert it. . . .
Is the power of the legislature competent to the

annihilation of such title, and to a resumption of
the property thus held?
The principle asserted is, that one legislature is

competent to repeal any act which a former
legislature was competent to pass; and that one
legislature cannot abridge the powers of a
succeeding legislature.
The correctness of this principle, so far as

respects general legislation, can never be
controverted. But, if an act be done under a law, a
succeeding legislature cannot undo it. The past
cannot be recalled by the most absolute power.
Conveyances have been made, those conveyances
have vested legal estates, and, if those estates
may be seized by the sovereign authority, still, that
they originally vested is a fact, and cannot cease
to be a fact.
When, then, a law is in its nature a contract, when

absolute rights have vested under that contract, a
repeal of the law cannot devest those rights; and
the act of annulling them, if legitimate, is
rendered so by a power applicable to the case of
every individual in the community.
It may well be doubted whether the nature of

society and of government does not prescribe
some limits to the legislative power; and, if any be
prescribed, where are they to be found, if the
property of an individual, fairly and honestly
acquired, may be seized without compensation.
To the legislature all legislative power is granted;

but the question, whether the act of transferring
the property of an individual to the public, be in
the nature of the legislative power, is well worthy
of serious reflection.
It is the peculiar province of the legislature to

prescribe general rules for the government of
society; the application of those rules to
individuals in society would seem to be the duty of
other departments. How far the power of giving
the law may involve every other power, in cases
where the constitution is silent, never has been,
and perhaps never can be, definitely stated.
The validity of this rescinding act, then, might well

be doubted, were Georgia a single sovereign
power. But Georgia cannot be viewed as a single,
unconnected, sovereign power, on whose
legislature no other restrictions are imposed than
may be found in its own constitution. She is a part
of a large empire; she is a member of the
American union; and that union has a constitution
the supremacy of which all acknowledge, and
which imposes limits to the legislature of the
several states, which none claim a right to pass.
The constitution of the United States declares that
no state shall pass any bill of attainder, ex post
facto law, or law impairing the obligation of
contracts.
Does the case now under consideration come

within this prohibitory section of the constitution?
In considering this very interesting question, we

immediately ask ourselves what is a contract? Is a
grant a contract?
A contract is a compact between two or more

parties, and is either executory or executed. An
executory contract is one in which a party binds
himself to do, or not to do, a particular thing; such
was the law under which the conveyance was
made by the governor. A contract executed is one
in which the object of contract is performed; and
this, says Blackstone, differs in nothing from a
grant. The contract between Georgia and the
purchasers was executed by the grant. A contract
executed, as well as one which is executory,
contains obligations binding on the parties. A
grant, in its own nature, amounts to an
extinguishment of the right of the grantor, and
implies a contract not to reassert that right. A
party is, therefore, always estopped by his own
grant.
Since, then, in fact, a grant is a contract executed,

the obligation of which still continues, and since
the constitution uses the general term contract,
without distinguishing between those which are
executory and those which are executed, it must
be construed to comprehend the latter as well as
the former . . .
If, under a fair construction [of] the constitution,

grants are comprehended under the term
contracts, is a grant from the state excluded from
the operation of the provision? Is the clause to be
considered as inhibiting the state from impairing
the obligation of contracts between two
individuals, but as excluding from that inhibition
contracts made with itself?
The words themselves contain no such distinction.

They are general, and are applicable to contracts
of every description. If contracts made with the
state are to be exempted from their operation, the
exception must arise from the character of the
contracting party, not from the words which are
employed.
Whatever respect might have been felt for the

state sovereignties, it is not to be disguised that
the framers of the constitution viewed, with some
apprehension, the violent acts which might grow
out of the feelings of the moment; and that the
people of the United States, in adopting that
instrument, have manifested a determination to
shield themselves and their property from the
effects of those sudden and strong passions to
which men are exposed. The restrictions on the
legislative power of the states are obviously
founded in this sentiment; and the constitution of
the United States contains what may be deemed a
bill of rights for the people of each state.
No state shall pass any bill of attainder, ex post
facto law, or law impairing the obligation of
contracts.
A bill of attainder may affect the life of an

individual, or may confiscate his property, or may
do both.
In this form the power of the legislature over the

lives and fortunes of individuals is expressly
restrained. What motive, then, for implying, in
words which import a general prohibition to
impair the obligation of contracts, an exception in
favour of the right to impair the obligation of
those contracts into which the state may enter?
The state legislatures can pass no ex post facto

law. An ex post facto law is one which renders an
act punishable in a manner in which it was not
punishable when it was committed. Such a law
may inflict penalties on the person, or may inflict
pecuniary penalties which swell the public
treasury. The legislature is then prohibited from
passing a law by which a man’s estate, or any part
of it, shall be seized for a crime which was not
declared, by some previous law, to render him
liable to that punishment. Why, then, should
violence be done to the natural meaning of words
for the purpose of leaving to the legislature the
power of seizing, for public use, the estate of an
individual in the form of a law annulling the title
by which he holds that estate? The court can
perceive no sufficient grounds for making this
distinction. This rescinding act would have the
effect of an ex post facto law. It forfeits the estate
of Fletcher for a crime not committed by himself,
but by those from whom he purchased. This
cannot be effected in the form of an ex post facto
law, or bill of attainder; why, then, is it allowable
in the form of a law annulling the original grant?
The argument in favour of presuming an intention

to except a case, not excepted by the words of the
constitution, is susceptible of some illustration
from a principle originally ingrafted in that
instrument, though no longer a part of it. The
constitution, as passed, gave the courts of the
United States jurisdiction in suits brought against
individual states. A state, then, which violated its
own contract was suable in the courts of the
United States for that violation. Would it have
been a defence in such a suit to say that the state
had passed a law absolving itself from the
contract? It is scarcely to be conceived that such a
defence could be set up. And yet, if a state is
neither restrained by the general principles of our
political institutions, nor by the words of the
constitution, from impairing the obligation of its
own contracts, such a defence would be a valid
one. This feature is no longer found in the
constitution; but it aids in the construction of
those clauses with which it was originally
associated.
It is, then, the unanimous opinion of the court,

that, in this case, the estate having passed into the
hands of a purchaser for a valuable consideration,
without notice, the state of Georgia was
restrained, either by general principles which are
common to our free institutions, or by the
particular provisions of the constitution of the
United States, from passing a law whereby the
estate of the plaintiff in the premises so purchased
could be constitutionally and legally impaired and
rendered null and void.
Although Fletcher v. Peck did not fully settle the

Yazoo lands controversy (see Box 9-1), Marshall’s
opinion breathed considerable life into the contract
clause. While acknowledging that the original
transactions were based on bribery and corruption,
Marshall concluded that such matters are beyond
the power of the courts to control. He concentrated
instead on whether a state could lawfully rescind a
previously passed, binding agreement. According to
the Court’s holding in this case, the Constitution
prohibits the states from impairing the obligation of
any contract, even those contrary to the public good.
Striking down the 1796 Georgia statute was one of
the earliest instances of the Supreme Court
nullifying a state law on constitutional grounds.
Fletcher v. Peck established the contract clause as
an important provision of the new Constitution and
encouraged the use of the clause in challenges to the
economic regulations of the states.
Marshall’s initial interpretation of the contract

clause was reinforced just two years later in New
Jersey v. Wilson (1812). This dispute can be traced
back to 1758, when the remnants of the Delaware
Indian tribe settled their land claims with the state
of New Jersey. The Delawares consented to give up
their claim to the disputed lands if the state would
purchase a tract for the tribe to inhabit. The
agreement also freed the tribe from state taxation on
the land. In 1801 members of the tribe decided to
move to New York, and New Jersey allowed them to
sell their land. Three years later the state passed a
law subjecting the property to state taxes. The new
owners objected, claiming that the repeal of tax-
exempt status was an impairment of the 1758
contract. Chief Justice Marshall, for a unanimous
Court, ruled in favor of the landowners. The
legislature had granted the tax exemption to the
land as part of a legally binding contract. That
contractual obligation could not later be impaired by
the state. The tax status conferred in 1758 remained
with the land even though the original parties to the
agreement had sold it.
Box 9-1 Aftermath . . . The Yazoo Lands

Controversy
THE SUPREME COURT’s decision in Fletcher v.

Peck (1810) provided a landmark ruling on the
meaning of the contract clause, but it did not fully
resolve the issues surrounding the Yazoo land
claims. In the period between the original land
sale by the Georgia legislature in 1795 and the
state’s voiding of the sale in 1796, parcels were
bought and sold in a climate of feverish land
speculation. About 60 percent of the purchasers
were New England residents eager to participate
in western land investments. After Georgia
repealed the original sale, titles to the Yazoo lands
were in considerable doubt. Not only did the
actions by the Georgia legislature thoroughly
confuse the issue, but also claims by Indian tribes,
old Spanish interests, squatters, and those who
had been granted lands by Georgia governors over
the years clouded the issue. Bogus titles and sales
of nonexistent land complicated matters even
further.
When purchasers learned that Georgia had passed

legislation canceling the original sale, they
pressured Congress to provide compensation if
their titles proved to be invalid. Northern
representatives favored a compensation program
to provide relief to constituents who had
purchased property, but southerners, especially
representatives from Georgia, opposed any
compensation as rewarding those who sought to
benefit from the original acts of bribery and fraud.
Fletcher v. Peck was first filed in federal circuit
court in Massachusetts in 1803 in an attempt to
have the judiciary settle the matter. Action on the
lawsuit and subsequent appeals was delayed, with
the parties hoping that Congress would pass a
compensation act. When legislation failed in 1804,
1805, and 1806, it appeared that the courts would
have to answer the lingering questions. By the
time the Supreme Court decided Fletcher v. Peck,
fifteen years had elapsed since the original sales,
and determining valid title to each parcel of land
was impossible.
The decision in Fletcher v. Peck was unpopular in

many circles. Some people thought the Court
should not uphold contracts based on wholesale
corruption. Thomas Jefferson used the decision as
an opportunity to renew his attacks on Marshall.
He claimed the chief justice’s opinion was filled
with “twistifications,” “cunning,” and “sophistry.”
According to Jefferson, it illustrated once again
“how dexterously [Marshall] can reconcile law to
his personal biases.”
The decision, however, put pressure on Congress

to bring closure to the controversy. Northerners
again demanded a compensation program, but
southerners still resisted. In 1814 Congress
appropriated $5 million from federal land sales to
compensate those who held title to the Yazoo
lands. Investors released their land claims in
return for monetary compensation. It took four
years for the claims to be settled. Northern
representatives had obtained relief for their
constituents, but southern interests also benefited.
Resolving the confusion over the Yazoo lands
cleared the way for organizing the Mississippi
Territory, which was admitted as a slaveholding
state in 1817.
Sources: C. Peter Magrath, Yazoo: Law and

Politics in the New Republic (Providence, RI:
Brown University Press, 1966). See also Charles F.
Hobson, The Great Yazoo Lands Sale: The Case of
Fletcher v. Peck (Lawrence: University Press of
Kansas, 2016).
In 1819 the Court heard Sturges v. Crowninshield,

an appeal that presented issues hitting squarely on
the concerns expressed by the delegates at the
Constitutional Convention. Richard Crowninshield,
whose business enterprises had suffered hard times,
received two loans from Josiah Sturges totaling
about $1,500. The loans were secured by promissory
notes. When Crowninshield became insolvent, he
sought relief from his debts by invoking New York’s
recently passed bankruptcy law. Sturges objected,
claiming that the New York law was a state
impairment of the obligation of contracts in violation
of the Constitution. The New York bankruptcy law
was an example of just what the framers had
intended to prohibit—states interfering with debtor–
creditor agreements.
Sturges v. Crowninshield presented two issues to the

Supreme Court. The first was whether a state may
enact a bankruptcy law at all. Article I, Section 8,
Clause 4, of the Constitution expressly gave the
federal government power to enact such legislation.
Did this power preclude the states from acting? A
unanimous Court, again through an opinion written
by Chief Justice Marshall, held that in the absence of
any federal action the states were free to enact
bankruptcy laws. The second issue was whether the
New York law was invalid as an impairment of
contracts. Here the Court found the law defective.
The New York law discharged Crowninshield’s
contractual indebtedness entered into prior to the
passage of the statute, which, according to the
Court, was beyond the power of the state.2
2 Eight years later, however, the Court held in Ogden

v. Saunders (1827) that state bankruptcy laws did
not violate the contract clause if the contract was
entered into after enactment of the bankruptcy
statute.
Corporate Charters as Contracts

The same year the Supreme Court decided Sturges,
the justices announced their decision in Trustees of
Dartmouth College v. Woodward (1819), perhaps the
most famous contract clause case of the Marshall
era. The Dartmouth College case presented a
question of particular significance to the business
community: Is a corporation charter a contract
protected against state impairment? The case had
added intrigue because it involved a bitter partisan
battle between the Jeffersonian Republicans and the
Federalists.
Trustees of Dartmouth College v. Woodward 17

U.S. (4 Wheat.) 518 (1819)
court/17/518.html
Vote: 5 (Johnson, Livingston, Marshall, Story,

Washington)
1 (Duvall)

CONCURRING OPINIONS: Story,
Washington
Facts:
In 1769 King George III issued a corporate charter
establishing Dartmouth College in New
Hampshire.3 The charter designated a board of
trustees, never to consist of more than twelve
individuals, as the ultimate governing body, with
the board’s authority extending to the college
president. The board was self-perpetuating, with
the power to fill its own vacancies. The founder
and first president of Dartmouth was Eleazar
Wheelock, who also had authority to designate his
own successor. He chose his son, John Wheelock,
who assumed the presidency upon Eleazar’s
death. John Wheelock was ill suited for the
position, and for years friction existed between
him and the board.
3 This account of the facts in the Dartmouth

College case is based in part on Richard N.
Current, “The Dartmouth College Case,” in
Garraty, Quarrels That Have Shaped the
Constitution.
To shore up his position, Wheelock made political

alliances with the Jeffersonian Republicans who
had gained control of the New Hampshire state
legislature in 1816. The Republicans gladly took
his side in the dispute with the Federalist-
dominated board of trustees and passed a law
radically changing the governing structure of the
college. The law expanded the board from twelve
to twenty-one members to be appointed by the
governor, and created a supervisory panel with
veto power over the actions of the trustees. This
reorganization of the college essentially rendered
the old trustees powerless. In effect, the
legislature converted Dartmouth College, renamed
Dartmouth University under the new law, from a
private to a public institution. The result was
chaos. The students and faculty for the most part
remained loyal to the old trustees, but the state
essentially took over the buildings and records of
the college. As might be expected, the college
soon found itself nearing fiscal collapse.
To resolve the situation, the old trustees hired

Daniel Webster to represent them. Webster, an
1801 Dartmouth graduate, agreed to take the case
for a fee of $1,000—a considerable sum of money
in those days. The old trustees sued William
Woodward, the secretary of the college, who had
in his possession the college charter, records, and
seal. Webster and his clients lost in the state
courts and then appealed to the U.S. Supreme
Court. When the case was argued in March 1818,
Webster engaged in four hours of brilliant oratory
before the justices. At times his argument was
quite emotional; he is said to have brought tears
to the eyes of those present when he spoke his
often-quoted line, “It is, sir, as I have said, a small
college, and yet there are those that love it.” The
justices, however, did not act in the heat of
emotion. Almost a full year went by before the
Court decided. By the time the opinion was
released, both John Wheelock and William
Woodward had died.
Arguments:
For the plaintiffs in error, the trustees of
Dartmouth College:
By a grant from the English Crown, Eleazar

Wheelock was named president of Dartmouth
College and was empowered to name his
successor. By the same grant, the original
board of twelve trustees was given power to fill
its own vacancies. These provisions were to be
in effect in perpetuity.
The changes made by the New Hampshire
legislature are not binding on the college
unless agreed to by the trustees.
It is an improper legislative act under the New
Hampshire constitution to take property and
rights from one (the old Dartmouth College
corporation) and grant them to another (the
new Dartmouth University corporation).
The acts of the legislature violate the U.S.
Constitution’s provision that states cannot
impair the obligation of contracts. The charter
establishing the college is a valid contract.

William Woodward:
A grant of a public nature for public purposes,
such as the Dartmouth College charter, is not
the kind of private agreement intended to be
protected under the contract clause.
The parties to the contract, King George and
Eleazar Wheelock, are not parties to this
lawsuit.
Even if the charter is a contract and the old
trustees are parties to it, the obligation of
contracts has not been impaired. The old
trustees remain on the board. The addition of
new trustees does not alter the position of the
old trustees.
By the Revolution, the powers of the British
government devolved to the states. Therefore,
the state has the same powers over its public
institutions as did the king.
The Reverend Eleazar Wheelock (left) was the

founder and first president of Dartmouth College;
John Wheelock (middle), son of Eleazar, was the
second president, and his dispute with the college
board of trustees led to the famed litigation.
William H. Woodward (right) was the secretary-
treasurer of the college and the defendant in the
contract clause case of Dartmouth College v.
Woodward.
Courtesy of Dartmouth College

The Opinion of the Court Was Delivered by

Mr. Chief Justice Marshall.
This Court can be insensible neither to the

magnitude nor delicacy of this question. The
validity of a legislative act is to be examined; and
the opinion of the highest law tribunal of a State is
to be revised: an opinion which carries with it
intrinsic evidence of the diligence, of the ability,
and the integrity, with which it was formed. On
more than one occasion, this Court has expressed
the cautious circumspection with which it
approaches the consideration of such questions;
and has declared, that, in no doubtful case, would
it pronounce a legislative act to be contrary to the
constitution. But the American people have said,
in the constitution of the United States, that “no
State shall pass any bill of attainder, ex post facto
law, or law impairing the obligation of contracts.”
In the same instrument they have also said, “that
the judicial power shall extend to all cases in law
and equity arising under the constitution.” On the
judges of this Court, then, is imposed the high and
solemn duty of protecting, from even legislative
violation, those contracts which the constitution of
our country has placed beyond legislative control;
and, however irksome the task may be, this is a
duty from which we dare not shrink. . . .
Drawing of Dartmouth College, 1793.

It can require no argument to prove, that the
circumstances of this case constitute a contract.
An application is made to the crown for a charter
to incorporate a religious and literary institution.
In the application, it is stated that large
contributions have been made for the object,
which will be conferred on the corporation, as
soon as it shall be created. The charter is granted,
and on its faith the property is conveyed. Surely in
this transaction every ingredient of a complete
and legitimate contract is to be found.
The points for consideration are,
1. Is this contract protected by the constitution of

the United States?
2. Is it impaired by the acts under which the
defendant holds? . . .
. . . . [T]he term “contract” must be understood in

a . . . limited sense. . . . [I]t must be understood as
intended to guard against a power of at least
doubtful utility, the abuse of which had been
extensively felt; and to restrain the legislature in
future from violating the right to property. That
anterior to the formation of the constitution, a
course of legislation had prevailed in many, if not
in all, of the States, which weakened the
confidence of man in man, and embarrassed all
transactions between individuals, by dispensing
with a faithful performance of engagements. To
correct this mischief, by restraining the power
which produced it, the State legislatures were
forbidden “to pass any law impairing the
obligation of contracts,” that is, of contracts
respecting property, under which some individual
could claim a right to something beneficial to
himself; and that since the clause in the
constitution must in construction receive some
limitation, it may be confined, and ought to be
confined, to cases of this description; to cases
within the mischief it was intended to remedy. . . .
The parties in this case differ less on general

principles, less on the true construction of the
constitution in the abstract, than on the
application of those principles to this case, and on
the true construction of the charter of 1769. This
is the point on which the cause essentially
depends. If the act of incorporation be a grant of
political power, if it create a civil institution to be
employed in the administration of the government,
or if the funds of the college be public property, or
if the State of New Hampshire, as a government,
be alone interested in its transactions, the subject
is one in which the legislature of the State may act
according to its own judgment, unrestrained by
any limitation of its power imposed by the
constitution of the United States.
But if this be a private eleemosynary [charitable]

institution, endowed with a capacity to take
property for objects unconnected with
government, whose funds are bestowed by
individuals on the faith of the charter; if the
donors have stipulated for the future disposition
and management of those funds in the manner
prescribed by themselves; there may be more
difficulty in the case. . . .
It becomes then the duty of the Court most

seriously to examine this charter, and to ascertain
its true character. . . .
Whence, then, can be derived the idea, that

Dartmouth College has become a public
institution, and its trustees public officers,
exercising powers conferred by the public for
public objects? Not from the source whence its
funds were drawn; for its foundation is purely
private and eleemosynary—Not from the
application of those funds; for money may be
given for education, and the persons receiving it
do not, by being employed in the education of
youth, become members of the civil government.
Is it from the act of incorporation? Let this subject
be considered.
A corporation is an artificial being, invisible,

intangible, and existing only in contemplation of
law. Being the mere creature of law, it possesses
only those properties which the charter of its
creation confers upon it, either expressly, or as
incidental to its very existence. These are such as
are supposed best calculated to effect the object
for which it was created. Among the most
important are immortality, and, if the expression
may be allowed, individuality; properties, by which
a perpetual succession of many persons are
considered as the same, and may act as a single
individual. They enable a corporation to manage
its own affairs, and to hold property without the
perplexing intricacies, the hazardous and endless
necessity of perpetual conveyances for the
purpose of transmitting it from hand to hand. It is
chiefly for the purpose of clothing bodies of men,
in succession, with these qualities and capacities,
that corporations were invented, and are in use.
By these means, a perpetual succession of
individuals are capable of acting for the promotion
of the particular object, like one immortal being.
But this being does not share in the civil
government of the country, unless that be the
purpose for which it was created. Its immortality
no more confers on it political power, or a political
character, than immortality would confer such
power or character on a natural person. It is no
more a State instrument, than a natural person
exercising the same powers would be. If, then, a
natural person, employed by individuals in the
education of youth, or for the government of a
seminary in which youth is educated, would not
become a public officer, or be considered as a
member of the civil government, how is it, that
this artificial being, created by law, for the
purpose of being employed by the same
individuals for the same purposes, should become
a part of the civil government of the country? Is it
because its existence, its capacities, its powers,
are given by law? Because the government has
given it the power to take and to hold property in
a particular form, and for particular purposes, has
the government a consequent right substantially
to change that form, or to vary the purposes to
which the property is to be applied? This principle
has never been asserted or recognized, and is
supported by no authority. Can it derive aid from
reason? . . .
From the fact, then, that a charter of

incorporation has been granted, nothing can be
inferred which changes the character of the
institution, or transfers to the government any
new power over it. The character of civil
institutions does not grow out of their
incorporation, but out of the manner in which they
are formed, and the objects for which they are
created. The right to change them is not founded
on their being incorporated, but on their being the
instruments of government, created for its
purposes. The same institutions, created for the
same objects, though not incorporated, would be
public institutions, and, of course, be controllable
by the legislature. The incorporating act neither
gives nor prevents this control. Neither, in reason,
can the incorporating act change the character of
a private eleemosynary institution. . . .
From this review of the charter, it appears, that

Dartmouth College is an eleemosynary institution,
incorporated for the purpose of perpetuating the
application of the bounty of the donors, to the
specified objects of that bounty; that its trustees
or governors were originally named by the
founder, and invested with the power of
perpetuating themselves; that they are not public
officers, nor is it a civil institution, participating in
the administration of government; but a charity
school, or a seminary of education, incorporated
for the preservation of its property, and the
perpetual application of that property to the
objects of its creation. . . .
This is plainly a contract to which the donors, the

trustees, and the crown, (to whose rights and
obligations New Hampshire succeeds,) were the
original parties. It is a contract made on a
valuable consideration. It is a contract for the
security and disposition of property. It is a
contract, on the faith of which, real and personal
estate has been conveyed to the corporation. It is
then a contract within the letter of the
constitution, and within its spirit also. . . .
The opinion of the Court, after mature

deliberation, is, that this is a contract, the
obligation of which cannot be impaired, without
violating the constitution of the United States.
This opinion appears to us to be equally supported
by reason, and by the former decisions of this
Court.
2. We next proceed to the inquiry, whether its

obligation has been impaired by those acts of the
legislature of New Hampshire. . . .
From the review of this charter, which has been

taken, it appears, that the whole power of
governing the college, of appointing and removing
tutors, of fixing their salaries, of directing the
course of study to be pursued by the students, and
of filling up vacancies created in their own body,
was vested in the trustees. On the part of the
crown it was expressly stipulated, that this
corporation, thus constituted, should continue
forever; and that the number of trustees should
forever consist of twelve, and no more. By this
contract the crown was bound, and could have
made no violent alteration in its essential terms,
without impairing its obligation.
By the revolution, the duties, as well as the

powers, of government devolved on the people of
New Hampshire. . . . [All] contracts, and rights,
respecting property, remained unchanged by the
revolution. The obligations then, which were
created by the charter to Dartmouth College, were
the same in the new, that they had been in the old
government. The power of the government was
also the same. A repeal of this charter at any time
prior to the adoption of the present constitution of
the United States, would have been an
extraordinary and unprecedented act of power,
but one which could have been contested only by
the restrictions upon the legislature, to be found
in the constitution of the State. But the
constitution of the United States has imposed this
additional limitation, that the legislature of a State
shall pass no act “impairing the obligation of
contracts.” . . .
The whole power of governing the college is

transferred from trustees appointed according to
the will of the founder, expressed in the charter, to
the executive of New Hampshire. The
management and application of the funds of this
eleemosynary institution, which are placed by the
donors in the hands of trustees named in the
charter, and empowered to perpetuate
themselves, are placed by this act under the
control of the government of the State. The will of
the State is substituted for the will of the donors,
in every essential operation of the college. This is
not an immaterial change. The founders of the
college contracted, not merely for the perpetual
application of the funds which they gave, to the
objects for which those funds were given; they
contracted also, to secure that application by the
constitution of the corporation. They contracted
for a system, which should, as far as human
foresight can provide, retain forever the
government of the literary institution they had
formed, in the hands of persons approved by
themselves. This system is totally changed. The
charter of 1769 exists no longer. It is reorganized;
and reorganized in such a manner, as to convert a
literary institution, moulded according to the will
of its founders, and placed under the control of
private literary men, into a machine entirely
subservient to the will of the government. This
may be for the advantage of this college in
particular, and may be for the advantage of
literature in general; but it is not according to the
will of the donors, and is subversive of that
contract, on the faith of which their property was
given. . . .
It results from this opinion, that the acts of the

legislature of New Hampshire . . . are repugnant
to the constitution of the United States. . . .The
judgment of the State Court must, therefore, be
reversed.
MR. JUSTICE STORY,

[Concurring].
In my judgment, it is perfectly clear that any act of
a legislature which takes away any powers or
franchises vested by its charter in a private
corporation, or its corporate officers, or which
restrains or controls the legitimate exercise of
them, or transfers them to other persons without
its assent is a violation of the obligations of that
charter. If the legislature mean to claim such an
authority, it must be reserved in the grant. The
charter of Dartmouth College contains no such
reservation, and I am therefore bound to declare
that the acts of the Legislature of New Hampshire
now in question do impair the obligations of that
charter, and are consequently unconstitutional
and void.
In pronouncing this judgment, it has not for one

moment escaped me how delicate, difficult, and
ungracious is the task devolved upon us. The
predicament in which this Court stands in relation
to the nation at large is full of perplexities and
embarrassments. It is called to decide on causes
between citizens of different States, between a
State and its citizens, and between different
States. It stands, therefore in the midst of
jealousies and rivalries of conflicting parties with
the most momentous interests confided to its care.
Under such circumstances, it never can have a
motive to do more than its duty, and I trust it will
always be found to possess firmness enough to do
that.
Under these impressions, I have pondered on the

case before us with the most anxious deliberation.
I entertain great respect for the Legislature whose
acts are in question. I entertain no less respect for
the enlightened tribunal whose decision we are
called upon to review. In the examination, I have
endeavored to keep . . . under the guidance of
authority and principle. It is not for judges to
listen to the voice of persuasive eloquence or
popular appeal. We have nothing to do, but to
pronounce the law as we find it, and, having done
this, our justification must be left to the impartial
judgment of our country.
The Dartmouth College case was a clear victory for
Webster and the board. The former trustees
regained control of the college, and Webster’s
reputation as one of the nation’s leading legal
advocates was firmly established. The decision was
also a victory for business interests. By holding that
corporate charters were contracts under the
meaning of Article I, Section 10, the Court gave
businesses considerable protection against state
regulation. The decision, however, was not totally
one-sided. Marshall acknowledged the power of the
state to include within its contracts and charters
provisions reserving the right to make future
changes.
The importance of the contract clause reached its

zenith under the Marshall Court. These early
decisions protecting contractual agreements helped
spur economic development and expansion. But an
inevitable battle was on the horizon, a battle
between the constitutional sanctity of contracts and
the states’ authority to regulate for the public good.
Decline of the Contract Clause:

From the Taney Court to the
New Deal
The Marshall years ended when the chief justice
died July 6, 1835, at the age of seventy-nine.
Marshall had been appointed in 1801 in one of the
last acts of the once-dominant Federalist Party, and
he had imposed his political philosophy on the
Court’s constitutional interpretations for more than
three decades. His decisions in contract clause
disputes, as well as in other areas of federalism and
economic regulation, encouraged economic
development and fostered entrepreneurial activity.
Importance of the Public Good

The days of the Federalist philosophy sympathetic to
the interests of business and the economic elite had
passed. Andrew Jackson now occupied the White
House. Jackson came from the American frontier and
was committed to policies beneficial to ordinary
citizens; he had little sympathy for the moneyed
classes of the Northeast. Within a short period,
Jackson had the opportunity to change the course of
the Supreme Court. He filled not only the center
chair left vacant by Marshall’s death but also those
of five associate justices.4 The new appointees all
held ideologies consistent with principles of
Jacksonian democracy, especially the new chief
justice, Roger Brooke Taney, a Maryland Democrat
who had served in a number of posts in the Jackson
administration. Changes in constitutional
interpretation were inevitable, although in the final
analysis the Taney Court did not veer as far from
Marshall precedents as many had predicted.
4 This number includes Associate Justice John
Catron, who was nominated on Jackson’s last day in
office and whose appointment is often credited to
Jackson’s successor, Martin Van Buren.
Given the differences between Federalist and

Jacksonian values, however, the Court was likely to
reevaluate the contract clause. The Taney Court’s
first opportunity to do so came in Proprietors of
Charles River Bridge v. Proprietors of Warren Bridge
(1837). As you read the Court’s opinion, compare it
with the positions Marshall stated in Fletcher v. Peck
and Dartmouth College. Although Taney did not
repudiate Marshall’s rulings, his opinion in Charles
River Bridge struck a new balance between the
inviolability of contracts and the power of the state
to legislate for the public good. The Court also held
that contracts should be strictly construed, a
position at odds with Marshall’s rather expansive
interpretations of contractual obligations. Justice
Story, who had appeared as an attorney in Fletcher
v. Peck and had supported Marshall’s views of the
contract clause since he joined the Court in 1811,
disagreed with this change in doctrine.
Proprietors of Charles River Bridge v. Proprietors

of Warren Bridge 36 U.S. (11 Pet.) 420 (1837)
court/36/420.html
Vote: 5 (Baldwin, Barbour, McLean, Taney, Wayne)

2 (Story, Thompson)
OPINION OF THE COURT: Taney

CONCURRING OPINION: McLean
DISSENTING OPINIONS: Story, Thompson
Facts:
In 1785 the Massachusetts legislature created
Charles River Bridge Company by charter. The
charter gave the company the right to construct a
bridge between Boston and Charlestown and to
collect tolls for its use. This agreement replaced a
ferry franchise between the two cities that the
colonial legislature had granted to Harvard
College in 1650. In 1792 the legislature extended
the charter. Because of the population growth in
the Boston area, the bridge received heavy use,
and its investors prospered. In 1828, when traffic
congestion on the bridge became a significant
problem, the legislature decided that a second
bridge was necessary. Consequently, the state
incorporated Warren Bridge Company and
authorized it to construct a bridge to be located
about a hundred yards from the first. The Warren
Bridge investors had authority to collect tolls to
pay for the expense of construction plus an
agreed-on profit. Within six years the state would
assume ownership of the Warren Bridge and
operate it on a toll-free basis.
Charles River Bridge Company opposed the

construction of a second bridge. It claimed that its
charter conferred the exclusive right to build and
operate a bridge between Boston and
Charlestown. A second bridge, eventually to be
operated without tolls, would deprive the company
of the profits from its investment.
The second charter, the company claimed, was a

violation of the contract clause. To represent it,
Charles River Bridge Company hired Daniel
Webster, who had won Dartmouth College two
decades earlier (see Box 9-2). When the
Massachusetts courts failed to grant relief,
Charles River Bridge took its case to the U.S.
Supreme Court.
The case was first argued in March 1831. John

Marshall still led the Court at that time, and
Webster understandably felt confident of victory.
But the justices could not agree on a decision, and
the case was scheduled for reargument in 1833.
Once again, no decision was reached. Before a
third hearing could be scheduled, deaths and
resignations had changed the ideological
complexion of the Court. When Jackson announced
Taney as his choice for chief justice, Webster is
said to have proclaimed, “The Constitution is
gone.” From Webster’s perspective perhaps that
was true. The Taney justices scheduled the bridge
case to be reargued in 1837, and Webster no
longer had a sympathetic audience for his strong
contract clause position.
Arguments:
For the plaintiffs in error, the
proprietors of Charles River Bridge:
A contract granting a company the right to
build and operate the Charles River Bridge and
collect tolls from it implies that the state will
not take actions that create injurious
competition with that enterprise.
The legislative act authorizing the Warren
Bridge impairs the obligation of the contract
between the state and Charles River Bridge
Company in violation of the contract clause of
the U.S. Constitution.
In recognition of the loss suffered when its
ferry system was replaced by the Charles River
Bridge, Harvard College received annual
payments from the toll revenue collected by
the bridge company. By this precedent, Charles
River Bridge Company merits compensation for
its loss of revenue due to the state’s
authorization of the Warren Bridge.
The governing principle should be that when
the terms of a contract are in doubt, the
interpretation shall be strongly against the
grantor.
For the defendants in error, the

proprietors of the Warren
Bridge:
Nothing in the charters of the Harvard ferry or
the Charles River Bridge guarantees an
exclusive right to provide transportation across
the river.
When interpreting a public grant, nothing
should pass by implication.
The state cannot contract away its authority to
legislate for the security and well-being of
society. The state always retains the power to
provide transportation systems for its people.
The state’s grant to Charles River Bridge
Company included the right to build and
operate a bridge, and nothing more.
Box 9-2 Daniel Webster
Daniel Webster played an influential role in the

development of American law and politics during a
public career that spanned almost fifty years. He
was born in Salisbury, New Hampshire, January
18, 1782, and educated at Phillips Exeter
Academy and Dartmouth College. He was
admitted to the bar in 1805 and immediately
began the practice of law in his home state.
Library of Congress
In 1813 Webster was elected to Congress as a

Federalist representative from New Hampshire.
This office was only the beginning of an illustrious
series of important positions:
United States representative, New Hampshire,
1813–1817
Monroe delegate to Electoral College, 1820
United States representative, Massachusetts,
1823–1827
United States senator, Massachusetts, 1827–
1841
Presidential candidate, 1836
Secretary of state (Harrison and Tyler
administrations), 1841–1843
United States senator, Massachusetts, 1845–
1850
Secretary of state (Fillmore administration),
1850–1852
Webster was perhaps best known for his role as an

advocate before the Supreme Court and the
brilliant oratorical skills he displayed both in
Congress and in the courts. He appeared before
the Supreme Court in 168 cases, winning about
half of them. In twenty-four of his appearances he
was an advocate in a major constitutional dispute.
Among the most celebrated of these cases were
the following:

Dartmouth College v. Woodward (1819)
Cohens v. Virginia (1821)
Gibbons v. Ogden (1824)
Osborn v. Bank of the United States (1824)
Ogden v. Saunders (1827)
Wheaton v. Peters (1834)
Charles River Bridge v. Warren Bridge (1837)
Swift v. Tyson (1842)
West River Bridge v. Dix (1848)
Luther v. Borden (1849)
Webster died October 24, 1852, at his home in
Marshfield, Massachusetts.
Note: For a review of Webster’s legal career, see

Maurice G. Baxter, Daniel Webster and the
Supreme Court (Amherst: University of
Massachusetts Press, 1966).
Mr. Chief Justice Taney Delivered the Opinion

of the Court.
The plaintiffs in error insist . . . [t]hat . . . the acts

of the legislature of Massachusetts . . . by their
true construction, necessarily implied that the
legislature would not authorize another bridge,
and especially a free one, by the side of this, and
placed in the same line of travel, whereby the
franchise granted to the “proprietors of the
Charles River Bridge” should be rendered of no
value; and the plaintiffs in error contend, that the
grant of the ferry to the college, and of the charter
to the proprietors of the bridge, are both contracts
on the part of the state; and that the law
authorizing the erection of the Warren Bridge in
1828, impairs the obligation of one or both of
these contracts. . . .
The Charles River Bridge ran from Prince Street

in Boston to Charlestown. The bridge, considered
a very advanced design at the time of its
construction, was built on seventy-five oak piers
and was more than 1,500 feet long.
Library of Congress
. . . [W]e are not now left to determine, for the

first time, the rules by which public grants are to
be construed in this country. The subject has
already been considered in this Court . . . and the
principle recognized, that in grants by the public,
nothing passes by implication. . . .
. . . [T]he object and end of all government is to

promote the happiness and prosperity of the
community by which it is established; and it can
never be assumed, that the government intended
to diminish its power of accomplishing the end for
which it was created. And in a country like ours,
free, active, and enterprising, continually
advancing in numbers and wealth; new channels
of communication are daily found necessary, both
for travel and trade; and are essential to the
comfort, convenience, and prosperity of the
people. A state ought never to be presumed to
surrender this power, because, like the taxing
power, the whole community have an interest in
preserving it undiminished. And when a
corporation alleges, that a state has surrendered
for seventy years, its power of improvement, and
public accommodation, in a great and important
line of travel, along which a vast number of its
citizens must daily pass; the community have a
right to insist, in the language of this Court above
quoted, “that its abandonment ought not to be
presumed, in a case, in which the deliberate
purpose of the state to abandon it does not
appear.” The continued existence of a government
would be of no great value, if by implications and
presumptions, it was disarmed of the powers
necessary to accomplish the ends of its creation;
and the functions it was designed to perform,
transferred to the hands of privileged
corporations. The rule of construction announced
by the Court, was not confined to the taxing
power; nor is it so limited in the opinion delivered.
On the contrary, it was distinctly placed on the
ground that the interests of the community were
concerned in preserving, undiminished, the power
then in question; and whenever any power of the
state is said to be surrendered or diminished,
whether it be the taxing power or any other
affecting the public interest, the same principle
applies, and the rule of construction must be the
same. No one will question that the interests of
the great body of the people of the state, would, in
this instance, be affected by the surrender of this
great line of travel to a single corporation, with
the right to exact toll, and exclude competition for
seventy years. While the rights of private property
are sacredly guarded, we must not forget that the
community also have rights, and that the
happiness and well being of every citizen depends
on their faithful preservation.
Adopting the rule of construction above stated as
the settled one, we proceed to apply it to the
charter of 1785, to the proprietors of the Charles
River Bridge. This act of incorporation is in the
usual form, and the privileges such as are
commonly given to corporations of that kind. It
confers on them the ordinary faculties of a
corporation, for the purpose of building the
bridge; and establishes certain rates of toll, which
the company are authorized to take. This is the
whole grant. There is no exclusive privilege given
to them over the waters of Charles River, above or
below their bridge. No right to erect another
bridge themselves, nor to prevent other persons
from erecting one. No engagement from the state,
that another shall not be erected; and no
undertaking not to sanction competition, nor to
make improvements that may diminish the amount
of its income. Upon all these subjects the charter
is silent; and nothing is said in it about a line of
travel, so much insisted on in the argument, in
which they are to have exclusive privileges. No
words are used, from which an intention to grant
any of these rights can be inferred. If the plaintiff
is entitled to them, it must be implied, simply,
from the nature of the grant; and cannot be
inferred from the words by which the grant is
made.
The relative position of the Warren Bridge has

already been described. It does not interrupt the
passage over the Charles River Bridge, nor make
the way to it or from it less convenient. None of
the faculties or franchises granted to that
corporation, have been revoked by the legislature;
and its right to take the tolls granted by the
charter remains unaltered. In short, all the
franchises and rights of property enumerated in
the charter, and there mentioned to have been
granted to it, remain unimpaired. But its income is
destroyed by the Warren Bridge; which, being
free, draws off the passengers and property which
would have gone over it, and renders their
franchise of no value. This is the gist of the
complaint. For it is not pretended, that the
erection of the Warren Bridge would have done
them any injury, or in any degree affected their
right of property; if it had not diminished the
amount of their tolls. In order then to entitle
themselves to relief, it is necessary to show, that
the legislature contracted not to do the act of
which they complain; and that they impaired, or in
other words, violated that contract by the erection
of the Warren Bridge.
The inquiry then is, does the charter contain such

a contract on the part of the state? Is there any
such stipulation to be found in that instrument? It
must be admitted on all hands, that there is none
—no words that even relate to another bridge or
to the diminution of their tolls, or to the line of
travel. If a contract on that subject can be
gathered from the charter, it must be by
implication; and cannot be found in the words
used. Can such an agreement be implied? The rule
of construction before stated is an answer to the
question. In charters of this description, no rights
are taken from the public, or given to the
corporation, beyond those which the words of the
charter, by their natural and proper construction,
purport to convey. There are no words which
import such a contract as the plaintiffs in error
contend for, and none can be implied. . . .
Indeed, the practice and usage of almost every

state in the Union, old enough to have commenced
the work of internal improvement, is opposed to
the doctrine contended for on the part of the
plaintiffs in error. Turnpike roads have been made
in succession, on the same line of travel; the later
ones interfering materially with the profits of the
first. These corporations have, in some instances,
been utterly ruined by the introduction of newer
and better modes of transportation, and travelling.
In some cases, rail roads have rendered the
turnpike roads on the same line of travel so
entirely useless, that the franchise of the turnpike
corporation is not worth preserving. Yet in none of
these cases have the corporations supposed that
their privileges were invaded, or any contract
violated on the part of the state. Amid the
multitude of cases which have occurred, and have
been daily occurring for the last forty or fifty
years, this is the first instance in which such an
implied contract has been contended for, and this
Court called upon to infer it from an ordinary act
of incorporation, containing nothing more than the
usual stipulations and provisions to be found in
every such law. The absence of any such
controversy, when there must have been so many
occasions to give rise to it, proves that neither
states, nor individuals, nor corporations, ever
imagined that such a contract could be implied
from such charters. It shows that the men who
voted for these laws, never imagined that they
were forming such a contract; and if we maintain
that they have made it, we must create it by a
legal fiction, in opposition to the truth of the fact,
and the obvious intention of the party. We cannot
deal thus with the rights reserved to the states;
and by legal intendments and mere technical
reasoning, take away from them any portion of
that power over their own internal police and
improvement, which is so necessary to their well
being and prosperity. . . .
The judgment of the supreme judicial court of the

commonwealth of Massachusetts, dismissing the
plaintiff’s bill, must, therefore, be affirmed, with
costs.
MR. JUSTICE STORY,

dissenting.
I maintain, that, upon the principles of common
reason and legal interpretation, the present grant
carries with it a necessary implication that the
legislature shall do no act to destroy or essentially
to impair the franchise; that, (as one of the
learned judges of the state court expressed it,)
there is an implied agreement that the state will
not grant another bridge between Boston and
Charlestown, so near as to draw away the custom
from the old one; and, (as another learned judge
expressed it,) that there is an implied agreement
of the state to grant the undisturbed use of the
bridge and its tolls so far as respects any acts of
its own, or of any persons acting under its
authority. In other words, the state, impliedly,
contracts not to resume its grant, or to do any act
to the prejudice or destruction of its grant. I
maintain, that there is no authority or principle
established in relation to the construction of
crown grants, or legislative grants; which does not
concede and justify this doctrine. Where the thing
is given, the incidents, without which it cannot be
enjoyed, are also given. . . . I maintain that a
different doctrine is utterly repugnant to all the
principles of the common law, applicable to all
franchises of a like nature; and that we must
overturn some of the best securities of the rights
of property, before it can be established. I
maintain, that the common law is the birthright of
every citizen of Massachusetts, and that he holds
the title deeds of his property, corporeal, and
incorporeal, under it. I maintain, that under the
principles of the common law, there exists no more
right in the legislature of Massachusetts, to erect
the Warren Bridge, to the ruin of the franchise of
the Charles River Bridge than exists to transfer
the latter to the former, or to authorize the former
to demolish the latter. If the legislature does not
mean in its grant to give any exclusive rights, let it
say so, expressly; directly; and in terms admitting
of no misconstruction. The grantees will then take
at their peril, and must abide the results of their
overweening confidence, indiscretion, and zeal.
My judgment is formed upon the terms of the

grant, its nature and objects, its design and
duties; and, in its interpretation, I seek for no new
principles, but I apply such as are as old as the
very rudiments of the common law.
Paying little attention to Justice Story’s protest that

the majority had rendered the contract clause
meaningless, the Taney Court continued to allow the
states more leeway in regulating for the public good.
As Taney noted in Charles River Bridge, “While the
rights of private property are sacredly guarded, we
must not forget that the community also have rights,
and that the happiness and well being of every
citizen depends on their faithful preservation.”
The Taney justices, however, did not totally abandon

the Marshall Court’s posture favoring business, nor
did they repeal the contract clause by judicial fiat;
instead, the Court took a more balanced position. In
a number of cases, especially when the contractual
provisions were clear, the Taney Court struck down
state regulations on contract clause grounds. In
Bronson v. Kinzie (1843), the Court invalidated
Illinois laws that expanded the rights of debtors. The
challenged statutes placed certain limits on
mortgage debt, including protecting the rights of
owners to repurchase properties lost to foreclosure.
To the extent that these laws were applied to
contracts in existence before their passage, the laws
were unconstitutional. In Piqua Branch of the State
Bank of Ohio v. Knoop (1854), the justices declared
void the assessment of state taxes on a bank
because, in calculating the taxes, Ohio had used a
basis different from that specified under the state
charter establishing the bank.
Post–Civil War Period

After the Taney years, the Court continued to move
away from strong enforcement of the contract clause
and to accord the states greater freedom to exercise
their police powers. Northwestern Fertilizing
Company v. Hyde Park (1878) provides a good
illustration. In March 1867 the Illinois state
legislature passed a statute creating Northwestern
Fertilizing Company. The charter authorized the
company within a designated territory to operate a
facility that converted dead animals to fertilizer and
other products. The charter also gave the company
the right to transport dead animals and animal parts
(offal) through the territory. Based on this authority,
the company operated its plant in a sparsely
populated, swampy area.
The facility was located within the boundaries of the

village of Hyde Park, which was beginning to
experience considerable population growth. In 1869
the legislature upgraded the village charter, giving it
full powers of local government including the
authority to “define or abate nuisances which are, or
may be, injurious to the public health.” Recognizing
its charter with Northwestern, the legislature
stipulated that no village regulations could be
applied to the company for at least two years.
At the end of the two years, the village passed an

ordinance that said, “No person shall transfer, carry,
haul, or convey any offal, dead animals, or other
offensive or unwholesome matter or material, into or
through the village of Hyde Park.” Parties in
violation of the law were subject to fines. In 1873,
following the arrest and conviction of railroad
workers hauling dead animals to its plant,
Northwestern filed suit claiming that the company’s
original charter was a contract that could not be
abrogated by the state or its local governments. The
company was unsuccessful in the state courts and
appealed to the U.S. Supreme Court.
Justice Noah Swayne’s opinion made clear at the

outset that the company faced a difficult task in its
attempt to convince the justices:
The rule of construction in this class of cases is

that it shall be most strongly against the
corporation. Every reasonable doubt is to be
resolved adversely. Nothing is to be taken as
conceded but what is given in unmistakable
terms, or by an implication equally clear. The
affirmative must be shown. Silence is negation,
and doubt is fatal to the claim. This doctrine is
vital to the public welfare.
The Court then went on to rule against the

company’s contract clause arguments. The justices
had no doubt that the transportation of offal was a
public nuisance or that the state had ample police
power to combat such an offensive practice.
According to Swayne,
That power belonged to the States when the
Federal Constitution was adopted. They did not
surrender it, and they all have it now. . . . It rests
upon the fundamental principle that everyone
shall so use his own as not to wrong and injure
another. To regulate and abate nuisances is one
of its ordinary functions.
The Court was implying that states could not

contract away their inherent powers to regulate for
their citizens’ health, safety, and welfare.
Two years after Northwestern Fertilizing the justices

addressed a similar appeal, this time dealing with
questions of public morality. Stone v. Mississippi
focused on the use of the state’s police power to
combat lotteries, a form of gambling that large
portions of the population considered evil at that
time. As you read Chief Justice Morrison Waite’s
opinion for the Court, compare it with the decisions
written during the Marshall era. Note how much the
Court’s interpretation of the contract clause had
changed.
Stone v. Mississippi 101 U.S. 814 (1880)
court/101/814.html
Vote: 9 (Bradley, Clifford, Field, Harlan, Hunt,

Miller, Strong, Swayne, Waite)
0
OPINION OF THE COURT: Waite
Facts:
In 1867 the post–Civil War provisional state
legislature chartered the Mississippi Agricultural,
Educational, and Manufacturing Aid Society. In
spite of its name, the society’s only purpose was to
operate a lottery. The charter gave the society
authority to run a lottery in Mississippi for twenty-
five years, and in return the society paid an initial
sum of cash to the state, an additional annual
payment for each year of operation, plus a
percentage of the lottery receipts. In 1868,
however, a state convention drafted a new
constitution, which the people ratified the next
year. This constitution contained provisions
explicitly outlawing lotteries. It also stated, “Nor
shall any lottery heretofore authorized be
permitted to be drawn, or tickets therein to be
sold.” On July 16, 1870, the legislature passed a
statute providing for enforcement of the
antilottery provisions, and four years later, on
March 17, 1874, the state attorney general filed
charges against John B. Stone and others
associated with the Mississippi Agricultural,
Educational, and Manufacturing Aid Society for
being in violation of state law. The state admitted
that the company was operating within the
provisions of its 1867 charter but contended that
the new constitution and subsequent enforcement
legislation effectively repealed that grant. Stone
countered that the federal contract clause
explicitly prohibited the state from negating the
provisions of the charter.
Arguments:
For the plaintiffs in error, John B. Stone
et al.:
The Mississippi Agricultural, Educational, and
Manufacturing Aid Society had a valid contract
to issue and sell lottery tickets in Mississippi for
twenty-five years.
The society complied fully with all the
provisions of the contract.
The Mississippi law is an unconstitutional
impairment of the obligation of contracts.
For the defendant in error, State

of Mississippi:
The state legislature cannot by contract bind
the will of the people.
The state legislature cannot contract away the
state’s police powers.
One legislature cannot by contract bind future
legislatures with respect to matters of public
health or morals.
Mr. Chief Justice Waite Delivered the Opinion

of the Court.
It is now too late to contend that any contract
which a State actually enters into when granting a
charter to a private corporation is not within the
protection of the clause in the Constitution of the
United States that prohibits States from passing
laws impairing the obligation of contracts. Art. 1,
sect. 10. The doctrines of Trustees of Dartmouth
College v. Woodward [1819], announced by this
court more than sixty years ago, have become so
imbedded in the jurisprudence of the United
States as to make them to all intents and purposes
a part of the Constitution itself. In this connection,
however, it is to be kept in mind that it is not the
charter which is protected, but only any contract
the charter may contain. If there is no contract,
there is nothing in the grant on which the
Constitution can act. Consequently, the first
inquiry in this class of cases always is, whether a
contract has in fact been entered into, and if so,
what its obligations are.
In the present case the question is whether the

State of Mississippi, in its sovereign capacity, did
by the charter now under consideration bind itself
irrevocably by a contract to permit “the
Mississippi Agricultural, Educational, and
Manufacturing Aid Society,” for twenty-five years,
“to receive subscriptions, and sell and dispose of
certificates of subscription which shall entitle the
holders thereof to” “any lands, books, paintings,
antiques, scientific instruments or apparatus, or
any other property or thing that may be
ornamental, valuable, or useful,” “awarded to
them” “by casting of lots, or by lot, chance, or
otherwise.” There can be no dispute but that
under this form of words the legislature of the
State chartered a lottery company, having all the
powers incident to such a corporation, for twenty-
five years, and that in consideration thereof the
company paid into the State treasury $5,000 for
the use of a university, and agreed to pay, and
until the commencement of this suit did pay, an
annual tax of $1,000 and “one-half of one per cent
on the amount of receipts derived from the sale of
certificates or tickets.” If the legislature that
granted this charter had the power to bind the
people of the State and all succeeding legislatures
to allow the corporation to continue its corporate
business during the whole term of its authorized
existence, there is no doubt about the sufficiency
of the language employed to effect that object,
although there was an evident purpose to conceal
the vice of the transaction by the phrases that
were used. Whether the alleged contract exists,
therefore, or not, depends on the authority of the
legislature to bind the State and the people of the
State in that way.
All agree that the legislature cannot bargain away

the police power of a State. “Irrevocable grants of
property and franchises may be made if they do
not impair the supreme authority to make laws for
the right government of the State; but no
legislature can curtail the power of its successors
to make such laws as they may deem proper in
matters of police.” Many attempts have been
made in this court and elsewhere to define the
police power, but never with entire success. It is
always easier to determine whether a particular
case comes within the general scope of the power,
than to give an abstract definition of the power
itself which will be in all respects accurate. No
one denies, however, that it extends to all matters
affecting the public health or the public morals.
Neither can it be denied that lotteries are proper
subjects for the exercise of this power. We are
aware that formerly, when the sources of public
revenue were fewer than now, they were used in
some or all of the States, and even in the District
of Columbia, to raise money for the erection of
public buildings, making public improvements,
and not infrequently for educational and religious
purposes; but this court said, more than thirty
years ago, speaking through Mr. Justice Grier, that
“experience has shown that the common forms of
gambling are comparatively innocuous when
placed in contrast with the wide-spread pestilence
of lotteries. The former are confined to a few
persons and places, but the latter infests the
whole community; it enters every dwelling; it
reaches every class; it preys upon the hard
earnings of the poor; and it plunders the ignorant
and simple.” Happily, under the influence of
restrictive legislation, the evils are not so
apparent now; but we very much fear that with
the same opportunities of indulgence the same
results would be manifested.
If lotteries are to be tolerated at all, it is no doubt

better that they should be regulated by law, so
that the people may be protected as far as
possible against the inherent vices of the system;
but that they are demoralizing in their effects, no
matter how carefully regulated, cannot admit of a
doubt. When the government is untrammelled by
any claim of vested rights or chartered privileges,
no one has ever supposed that lotteries could not
lawfully be suppressed, and those who manage
them punished severely as violators of the rules of
social morality. From 1822 to 1867, without any
constitutional requirement, they were prohibited
by law in Mississippi, and those who conducted
them punished as a kind of gambler. During the
provisional government of that State, in 1867, at
the close of the late civil war, the present act of
incorporation, with more of like character, was
passed. The next year, 1868, the people, in
adopting a new constitution with a view to the
resumption of their political rights as one of the
United States, provided that “the legislature shall
never authorize any lottery, nor shall the sale of
lottery-tickets be allowed, nor shall any lottery
heretofore authorized be permitted to be drawn,
or tickets therein to be sold.” . . .
The question is therefore directly presented,

whether, in view of these facts, the legislature of a
State can, by the charter of a lottery company,
defeat the will of the people, authoritatively
expressed, in relation to the further continuance
of such business in their midst. We think it cannot.
No legislature can bargain away the public health
or the public morals. The people themselves
cannot do it, much less their servants. The
supervision of both these subjects of governmental
power is continuing in its nature, and they are to
be dealt with as the special exigencies of the
moment may require. Government is organized
with a view to their preservation, and cannot
divest itself of the power to provide for them. For
this purpose the largest legislative discretion is
allowed, and the discretion cannot be parted with
any more than the power itself. . . .
. . . [T]he power of governing is a trust committed
by the people to the government, no part of which
can be granted away. The people, in their
sovereign capacity, have established their
agencies for the preservation of the public health
and the public morals, and the protection of public
and private rights. These several agencies can
govern according to their discretion, if within the
scope of their general authority, while in power;
but they cannot give away nor sell the discretion
of those that are to come after them, in respect to
matters the government of which, from the very
nature of things, must “vary with varying
circumstances.” They may create corporations,
and give them, so to speak, a limited citizenship;
but as citizens, limited in their privileges, or
otherwise, these creatures of the government
creation are subject to such rules and regulations
as may from time to time be ordained and
established for the preservation of health and
morality.
The contracts which the Constitution protects are

those that relate to property rights, not
governmental. It is not always easy to tell on
which side of the line which separates
governmental from property rights a particular
case is to be put; but in respect to lotteries there
can be no difficulties. They are not, in the legal
acceptation of the term, mala in se [wrong by its
very nature], but, as we have just seen, may
properly be made mala prohibita [wrong by
government declaration]. They are a species of
gambling, and wrong in their influences. They
disturb the checks and balances of a well-ordered
community. Society built on such a foundation
would almost of necessity bring forth a population
of speculators and gamblers, living on the
expectation of what, “by the casting of lots, or by
lot, chance, or otherwise,” might be “awarded” to
them from the accumulations of others. Certainly
the right to suppress them is governmental, to be
exercised at all times by those in power, at their
discretion. Any one, therefore, who accepts a
lottery charter does so with the implied
understanding that the people, in their sovereign
capacity, and through their properly constituted
agencies, may resume it at any time when the
public good shall require, whether it be paid for or
not. All that one can get by such a charter is a
suspension of certain governmental rights in his
favor, subject to withdrawal at will. He has in legal
effect nothing more than a license to enjoy the
privilege on the terms named for the specified
time, unless it be sooner abrogated by the
sovereign power of the State. It is a permit, good
as against existing laws, but subject to future
legislative and constitutional control or
withdrawal.
On the whole, we find no error in the record.
Judgment affirmed.
Following Stone v. Mississippi it was clear that the

Court would no longer be sympathetic to contract
clause attacks on state regulatory statutes. With
contract clause avenues closing, opponents of state
regulation of business and commercial activities
turned to another provision of the Constitution, the
due process clause of the Fourteenth Amendment.
From the late 1880s to the 1930s, a period of Court
history discussed in Chapter 10, the Court heard and
often responded favorably to these substantive due
process arguments.
National Emergencies
The status of the contract clause reached its low
point during the Great Depression of the 1930s. With
the stock market crash of 1929, the nation entered
the worst economic crisis it had ever seen; most
Americans were placed in serious financial jeopardy.
The 1932 election of Franklin Roosevelt to the
presidency ushered in the New Deal, and the federal
government began to implement innovative
economic programs to combat the Depression. At the
same time, various states were developing their own
programs to protect their citizens against the
economic ravages the country was experiencing.
What people feared the most during the Depression

was losing the family home. Homeowners did what
they could to meet their mortgage obligations, but
many were out of work and unable to make their
payments. Financial institutions had little choice but
to foreclose on these properties as stipulated in the
mortgage contracts. To provide relief, several states
passed statutes aimed at increasing homeowners’
chances of saving their houses. Banks and other
creditors opposed these assistance measures. They
asserted that intervention by the state was a direct
violation of the constitutional ban against
impairment of contracts.
The showdown between the contract clause and a

state government’s authority to cope with economic
crises occurred in Home Building & Loan Assn. v.
Blaisdell (1934). As you read Chief Justice Charles
Evans Hughes’s opinion for the Court, think about
the Constitutional Convention and the concerns that
led the framers to adopt the contract clause. Would
they agree with the Court that the Constitution
should bend in the face of national crises, or would
they side with Justice George Sutherland’s position
that the provisions of the Constitution should be
interpreted the same way regardless of the
conditions of the times?
Home Building & Loan Assn. v. Blaisdell 290 U.S.

398 (1934)
court/290/398.html

Stone)

Devanter)

DISSENTING OPINION: Sutherland
Facts:
During the Great Depression, the nation
experienced high unemployment, low prices for
agricultural and manufactured products, a
stagnation of business, and a scarcity of credit. In
response to these conditions, the Minnesota
legislature declared that a state of economic
emergency existed that demanded the use of
extraordinary police powers for the protection of
the people. One of the legislature’s actions was
passage of the Minnesota Mortgage Moratorium
Act of 1933, which was designed to prevent
homeowners from losing their homes when they
could not make their mortgage payments. The act
allowed homeowners who were behind in their
payments to petition a state court for an extension
of time to meet their mortgage obligations. During
the period of the extension, the homeowners
would not make normal mortgage payments but
instead would pay a reasonable rental amount to
the mortgage holder. The maximum extension was
two years. The act was to be in effect only as long
as the economic emergency continued. Its
provisions applied to all mortgages, including
those signed prior to the passage of the statute.
John and Rosella Blaisdell owned a house in

Minneapolis that was mortgaged by Home
Building & Loan Association. They lived in one
part of the house and rented out the other part.
When the Blaisdells were unable to keep their
payments current or to obtain additional credit,
they requested an extension in accordance with
the moratorium law. The trial court denied the
request, but the state supreme court reversed the
decision. In response, the trial court granted the
Blaisdells a two-year moratorium on mortgage
payments. During this period the Blaisdells were
ordered to pay $40 a month, which would be
applied to taxes, insurance, interest, and
mortgage principal.
Home Building & Loan Association appealed the

granting of the extension, claiming that the law
was an impairment of contracts in violation of the
contract clause of the federal Constitution. The
Minnesota high court conceded that the law
impaired the obligation of contracts but concluded
that the statute was within the police powers of
the state because of the severe economic
emergency. Home Building & Loan Association
appealed to the U.S. Supreme Court.
Arguments:
For the appellant, Home Building &
Loan Association:
The Minnesota Mortgage Moratorium Act
impairs the obligation of contracts in violation
of the U.S. Constitution’s contract clause.
The law changes the terms of the mortgage
contract and deprives the appellant of the
remedies (e.g., foreclosure) included in the
mortgage agreement.
The law deprives the appellant of property
without due process of law.
The current economic conditions do not
constitute a sufficient emergency to suspend
the Constitution.
For the appellees, John H. and
Rosella Blaisdell:
Although in normal times the Minnesota law
would be unconstitutional, it does not violate
the Constitution because it is an emergency
measure justified by the police powers of the
state to respond to the economic depression.
Every contract is subject to the implied
limitation that its terms may be varied in a
reasonable manner in times of emergency
under the exercise of the state’s police powers.
Home Building & Loan Association is not
deprived of property without due process of
law because it has an opportunity to
participate in judicial hearings to consider
possible temporary alterations in the terms of
the mortgage.
The Minnesota law is fair, just, and reasonable.
It assists both debtors and lenders. The law
goes no further than necessary to cope with
the economic emergency.

In determining whether the provision for this

temporary and conditional relief exceeds the
power of the State by reason of the clause in the
Federal Constitution prohibiting impairment of the
obligations of contracts, we must consider the
relation of emergency to constitutional power, the
historical setting of the contract clause, the
development of the jurisprudence of this Court in
the construction of that clause, and the principles
of construction which we may consider to be
established.
Emergency does not create power. Emergency

does not increase granted power or remove or
diminish the restrictions imposed upon power
granted or reserved. The Constitution was
adopted in a period of grave emergency. Its grants
of power to the Federal Government and its
limitations of the power of the States were
determined in the light of emergency and they are
not altered by emergency. What power was thus
granted and what limitations were thus imposed
are questions which have always been, and always
will be, the subject of close examination under our
constitutional system.
While emergency does not create power,

emergency may furnish the occasion for the
exercise of power. “Although an emergency may
not call into life a power which has never lived,
nevertheless emergency may afford a reason for
the exertion of a living power already enjoyed.”
Wilson v. New [1917]. The constitutional question
presented in the light of an emergency is whether
the power possessed embraces the particular
exercise of it in response to particular conditions.
Thus, the war power of the Federal Government is
not created by the emergency of war, but it is a
power given to meet that emergency. It is a power
to wage war successfully, and thus it permits the
harnessing of the entire energies of the people in
a supreme cooperative effort to preserve the
nation. But even the war power does not remove
constitutional limitations safeguarding essential
liberties. When the provisions of the Constitution,
in grant or restriction, are specific, so
particularized as not to admit of construction, no
question is presented. Thus, emergency would not
permit a State to have more than two Senators in
the Congress, or permit the election of President
by a general popular vote without regard to the
number of electors to which the States are
respectively entitled, or permit the States to “coin
money” or to “make anything but gold and silver
coin a tender in payment of debts.” But where
constitutional grants and limitations of power are
set forth in general clauses, which afford a broad
outline, the process of construction is essential to
fill in the details. That is true of the contract
clause. The necessity of construction is not
obviated by the fact that the contract clause is
associated in the same section with other and
more specific prohibitions. Even the grouping of
subjects in the same clause may not require the
same application to each of the subjects,
regardless of differences in their nature.
In the construction of the contract clause, the

debates in the Constitutional Convention are of
little aid. But the reasons which led to the
adoption of that clause, and of the other
prohibitions of Section 10 of Article I, are not left
in doubt and have frequently been described with
eloquent emphasis. The widespread distress
following the revolutionary period, and the plight
of debtors, had called forth in the States an
ignoble array of legislative schemes for the defeat
of creditors and the invasion of contractual
obligations. Legislative interferences had been so
numerous and extreme that the confidence
essential to prosperous trade had been
undermined and the utter destruction of credit
was threatened. “The sober people of America”
were convinced that some “thorough reform” was
needed which would “inspire a general prudence
and industry, and give a regular course to the
business of society.” The Federalist, No. 44. It was
necessary to impose the restraining power of a
central authority in order to secure the
foundations even of “private faith.” . . .
But full recognition of the occasion and general

purpose of the clause does not suffice to fix its
precise scope. Nor does an examination of the
details of prior legislation in the States yield
criteria which can be considered controlling. To
ascertain the scope of the constitutional
prohibition we examine the course of judicial
decisions in its application. These put it beyond
question that the prohibition is not an absolute
one and is not to be read with literal exactness
like a mathematical formula. . . .
. . . Not only are existing laws read into contracts

in order to fix obligations as between the parties,
but the reservation of essential attributes of
sovereign power is also read into contracts as a
postulate of the legal order. The policy of
protecting contracts against impairment
presupposes the maintenance of a government by
virtue of which contractual relations are worth
while,—a government which retains adequate
authority to secure the peace and good order of
society. This principle of harmonizing the
constitutional prohibition with the necessary
residuum of state power has had progressive
recognition in the decisions of this Court. . . .
The Legislature cannot “bargain away the public

health or the public morals.” Thus, the
constitutional provision against the impairment of
contracts was held not to be violated by an
amendment of the state Constitution which put an
end to a lottery theretofore authorized by the
Legislature. Stone v. Mississippi [1880]. The
lottery was a valid enterprise when established
under express state authority, but the Legislature
in the public interest could put a stop to it. A
similar rule has been applied to the control by the
State of the sale of intoxicating liquors. Boston
Beer Company v. Massachusetts [1877]. The
States retain adequate power to protect the public
health against the maintenance of nuisances
despite insistence upon existing contracts.
Northwestern Fertilizing Company v. Hyde Park
[1878]. Legislation to protect the public safety
comes within the same category of reserved
power. This principle has had recent and
noteworthy application to the regulation of the use
of public highways by common carriers and
“contract carriers,” where the assertion of
interference with existing contract rights has been
without avail, Sproles v. Binford [1932]. . . .
It is manifest from this review of our decisions

that there has been a growing appreciation of
public needs and of the necessity of finding
ground for a rational compromise between
individual rights and public welfare. The
settlement and consequent contraction of the
public domain, the pressure of a constantly
increasing density of population, the interrelation
of the activities of our people and the complexity
of our economic interests, have inevitably led to
an increased use of the organization of society in
order to protect the very bases of individual
opportunity. Where, in earlier days, it was thought
that only the concerns of individuals or of classes
were involved, and that those of the State itself
were touched only remotely, it has later been
found that the fundamental interests of the State
are directly affected; and that the question is no
longer merely that of one party to a contract as
against another, but of the use of reasonable
means to safeguard the economic structure upon
which the good of all depends.
It is no answer to say that this public need was not

apprehended a century ago, or to insist that what
the provision of the Constitution meant to the
vision of that day it must mean to the vision of our
time. If by the statement that what the
Constitution meant at the time of its adoption it
means today, it is intended to say that the great
clauses of the Constitution must be confined to the
interpretation which the framers, with the
conditions and outlook of their time, would have
placed upon them, the statement carries its own
refutation. It was to guard against such a narrow
conception that Chief Justice Marshall uttered the
memorable warning: “We must never forget that it
is a constitution we are expounding” (McCulloch v.
Maryland); “a constitution intended to endure for
ages to come, and consequently, to be adapted to
the various crises of human affairs.” When we are
dealing with the words of the Constitution, said
this Court in Missouri v. Holland [1920], “we must
realize that they have called into life a being the
development of which could not have been
foreseen completely by the most gifted of its
begetters. . . . The case before us must be
considered in the light of our whole experience
and not merely in that of what was said a hundred
years ago.”
Nor is it helpful to attempt to draw a fine

distinction between the intended meaning of the
words of the Constitution and their intended
application. When we consider the contract clause
and the decisions which have expounded it in
harmony with the essential reserved power of the
States to protect the security of their peoples, we
find no warrant for the conclusion that the clause
has been warped by these decisions from its
proper significance or that the founders of our
Government would have interpreted the clause
differently had they had occasion to assume that
responsibility in the conditions of the later day.
The vast body of law which has been developed
was unknown to the fathers, but it is believed to
have preserved the essential content and the spirit
of the Constitution. With a growing recognition of
public needs and the relation of individual right to
public security, the court has sought to prevent
the perversion of the clause through its use as an
instrument to throttle the capacity of the States to
protect their fundamental interests. This
development is a growth from the seeds which the
fathers planted. . . . The principle of this
development is . . . that the reservation of the
reasonable exercise of the protective power of the
State is read into all contracts and there is no
greater reason for refusing to apply this principle
to Minnesota mortgages than to New York leases.
Applying the criteria established by our decisions

we conclude:
1. An emergency existed in Minnesota which

furnished a proper occasion for the exercise of
the reserved power of the State to protect the
vital interests of the community. . . .
2. The legislation was addressed to a legitimate
end, that is, the legislation was not for the
mere advantage of particular individuals but
for the protection of a basic interest of society.
3. In view of the nature of the contracts in
question—mortgages of unquestionable
validity—the relief afforded and justified by the
emergency, in order not to contravene the
constitutional provision, could only be of a
character appropriate to that emergency and
could be granted only upon reasonable
conditions.
4. The conditions upon which the period of
redemption is extended do not appear to be
unreasonable. . . .
5. The legislation is temporary in operation. It is
limited to the exigency which called it forth. . .
.
We are of the opinion that the Minnesota

statute as here applied does not violate the
contract clause of the Federal Constitution.
Whether the legislation is wise or unwise as a
matter of policy is a question with which we
are not concerned. . . .
The judgment of the Supreme Court of Minnesota
is affirmed.
MR. JUSTICE SUTHERLAND,

dissenting.
Few questions of greater moment than that just
decided have been submitted for judicial inquiry
during this generation. He simply closes his eyes
to the necessary implications of the decision who
fails to see in it the potentiality of future gradual
but ever-advancing encroachments upon the
sanctity of private and public contracts. The effect
of the Minnesota legislation, though serious
enough in itself, is of trivial significance compared
with the far more serious and dangerous inroads
upon the limitations of the Constitution which are
almost certain to ensue as a consequence
naturally following any step beyond the
boundaries fixed by that instrument. And those of
us who are thus apprehensive of the effect of this
decision would, in a matter so important, be
neglectful of our duty should we fail to spread
upon the permanent records of the court the
reasons which move us to the opposite view.
A provision of the Constitution, it is hardly

necessary to say, does not admit of two distinctly
opposite interpretations. It does not mean one
thing at one time and an entirely different thing at
another time. If the contract impairment clause,
when framed and adopted, meant that the terms
of a contract for the payment of money could not
be altered . . . by a state statute enacted for the
relief of hardly pressed debtors to the end and
with the effect of postponing payment or
enforcement during and because of an economic
or financial emergency, it is but to state the
obvious to say that it means the same now. This
view, at once so rational in its application to the
written word, and so necessary to the stability of
constitutional principles, though from time to time
challenged, has never, unless recently, been put
within the realm of doubt by the decisions of this
court. . . .
The provisions of the Federal Constitution,

undoubtedly, are pliable in the sense that in
appropriate cases they have the capacity of
bringing within their grasp every new condition
which falls within their meaning. But, their
meaning is changeless; it is only their application
which is extensible. . . .
A statute which materially delays enforcement of

the mortgagee’s contractual right of ownership
and possession does not modify the remedy
merely; it destroys, for the period of delay, all
remedy so far as the enforcement of that right is
concerned. The phrase, “obligation of a contract,”
in the constitutional sense imports a legal duty to
perform the specified obligation of that contract,
not to substitute and perform, against the will of
one of the parties, a different, albeit equally
valuable, obligation. And a state, under the
contract impairment clause, has no more power to
accomplish such a substitution than has one of the
parties to the contract against the will of the
other. It cannot do so either by acting directly
upon the contract, or by bringing about the result
under the guise of a statute in form acting only
upon the remedy. If it could, the efficacy of the
constitutional restriction would, in large measure,
be made to disappear. . . .
I quite agree with the opinion of the court that

whether the legislation under review is wise or
unwise is a matter with which we have nothing to
do. Whether it is likely to work well or work ill
presents a question entirely irrelevant to the
issue. The only legitimate inquiry we can make is
whether it is constitutional. If it is not, its virtues,
if it have any, cannot save it; if it is, its faults
cannot be invoked to accomplish its destruction. If
the provisions of the Constitution be not upheld
when they pinch as well as when they comfort,
they may as well be abandoned. Being unable to
reach any other conclusion than that the
Minnesota statute infringes the constitutional
restriction under review, I have no choice but to
say so.
The Court upheld the Minnesota Mortgage

Moratorium Act because the majority concluded that
the economic emergency justified the state’s use of
extensive police powers. Does the contract clause
retain any vitality under such an interpretation? Or
did the decision in Home Building & Loan Assn.
render it virtually meaningless? After all, there
would be little reason to pass such a statute in good
economic times.
The conditions that prompted passage of the

Minnesota law were repeated when a severe
economic recession and its aftermath gripped the
United States from 2008 to 2012. Again the subject
of mortgages and foreclosures attracted the nation’s
attention. Although this downturn did not match the
catastrophic proportions of the Great Depression,
the nation at one point suffered unemployment rates
in excess of 10 percent, a freeze in the credit
markets, and the collapse of hundreds of banks.
Even after the worst had passed, economic recovery
was exceedingly slow. The loss of the family home
again became one of the greatest fears of Americans
as joblessness sapped many of the ability to meet
their mortgage obligations. Foreclosures
skyrocketed, and the people turned to the
government for relief. The federal government
responded by expanding the monetary supply,
bailing out failing financial institutions, and
pressuring banks to restructure mortgage contracts
to turn back the tide of foreclosures. Because
housing market relief came primarily from the
federal government, contract clause objections did
not become a significant issue. This situation
reminds us that the Constitution bars the states from
impairing the obligation of contracts, but it does not
impose the same restraint on the federal
government.
Modern Applications of the

Contract Clause
For four decades after the decision in Home Building
& Loan Assn., parties challenging state laws rarely
rested their arguments on the contract clause. It
made little practical sense to do so when the justices
were reluctant to use the provision to strike down
state legislation designed to promote the economic
welfare of citizens. Litigants who attempted to
invoke the clause usually were unsuccessful. For
example, in El Paso v. Simmons (1965), the
contract clause was used to attack a Texas statute
governing defaults on land sales agreements with
the state. Consistent with the trend that had begun
with Charles River Bridge more than a century
earlier, the justices turned a deaf ear to the contract
clause claims and upheld the challenged legislation.
The justices made it quite clear that they were not
eager to interfere with the sovereign right of the
state to protect the general welfare of the people
and would give the state legislatures wide discretion
in determining proper public policy over economic
matters. The contract clause, once one of the most
litigated constitutional provisions, had lost much of
its relevance.
To conclude that the contract clause has been

effectively and forever erased from the Constitution
would be incorrect, however. In the decades
following the New Deal, the Court was dominated by
justices who took generally liberal positions on
economic matters. They were philosophically
opposed to allowing business interests to use the
contract clause as a weapon to strike down
legislation benefiting the people at large. But the
Court’s liberal majority began to unravel with the
retirement of Chief Justice Earl Warren and
President Richard Nixon’s appointment of Warren
Burger to replace him in 1969. As succeeding
appointments brought more conservatives to the
Court, prospects brightened for a revitalized
contract clause. This fact was not lost on
enterprising lawyers, who began raising contract
clause issues once again.
In the late 1970s the Court handed down two

decisions that some commentators considered an
indication that the justices might be reviving the
relevance of the contract clause. United States
Trust v. New Jersey (1977) involved a challenge to
legislation passed by the states of New York and
New Jersey authorizing the use of certain Port
Authority revenues to expand mass transportation.
The justices held that in doing so the states violated
the contract clause by breaking a 1962 contractual
promise to investors not to support new transit
operations by spending income previously pledged to
secure existing bonds. The very next year, in Allied
Structural Steel Co. v. Spannaus (1978), the
Court invalidated a Minnesota law that substantially
increased certain corporate financial obligations
under pension plan contracts that were already in
place prior to the statute’s passage. These decisions
signaled the states that they could not alter
contractual obligations with abandon.
The Court articulated a two-step approach to

analyzing modern contract clause claims. First, the
justices will determine the extent to which the
state’s action impairs contractual obligations. In
Justice Potter Stewart’s words in Allied Structural
Steel, “the severity of the impairment measures the
height of the hurdle the state legislation must clear.”
If the impairment is found to be a substantial one,
the Court will then consider the nature and purpose
of the legislation, asking whether the law is drawn in
an “appropriate” and “reasonable” way to advance
“a significant and legitimate public purpose.”5
Additionally, the justices made it clear in United
States Trust that they will be especially skeptical
when a state alters to its advantage the terms of a
contract to which it is a party. These principles
neither return the contract clause to the preferred
position it once enjoyed nor substantially strip it of
its meaning.
5 See also Energy Reserves Group, Inc. v. Kansas

Power and Light Company (1983).
In the years following Allied Structural Steel the

Court has continued to take a moderate approach.
The justices have generally expressed a sensitivity to
the need of the states to use their police powers to
combat social problems. In Energy Reserves
Group, Inc. v. Kansas Power and Light Company
(1983), the justices unanimously upheld a Kansas act
that dictated an energy pricing system in conflict
with existing contracts, holding that even a
substantial impairment can be justified if there is a
significant and legitimate public purpose behind the
regulation, such as remedying a broad and general
social or economic problem.6 In 1987 the justices
upheld a Pennsylvania law that required coal mine
operators to leave 50 percent of the coal in the
ground beneath certain structures to provide surface
support.7 This provision was at odds with contracts
between the mining companies and the landowners
that allowed the companies to extract a much higher
proportion of the coal.
6 See also Exxon Corporation v. Eagerton (1983).
7 Keystone Bituminous Coal Association v.

DeBenedictis (1987).
Sveen v. Melin (2018) provides the most recent

example of the Court’s contemporary treatment of
the contract clause.
Sveen v. Melin 584 U.S. ____ (2018)
1432.html


Roberts, Sotomayor, Thomas)
1 (Gorsuch)
OPINION OF THE COURT: Kagan

DISSENTING OPINION: Gorsuch
Facts:
Under the 2002 Minnesota law challenged here,
the designation of a spouse as a beneficiary on an
insurance policy is automatically revoked upon the
dissolution of the marriage unless the divorce
decree mandates otherwise. As a consequence,
the proceeds of the policy go to a contingent
beneficiary or the policy owner’s estate. The law is
based on the assumption that such action is
consistent with the policy owner’s intent. A policy
owner who does not wish this result must rename
the former spouse as beneficiary. Twenty-six states
have adopted similar default revocation laws.
Prior to the law’s passage, the end of a marriage
did not automatically revoke such beneficiary
designations.
Mark Sveen and Kaye Melin married in 1997. The

next year Sveen purchased a life insurance policy.
He named his wife as beneficiary and his two
children from a previous marriage as contingent
beneficiaries. Sveen held other life insurance
coverage naming his children as primary
beneficiaries. In return Melin owned insurance
coverage with Sveen as beneficiary. The marriage
ended in 2007, and the divorce decree included no
provisions for the insurance policy. Following the
divorce, Sveen took no action to change the
policy’s designated beneficiary. He died in 2011.
Sveen’s children, Ashley and Antoine, claimed the

insurance proceeds. So too did former spouse
Kaye Melin. The Sveen children argued that the
divorce automatically revoked Kaye Melin as the
policy’s beneficiary, making them the rightful
recipients. Melin claimed that her husband’s
designation of a beneficiary occurred prior to the
passage of the Minnesota default law and,
therefore, any retroactive application of that law
to Sveen’s insurance policy would be an
impairment of contracts in violation of the
Constitution’s contract clause.
The federal district court ruled in favor of the

Sveen children, but the court of appeals reversed.
Arguments:
For the petitioners, Ashley and Antoine
Sveen:
The state has sovereign authority over divorce.

The Sveen–Melin divorce occurred after the
enactment of the revocation law.
The law does not interfere with the policy
owner’s contractual right to name a
beneficiary. It only requires the insured to
redesignate the former spouse if so desired.
Even if the law impairs a contractual
obligation, the impairment is not substantial.
For the respondent, Kaye Melin:

The contract clause was originally intended to
be a categorical ban on state-imposed changes
to contractual obligations so that people can
rely on the agreements they have entered.
The Court should restore the original meaning
of the contract clause.
Designating a beneficiary is the primary
purpose of a life insurance contract. The state
has substantially altered that purpose.
The state assumes that upon divorce the policy
owner wants to remove the ex-spouse as
beneficiary. This is often not the case.
Justice Kagan Delivered the Opinion of the

Court.
The Contracts Clause restricts the power of States

to disrupt contractual arrangements. . . . The
origins of the Clause lie in legislation enacted
after the Revolutionary War to relieve debtors of
their obligations to creditors. But the Clause
applies to any kind of contract. See Allied
Structural Steel Co. v. Spannaus (1978). That
includes, as here, an insurance policy.
At the same time, not all laws affecting pre-

existing contracts violate the Clause. See El Paso
v. Simmons (1965). To determine when such a law
crosses the constitutional line, this Court has long
applied a two-step test. The threshold issue is
whether the state law has “operated as a
substantial impairment of a contractual
relationship.” Allied Structural Steel Co. In
answering that question, the Court has considered
the extent to which the law undermines the
contractual bargain, interferes with a party’s
reasonable expectations, and prevents the party
from safeguarding or reinstating his rights. If such
factors show a substantial impairment, the inquiry
turns to the means and ends of the legislation. In
particular, the Court has asked whether the state
law is drawn in an “appropriate” and “reasonable”
way to advance “a significant and legitimate
public purpose.” Energy Reserves Group, Inc. v.
Kansas Power & Light Co. (1983).
Here, we may stop after step one because

Minnesota’s revocation-on-divorce statute does
not substantially impair pre-existing contractual
arrangements. True enough that in revoking a
beneficiary designation, the law makes a
significant change. As Melin says, the “whole
point” of buying life insurance is to provide the
proceeds to the named beneficiary. But three
aspects of Minnesota’s law, taken together, defeat
Melin’s argument that the change it effected
“severely impaired” her ex-husband’s contract.
First, the statute is designed to reflect a
policyholder’s intent—and so to support, rather
than impair, the contractual scheme. Second, the
law is unlikely to disturb any policyholder’s
expectations because it does no more than a
divorce court could always have done. And third,
the statute supplies a mere default rule, which the
policyholder can undo in a moment. Indeed,
Minnesota’s revocation statute stacks up well
against laws that this Court upheld against
Contracts Clause challenges as far back as the
early 1800s. We now consider in detail each of the
features that make this so.
To begin, the Minnesota statute furthers the

policyholder’s intent in many cases—indeed, the
drafters reasonably thought in the typical one. . . .
[L]egislatures have long made judgments about a
decedent’s likely testamentary intent after large
life changes—a marriage, a birth, or a divorce.
And on that basis, they have long enacted statutes
revoking earlier-made wills by operation of law.
Legislative presumptions about divorce are now
especially prevalent—probably because they
accurately reflect the intent of most divorcing
parties. Although there are exceptions, most
divorcees do not aspire to enrich their former
partners. . . .
And even when presumed and actual intent

diverge, the Minnesota law is unlikely to upset a
policyholder’s expectations at the time of
contracting. That is because an insured cannot
reasonably rely on a beneficiary designation
remaining in place after a divorce. . . . [D]ivorce
courts have wide discretion to divide property
between spouses when a marriage ends. The
house, the cars, the sporting equipment are all up
for grabs. And (what matters here) so too are the
spouses’ life insurance policies, with their
beneficiary provisions. Although not part of the
Sveen-Melin divorce decree, they could have been;
as Melin acknowledges, they sometimes are. Melin
counters that the Contracts Clause applies only to
legislation, not to judicial decisions. That is true,
but of no moment. The power of divorce courts
over insurance policies is relevant here because it
affects whether a party can reasonably expect a
beneficiary designation to survive a marital
breakdown. . . .
Finally, a policyholder can reverse the effect of the
Minnesota statute with the stroke of a pen. The
law puts in place a presumption about what an
insured wants after divorcing. But if the
presumption is wrong, the insured may overthrow
it. And he may do so by the simple act of sending a
change-of-beneficiary form to his insurer. That
action restores his former spouse to the position
she held before the divorce—and in so doing,
cancels the state law’s operation. . . .
In cases going back to the 1800s, this Court has

held that laws imposing such minimal paperwork
burdens do not violate the Contracts Clause. . . .
For those reasons, we reverse the judgment of the

Court of Appeals and remand the case for further
It is so ordered.
JUSTICE GORSUCH, dissenting.

Minnesota’s statute automatically alters life
insurance policies upon divorce to remove a
former spouse as beneficiary. Everyone agrees
that the law is valid when applied prospectively to
policies purchased after the statute’s enactment.
But Minnesota wants to apply its law retroactively
to policies purchased before the statute’s
adoption. The Court of Appeals held that this
violated the Contracts Clause, which guarantees
people the “right to ‘rely on the law . . . as it
existed when the[ir] contracts were made.’” That
judgment seems to me exactly right.
Because legislation often disrupts existing social
arrangements, it usually applies only
prospectively. This longstanding and “sacred”
principle ensures that people have fair warning of
the law’s demands. . . .
When it comes to legislation affecting contracts,

the Constitution hardens the presumption of
prospectivity into a mandate. The Contracts
Clause categorically prohibits states from passing
“any . . . Law impairing the Obligation of
Contracts.” . . . [T]he framers were absolute. They
took the view that treating existing contracts as
“inviolable” would benefit society by ensuring that
all persons could count on the ability to enforce
promises lawfully made to them—even if they or
their agreements later prove unpopular with some
passing majority. Sturges v. Crowninshield (1819).
The categorical nature of the Contracts Clause

was not lost on anyone, either. When some
delegates at the Constitutional Convention sought
softer language, James Madison acknowledged the
“‘inconvenience’” a categorical rule could
sometimes entail “‘but thought on the whole it
would be overbalanced by the utility of it.’” During
the ratification debates, these competing positions
were again amply aired. Antifederalists argued
that the proposed Clause would prevent states
from passing valuable legislation. Federalists like
Madison countered that the rule of law permitted
“property rights and liberty interests [to] be
dissolved only by prospective laws of general
applicability.” And, of course, the people chose to
ratify the Constitution—categorical Clause and all.
For much of its history, this Court construed the
Contracts Clause in this light. The Court explained
that any legislative deviation from a contract’s
obligations, “however minute, or apparently
immaterial,” violates the Constitution. Green v.
Biddle (1823). . . .
More recently, though, the Court has charted a

different course. Our modern cases permit a state
to “substantial[ly] impai[r]” a contractual
obligation in pursuit of “a significant and
legitimate public purpose” so long as the
impairment is “‘reasonable.’” Energy Reserves
Group, Inc. v. Kansas Power & Light Co. (1983).
That test seems hard to square with the
Constitution’s original public meaning. After all,
the Constitution does not speak of “substantial”
impairments—it bars “any” impairment. . . .
Even under our modern precedents, though, I still

do not see how the statute before us might survive
unscathed . . .
Start with the substantial impairment question.

No one pays life insurance premiums for the joy of
it. Or even for the pleasure of knowing that the
insurance company will eventually have to cough
up money to someone. As the Court concedes, the
choice of beneficiary is the “‘whole point.’” So
when a state alters life insurance contracts by
undoing their beneficiary designations it surely
“substantially impairs” them . . .
Cases like ours illustrate the point. Kaye Melin

testified that, despite their divorce, she and the
decedent, Mark Sveen, agreed (repeatedly) to
keep each other as the primary beneficiaries in
their respective life insurance policies. Ms. Melin
noted that they adopted this arrangement not only
because they remained friends but because they
paid the policy premiums from their joint checking
account. Of course, we don’t know for sure
whether removing Ms. Melin as beneficiary undid
Mr. Sveen’s true wishes. . . . But what we do know
is the retroactive removal of Ms. Melin undid the
central term of the contract Mr. Sveen signed and
left in place for years, even after his divorce, until
the day he died. . . .
The judicial power to declare a law

unconstitutional should never be lightly invoked.
But the law before us cannot survive an encounter
with even the breeziest of Contracts Clause tests.
It substantially impairs life insurance contracts by
retroactively revising their key term. No one can
offer any reasonable justification for this
impairment in light of readily available
alternatives. Acknowledging this much doesn’t
even require us to hold the statute invalid in all
applications, only that it cannot be applied to
contracts formed before its enactment. I
Decisions such as Sveen v. Melin have signaled

potential litigants that a successful challenge of a
state law on contract clause ground, although more
likely today than in the years immediately following
the New Deal, remains a difficult task. As a
consequence, parties wishing to defend private
property rights against state regulation have turned
to other constitutional provisions for possible relief.
Frequently, the Fourteenth Amendment’s due
process clause and the Fifth Amendment’s takings
clause have served as vehicles for such challenges.
These subjects are addressed in Chapters 10 and 11.
Annotated Readings
A number of important works have examined the
historical evolution of the contract clause and how it
contributes to the general protection of property
rights. Among such volumes is Bruce Ackerman,
Private Property and the Constitution (New Haven,
CT: Yale University Press, 1977); James W. Ely, Jr.,
The Contract Clause: A Constitutional History
(Lawrence: University Press of Kansas, 2016); James
W. Ely, Property Rights in American History (New
York: Garland, 1997); Kermit L. Hall, ed., Law,
Economy, and the Power of Contract: Major
Historical Interpretations (New York: Garland,
1987); Morton J. Horowitz, The Transformation of
American Law, 1780–1860 (Cambridge, MA: Harvard
University Press, 1977); Warren B. Hunting, The
Obligation of Contracts Clause of the United States
Constitution (Baltimore, MD: Johns Hopkins
University Press, 1919); Harry N. Scheiber, ed., The
State and Freedom of Contract (Stanford, CA:
Stanford University Press, 1999); and Benjamin F.
Wright, The Contract Clause of the Constitution
Other works have focused on specific landmark
rulings by the U.S. Supreme Court or the
contributions to the Court’s contract clause
jurisprudence by specific justices. Examples are
Morgan D. Dowd, “Justice Story, the Supreme Court,
and the Obligation of Contract,” Case Western
Reserve Law Review 19 (1968): 493–527; John A.
Fliter and Derek S. Hoff, Fighting Foreclosure: The
Blaisdell Case, the Contract Clause, and the Great
Depression (Lawrence: University Press of Kansas,
2012); Horace H. Hagin, “Fletcher vs. Peck,”
Georgetown Law Journal 16 (November 1927): 1–40;
Charles F. Hobson, The Great Yazoo Lands Sale: The
Case of Fletcher v. Peck (Lawrence: University Press
of Kansas, 2016); Nathan Isaacs, “John Marshall on
Contracts: A Study in Early American Juristic
Theory,” Virginia Law Review 7 (March 1921): 413–
428; Stanley I. Kutler, Privilege and Creative
Destruction: The Charles River Bridge Case
(Philadelphia, PA: J.B. Lippincott, 1971); C. Peter
Magrath, Yazoo: Law and Politics in the New
Republic (Providence, RI: Brown University Press,
1966); and Francis N. Stites, Private Interest and
Public Gain: The Dartmouth College Case, 1819
(Amherst: University of Massachusetts Press, 1972).
Chapter Ten Economic
Substantive Due Process
The concept of due process of law has a long history

in Anglo American law. Its roots can be traced to
England’s Magna Carta of 1215, and it became an
explicit right under a 1354 British law guaranteeing
that “No man . . . shall be put out of his lands or
tenements nor taken, nor disinherited, nor put to
death, without he be brought to answer by due
process of law.” The American colonists considered
the concept a fundamental one, and the phrase can
be found in legal documents of the early American
states.
Not surprisingly the due process guarantee was

included in the Bill of Rights ratified in 1791 as a
protection against actions of the federal government.
The language of the Fifth Amendment reads: “No
person shall . . . be deprived of life, liberty or
property, without due process of law.” In 1868, in the
aftermath of the Civil War, similar language
explicitly applying to the states was included in the
Fourteenth Amendment.
But what does the due process guarantee mean? The

terminology is vague, and its definition is not self-
evident. As the following example illustrates, two
different interpretations have been advanced.
Suppose that federal and state agents receive a tip
that the owners of a factory are violating the federal
law that prohibits the employment of children
younger than sixteen. Without stopping to obtain a
search warrant or other authorization, the agents
enter the factory and observe that underage
employees are indeed working there. The agents
arrest the factory owners. Based on evidence
collected by the investigators, a court convicts the
owners of violating child labor laws and imposes a
heavy fine. But the owners challenge their conviction
on two similarly named, but distinct, grounds—
procedural due process and substantive due process.
Citing the first ground, the factory owners allege

that the procedure the agents used to obtain
evidence against them—entering the factory without
a warrant—violated guarantees in the Constitution,
including sections of the Fifth and Fourteenth
Amendments that prohibit government from
depriving persons of “life, liberty, or property,
without due process of law.” For many observers, the
term due process is synonymous with procedural
fairness. The American system of justice is based on
the idea that even people guilty of violating the law
deserve fair treatment. This particular
characterization of due process, known as
procedural due process, is the most traditional and
widely accepted use of the term. The government
must proceed in fair ways if it is to convict an
individual of a crime or otherwise deprive that
person of life, liberty, or property. Evidence must be
gathered according to prescribed procedures, and
trials must take place following established rules of
procedural fairness. Unless this procedural due
process standard is met, a conviction cannot be
sustained.
What is the second ground on which the factory

owners base their appeal? None other than due
process of law. Under this approach, due process
means more than just adhering to fair procedures.
Instead, the due process clauses are seen as
guaranteeing certain substantive rights. This theory,
known as substantive due process, holds that the
Constitution is violated when government
unreasonably or arbitrarily denies rights that are
inherent in the freedom of the individual. In our
example, the factory owners might argue that the
law prohibiting child labor violates due process
guarantees by unreasonably infringing on their
freedom to do business and arbitrarily abridging
their right to enter into employment agreements
with willing workers. In their view, the child labor
law cannot stand because it is inherently not just
and not fair, and the Constitution requires that the
substance of the law must be just and must not
unfairly deprive persons of their life, liberty, or
property.
In this chapter we examine the development and

decline of the substantive due process doctrine. We
shall see that in the modern era the Supreme Court
has made it exceedingly difficult to challenge laws
governing economic relationships on substantive due
process grounds. But for approximately forty years,
from the 1890s through the 1930s, the Court read
due process in substantive terms and used the
principle to strike down many laws that allegedly
infringed on economic rights.
If economic substantive due process is now a

generally discredited doctrine, why do we devote an
entire chapter to it? There are several reasons. First,
its rise and fall from the Court’s grace constitutes an
intriguing part of legal history. The adoption of
substantive due process came about gradually and
resulted from the push and pull of the legal and
political environment of the day.
Second, looking at substantive due process provides

us an opportunity to revisit the concept of judicial
activism. During the latter half of the twentieth
century, that term was most often associated with
liberalism, with Courts that overturned restrictive
government laws and practices, such as those
requiring racial segregation of public facilities or
prohibiting seditious speech. But the justices from
the 1890s to the 1930s actively used the substantive
due process doctrine to impose their conservative
ideology on American society. The Court overturned
many laws that legislatures passed to regulate
businesses for the common good. As a consequence,
substantive due process became associated with the
Court’s strong support of business interests.
Third, the topic of substantive due process offers a
way to reexamine the cycles of history we have
already discussed. As depicted in Table 10-1,
substantive due process was an additional weapon in
the Court’s laissez-faire arsenal. While it was using
delegation of power doctrines (Chapter 5), the Tenth
Amendment (Chapter 6), the commerce clause
(Chapter 7), and taxing and spending provisions
(Chapter 8) to strike down federal regulations of
business, the Court also invoked substantive due
process to rule against similar legislation passed by
the states. This use was particularly ironic because
at the time the Court was espousing notions of dual
federalism, it was striking down federal regulations
on the grounds they encroached on powers reserved
to the states. In other words, the Court found ways
to strike down all sorts of economic regulation, even
though, in so doing, it often took contradictory
stances. Therefore, substantive due process provides
a way to tie together much of what we have already
covered in this book.
Table 10-1
Finally, the doctrine of substantive due process

retains some relevance today. We continue to
observe decisions in which the Court finds specific
rights to be protected even though the Constitution
makes no explicit reference to those rights. Instead,
the justices conclude that certain personal liberties
are embedded in the concept of due process of law.
One such right is the constitutionally guaranteed
right to privacy, although the document makes no
explicit mention of that right. Rather, the justices
have concluded that when government arbitrarily
violates a person’s privacy it deprives that person of
liberty without due process of law. Contemporary
justices also have extended the reach of due process
to protect against excessive jury awards and to
preserve the integrity of the courts by prohibiting
judges from ruling on cases in which they may have
a conflict of interest.
We consider the contemporary uses of substantive

due process in more detail at the end of this chapter,
but first we review the doctrine’s development
chronologically—how it came to be, why the Court
embraced it, and what led to its decline.
Development of Substantive
Due Process
In general terms, prior to the adoption of the
Fourteenth Amendment, judges interpreted due
process guarantees contained in the Fifth
Amendment and in state constitutions as procedural
in intent and nature. As historian Kermit L. Hall
observed, “Before the Civil War [due process] had
essentially one meaning”—that people were
“entitled” to fair and orderly proceedings,
particularly in criminal proceedings.1
1 Kermit L. Hall, The Magic Mirror (New York:

Oxford University Press, 1989), 232.
There were some exceptions. Writing in Scott v.

Sandford (excerpted in Chapter 6), Chief Justice
Roger Taney invoked the specter of due process to
strike government interference in “property rights”:
An act of Congress which deprives a citizen of
the United States of his liberty or property [a
slave], merely because he came himself or
brought his property into a particular Territory .
. . could hardly be dignified with the name of due
process of law.
Around the same time, a New York court in

Wynehamer v. People (1856) invoked a substantive
interpretation of the state’s due process requirement
in striking down an alcohol prohibition law. It
asserted that due process guarantees “prohibit,
regardless of the matter of procedure, a certain kind
or degree of exertion of legislative power altogether”
and that the “substantive content of legislation” is
covered, not simply the protection of the “mode of
procedure.”
But decisions such as Wynehamer represented the

exception, not the rule. Neither state court judges
interpreting their due process clauses nor their
federal court counterparts treating the Fifth
Amendment read them to possess a substantive right
and, therefore, a bar on interventionist government
legislation. Rather, they viewed them through a
procedural lens, and for good reason: it was simply
unclear whether the due process clauses were meant
to have substance.
The Fourteenth Amendment’s
Due Process Clause: Initial
Interpretation
The social ills that flowed from the nation’s post–
Civil War transition from an agrarian to an industrial
economy prompted state legislatures to consider
new regulations on commerce, but business interests
feared that increased regulation would inevitably
lead to a reduction in corporate profits. With the
decline of the contract clause as a defense against
state interference with business, it is not surprising
that corporate interests looked to other parts of the
Constitution for protection. They saw the due
process clause of the newly ratified Fourteenth
Amendment as particularly promising. Business
advocates began arguing that unreasonable state
limitations on the freedom of individuals to conduct
their commercial activities as they so desired
constituted a deprivation of liberty and property
The Slaughterhouse Cases (1873) reveal that the

Supreme Court initially did not agree with this
probusiness interpretation of the Fourteenth
Amendment. The majority gave rather short shrift to
the due process argument, devoting most of its
opinion to other issues. However, some of the
dissenters found considerable merit in what the
business community proposed. As you read this
decision, pay careful attention to Justice Joseph P.
Bradley’s dissent, as it sets the tone for many
majority opinions that follow.
The Slaughterhouse Cases (Butchers’ Benevolent

Association v. Crescent City Livestock Landing &
Slaughter House Company) 83 U.S. (16 Wall.) 36
(1873)
court/83/36.html
Vote: 5 (Clifford, Davis, Hunt, Miller, Strong)
4 (Bradley, Chase, Field, Swayne)
OPINION OF THE COURT: Miller

DISSENTING OPINIONS: Bradley, Field,
Swayne
Facts:
After the Civil War, the United States experienced
a great increase in industrialization accompanied
by economic diversification that touched the
entire country. Along with the benefits of
economic and industrial expansion came some
negative side effects. In Louisiana the state
legislature claimed that the Mississippi River had
become polluted because New Orleans butchers
dumped discarded animal parts and other garbage
into it. To remedy this problem (or, as some have
suggested, to use it as an excuse to create a
monopolistic enterprise), the legislature created
the Crescent City Livestock Landing & Slaughter
House Company to receive and slaughter all city
livestock for twenty-five years.
Because butchers were forced to use the company

facilities and to pay top dollar for the privilege,
they formed their own organization, the Butchers’
Benevolent Association, and hired an attorney,
former U.S. Supreme Court justice John A.
Campbell, to sue the corporation and the state. In
his arguments, Campbell sought to apply the
Thirteenth and Fourteenth Amendments to the
butchers’ cause.
Arguments:
For the plaintiffs in error, the Butchers’
Benevolent Association:
The rights included in the Thirteenth and

Fourteenth Amendments apply to all
Americans.
Americans have the freedom to engage in any
useful business or occupation and a right to
the income that flows from their efforts.
By forcing the butchers to use the state-
created slaughterhouse monopoly, Louisiana
violates the Thirteenth Amendment’s
prohibition against involuntary servitude.
The state’s actions regulate the butchers well
beyond what is customary for that occupation,
denying them the right to pursue a traditional
and beneficial trade. This, contrary to the
Fourteenth Amendment, deprives the butchers
of their privileges and immunities as U.S.
citizens, denies them their property without
due process of law, and fails to accord them
equal protection of the law.
No condition of public health necessitated the
creation of the monopoly.

of Louisiana:
The law does not deny butchers the right to
practice their profession. It only requires them
to have their livestock slaughtered at the
Crescent City slaughterhouse facilities.
The first section of the Fourteenth Amendment
has no meaning except for persons of African
descent. The privileges and immunities clause
applies only to political privileges, such as the
right to vote or hold office.
The police power extends to all subjects within
the state’s territorial boundaries. That power
has never been conceded to the federal
government.
The police power clearly applies to the
elimination of unhealthy or infectious articles
or activities.
Mr. Justice Miller, Now, April 14th, 1873,

Delivered the Opinion of the Court.
This court is . . . called upon for the first time to

give construction to [the Thirteenth, Fourteenth,
and Fifteenth Amendments]. . . .
We do not conceal from ourselves the great
responsibility which this duty devolves upon us.
No questions so far reaching and pervading in
their consequences, so profoundly interesting to
the people of this country, and so important in
their bearing upon the relations of the United
States and of the several states to each other, and
to the citizens of the states, and of the United
States, have been before this court during the
official life of any of its present members. . . .
The most cursory glance at these articles discloses

a unity of purpose, when taken in connection with
the history of the times, which cannot fail to have
an important bearing on any question of doubt
concerning their true meaning. . . . Nor can such
doubts, when any reasonably exist, be safely and
rationally solved without a reference to that
history; for in it is found the occasion and the
necessity for recurring again to the great source
of power in this country, the people of the states,
for additional guaranties of human rights;
additional powers to the Federal government;
additional restraints upon those of the states.
Fortunately that history is fresh within the
memory of us all, and its leading features, as they
bear upon the matter before us, free from doubt.
The institution of African slavery, as it existed in

about half the states of the Union, and the
contests pervading the public mind for many
years, between those who desired its curtailment
and ultimate extinction and those who desired
additional safeguards for its security and
perpetuation, culminated in the effort, on the part
of most of the states in which slavery existed, to
separate from the Federal government, and to
resist its authority. This constituted the War of the
Rebellion, and whatever auxiliary causes may
have contributed to bring about this war,
undoubtedly the overshadowing and efficient
cause was African slavery. . . .
. . . [I]n the light of this recapitulation of events,

almost too recent to be called history, but which
are familiar to us all, and on the most casual
examination of the language of these
amendments, no one can fail to be impressed with
the one pervading purpose found in them all, lying
at the foundation of each, and without which none
of them would have been even suggested; we
mean the freedom of the slave race, the security
and firm establishment of that freedom, and the
protection of the newly made freeman and citizen
from the oppressions of those who had formerly
exercised unlimited dominion over him. It is true
that only the fifteenth amendment, in terms,
mentions the negro by speaking of his color and
his slavery. But it is just as true that each of the
other articles was addressed to the grievances of
that race, and designed to remedy them as the
fifteenth.
We do not say that no one else but the negro can

share in this protection. Both the language and
spirit of these articles are to have their fair and
just weight in any question of construction.
Undoubtedly while negro slavery alone was in the
mind of the Congress which proposed the
thirteenth article, it forbids any other kind of
slavery, now or hereafter. . . . But what we do say,
and what we wish to be understood, is that, in any
fair and just construction of any section or phrase
of these amendments, it is necessary to look to the
purpose which we have said was the pervading
spirit of them all, the evil which they were
designed to remedy, and the process of continued
addition to the Constitution, until that purpose
was supposed to be accomplished as far as
constitutional law can accomplish it. . . .
[The Fourteenth Amendment], which is the one

mainly relied on by the plaintiffs in error, speaks
only of privileges and immunities of citizens of the
United States, and does not speak to those of
citizens of the several States. The argument,
however, in favor of the plaintiffs rests wholly on
the assumption that the citizenship is the same,
and the privileges and immunities guaranteed by
the clause are the same.
The language is: “No state shall make or enforce

any law which shall abridge the privileges or
immunities of citizens of the United States.” . . .
Fortunately, we are not without judicial

construction of this clause of the Constitution. The
first and the leading case on the subject is that of
Corfield v. Coryell, decided by Mr. Justice
Washington in the Circuit Court for the District of
Pennsylvania in 1823.
“The inquiry,” he says, “is, what are the privileges

and immunities of citizens of the several states?
We feel no hesitation in confining these
expressions to those privileges and immunities
which are fundamental; which belong of right to
the citizens of all free governments, and which
have at all times been enjoyed by citizens of the
several states which compose this Union, from the
time of their becoming free, independent, and
sovereign. What these fundamental principles are,
it would be more tedious than difficult to
enumerate. They may all, however, be
comprehended under the following general heads:
protection by the government, with the right to
acquire and possess property of every kind, and to
pursue and obtain happiness and safety, subject,
nevertheless, to such restraints as the government
may prescribe for the general good of the whole.”
...
In the case of Paul v. Virginia [1869], the court, in

expounding this clause of the Constitution, says
that the privileges and immunities secured to
citizens of each State in the several States by the
provision in question are those privileges and
immunities which are common to the citizens in
the latter States under the constitution and laws
by virtue of their being citizens. . . .
. . . [W]e may hold ourselves excused from

defining the privileges and immunities of citizens
of the United States which no State can abridge
until some case involving those privileges may
make it necessary to do so.
But lest it should be said that no such privileges

and immunities are to be found if those we have
been considering are excluded, we venture to
suggest some which owe their existence to the
Federal government, its national character, its
Constitution, or its laws.
One of these is well described in the case of
Crandall v. Nevada [1868]. It is said to be the right
of the citizen of this great country, protected by
implied guarantees of its Constitution, to come to
the seat of government to assert any claim he may
have upon that government, to transact any
business he may have with it, to seek its
protection, to share its offices, to engage in
administering its functions. He has the right of
free access to its seaports, through which
operations of foreign commerce are conducted, to
the sub-treasuries, land offices, and courts of
justice in the several States. . . .
Another privilege of a citizen of the United States

is to demand the care and protection of the
Federal government over his life, liberty, and
property when on the high seas or within the
jurisdiction of a foreign government. Of this there
can be no doubt, nor that the right depends upon
his character as a citizen of the United States. The
right to peaceably assemble and petition for
redress of grievances, the privilege of the writ of
habeas corpus, are rights of the citizen
guaranteed by the Federal Constitution. The right
to use the navigable waters of the United States,
however they may penetrate the territory of the
several States, all rights secured to our citizens by
treaties with foreign nations, are dependent upon
citizenship of the United States, and not
citizenship of a State. One of these privileges is
conferred by the very article under consideration.
It is that a citizen of the United States can, of his
own volition, become a citizen of any State of the
Union by a bona fide residence therein, with the
same rights as other citizens of that State. To
these may be added the rights secured by the
thirteenth and fifteenth articles of amendment,
and by the other clause of the fourteenth, next to
be considered.
But it is useless to pursue this branch of the

inquiry, since we are of opinion that the rights
claimed by these plaintiffs in error, if they have
any existence, are not privileges and immunities of
citizens of the United States within the meaning of
the clause of the fourteenth amendment under
consideration.
“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
state, wherein they reside. No state shall
make or enforce any law which shall abridge
the privileges or immunities of citizens of the
United States, nor shall any state deprive any
person of life, liberty or property without due
process of law, nor deny to any person within
its jurisdiction the equal protection of the
laws.”
The argument has not been much pressed in these

cases that the defendant’s charter deprives the
plaintiffs of their property without due process of
law, or that it denies to them the equal protection
of the law. The first of these paragraphs has been
in the Constitution since the adoption of the 5th
Amendment, as a restraint upon the Federal
power. It is also to be found in some form of
expression in the constitutions of nearly all the
states, as a restraint upon the power of the states.
This law, then, has practically been the same as it
now is during the existence of the government,
except so far as the present Amendment may
place the restraining power over the states in this
matter in the hands of the Federal government.
We are not without judicial interpretation,

therefore, both state and national, of the meaning
of this clause. And it is sufficient to say that under
no construction of that provision that we have
ever seen, or any that we deem admissible, can
the restraint imposed by the state of Louisiana
upon the exercise of their trade by the butchers of
New Orleans be held to be a deprivation of
property within the meaning of that provision.
“Nor shall any state deny to any person within its

jurisdiction the equal protection of the laws.”
In the light of the history of these amendments,

and the pervading purpose of them, . . . it is not
difficult to give a meaning to this clause. The
existence of laws in the states where the newly
emancipated negroes resided, which
discriminated with gross injustice and hardship
against them as a class, was the evil to be
remedied by this clause, and by it such laws are
forbidden.
If, however, the states did not conform their laws

to its requirements, then by the 5th section of the
article of amendment Congress was authorized to
enforce it by suitable legislation. We doubt very
much whether any action of a state not directed
by way of discrimination against the negroes as a
class, or on account of their race, will ever be held
to come within the purview of this provision. It is
so clearly a provision for that race and that
emergency, that a strong case would be necessary
for its application to any other. But as it is a state
that is to be dealt with, and not alone the validity
of its laws, we may safely leave that matter until
Congress shall have exercised its power, or some
case of state oppression, by denial of equal justice
in its courts, shall have claimed a decision at our
hands. We find no such case in the one before us,
and we do not deem it necessary to go over the
argument again, as it may have relation to this
particular clause of the Amendment.
In the early history of the organization of the

government, its statesmen seem to have divided
on the line which should separate the powers of
the national government from those of the state
governments, and though this line has never been
very well defined in public opinion, such a division
has continued from that day to this.
The adoption of the first eleven amendments to

the Constitution so soon after the original
instrument was accepted shows a prevailing sense
of danger at that time from the Federal power and
it cannot be denied that such a jealousy continued
to exist with many patriotic men until the breaking
out of the late Civil War. It was then discovered
that the true danger to the perpetuity of the Union
was in the capacity of the state organizations to
combine and concentrate all the powers of the
state, and of contiguous states, for a determined
resistance to the general government.
Unquestionably this has given great force to the
argument, and added largely to the number of
those who believe in the necessity of a strong
national government.
But, however pervading this sentiment, and

however it may have contributed to the adoption
of the Amendments we have been considering, we
do not see in those Amendments any purpose to
destroy the main features of the general system.
Under the pressure of all the excited feeling
growing out of the war, our statesmen have still
believed that the existence of the states with
powers for domestic and local government,
including the regulation of civil rights, the rights
of person and of property, was essential to the
perfect working of our complex form of
government, though they have thought proper to
impose additional limitations on the states, and to
confer additional power on that of the nation.
But whatever fluctuations may be seen in the

history of public opinion on this subject during the
period of our national existence, we think it will be
found that this court, so far as its functions
required, has always held, with a steady and an
even hand, the balance between state and Federal
power, and we trust that such may continue to be
the history of its relation to that subject so long as
it shall have duties to perform which demand of it
a construction of the Constitution, or of any of its
parts.
The judgments of the Supreme Court of Louisiana

in these cases are affirmed.
MR. JUSTICE FIELD, dissenting.
The question presented is . . . one of the gravest
importance, not merely to the parties here, but to
the whole country. It is nothing less than the
question whether the recent Amendments to the
Federal Constitution protect the citizens of the
United States against the deprivation of their
common rights by state legislation. In my
judgment the 14th Amendment does afford such
protection, and was so intended by the Congress
which framed and the states which adopted it. . . .
The provisions of the Fourteenth Amendment,

which is properly a supplement to the thirteenth,
cover, in my judgment, the case before us, and
inhibit any legislation which confers special and
exclusive privileges like these under
consideration. The Amendment was adopted to
obviate objections which had been raised and
pressed with great force to the validity of the civil
rights act, and to place the common rights of the
American citizens under the protection of the
National government. It first declares that “all
persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they
reside.” It then declares that “No state shall make
or enforce any law which shall abridge the
privileges or immunity of citizens of the United
States, nor shall any state deprive any person of
life, liberty or property, without due process of
law, nor deny to any person within its jurisdiction
the equal protection of the laws.” . . .
The first clause of the fourteenth Amendment . . .
removes it from the region of discussion and
doubt. It recognizes in express terms, if it does not
create, citizens of the United States, and it makes
their citizenship dependent upon the place of their
birth, or the fact of their adoption, and not upon
the Constitution or laws of any state or the
condition of their ancestry. A citizen of a state is
now only a citizen of the United States residing in
that state. The fundamental rights, privileges, and
immunities which belong to him as a free man and
a free citizen, now belong to him as a citizen of
the United States, and are not dependent upon his
citizenship of any state. The exercise of these
rights and privileges, and the degree of enjoyment
received from such exercise, are always more or
less affected by the condition and the local
institutions of the state, or city, or town where he
resides. They are thus affected in a state by the
wisdom of its laws, the ability of its officers, the
efficiency of its magistrates, the education and
morals of its people, and by many other
considerations. This is a result which follows from
the constitution of society, and can never be
avoided, but in no other way can they be affected
by the action of the state, or by the residence of
the citizen therein. They do not derive their
existence from its legislation, and cannot be
destroyed by its power. . . .
. . . [G]rants of exclusive privileges, such as is

made by the act in question, are opposed to the
whole theory of free government, and it requires
no aid from any bill of rights to render them void.
That only is a free government, in the American
sense of the term, under which the inalienable
right of every citizen to pursue his happiness is
unrestrained, except by just, equal, and impartial
laws.
MR. JUSTICE BRADLEY,

dissenting.
The [Fourteenth] Amendment . . . prohibits any
state from depriving any person (citizen or
otherwise) of life, liberty or property, without due
process of law.
In my view, a law which prohibits a large class of

citizens from adopting a lawful employment, or
from following a lawful employment previously
adopted, does deprive them of liberty as well as
property, without due process of law. Their right of
choice is a portion of their liberty; their
occupation is their property. Such a law also
deprives those citizens of the equal protection of
the laws, contrary to the last clause of the section.
The constitutional question is distinctly raised in

these cases; the constitutional right is expressly
claimed; it was violated by state law, which was
sustained by the state court, and we are called
upon in a legitimate and proper way to afford
redress. Our jurisdiction and our duty are plain
and imperative.
It is futile to argue that none but persons of the

African race are intended to be benefited by this
Amendment. They may have been the primary
cause of the Amendment, but its language is
general, embracing all citizens, and I think it was
purposely so expressed.
The mischief to be remedied was not merely

slavery and its incidents and consequences; but
that spirit of insubordination and disloyalty to the
national government which had troubled the
country for so many years in some of the states,
and that intolerance of free speech and free
discussion which often rendered life and property
insecure, and led to much unequal legislation. The
Amendment was an attempt to give voice to the
strong national yearning for that time and that
condition of things, in which American citizenship
should be a sure guaranty of safety, and in which
every citizen of the United States might stand
erect in every portion of its soil, in the full
enjoyment of every right and privilege belonging
to a freeman, without fear of violence or
molestation.
But great fears are expressed that this

construction of the Amendment will lead to
enactments by Congress interfering with the
internal affairs of the states, and establishing
therein civil and criminal codes of law for the
government of the citizens, and thus abolishing
the state governments in everything but name; or
else, that it will lead the Federal courts to draw to
their cognizance the supervision of state tribunals
on every subject of judicial inquiry, on the plea of
ascertaining whether the privileges and
immunities of citizens have not been abridged.
In my judgment no such practical inconveniences

would arise. Very little, if any, legislation on the
part of Congress would be required to carry the
Amendment into effect. Like the prohibition
against passing a law impairing the obligation of a
contract, it would execute itself. The point would
be regularly raised in a suit at law, and settled by
final reference to the Federal Court. As the
privileges and immunities protected are only those
fundamental ones which belong to every citizen,
they would soon become so far defined as to cause
but a slight accumulation of business in the
Federal Courts. Besides, the recognized existence
of the law would prevent its frequent violation.
But even if the business of the national courts
should be increased, Congress could easily supply
the remedy by increasing their number and
efficiency. The great question is: what is the true
construction of the Amendment? When once we
find that, we shall find the means of giving it
effect. The argument from inconvenience ought
not to have a very controlling influence in
questions of this sort. The national will and
national interest are of far greater importance.
In my opinion the judgment of the Supreme Court

of Louisiana ought to be reversed.
The Slaughterhouse opinions are noteworthy for

several reasons. First, it was ironic that the first
major case asking the Court to interpret the
Fourteenth Amendment was brought by whites, not
African Americans. This irony did not escape Justice
Samuel Miller, who relied on history to stress the
true purpose of the amendment—to protect the
former slaves and to refute Campbell’s basic
position. Next, Miller methodically refuted the
constitutional arguments offered by the butchers.
Miller spent most of his energy on the primary claim
of privileges and immunities (truly emasculating the
clause), but he also flatly rejected the due process
clause claim.2 “Under no construction of that
provision that we have ever seen, or any that we
deem admissible,” Miller wrote, “can the restraint
imposed by the state of Louisiana upon the exercise
of their trade by the butchers of New Orleans be
held to be a deprivation of property within the
meaning of that provision.” Why did Miller take such
a hard-line position? In large measure, he did so
because he did not want to see the Court become a
“superlegislature,” a censor on what states could
and could not do.
2 The Court’s complete rejection of the privileges

and immunities argument in The Slaughterhouse
Cases rendered it almost meaningless. Only of late
have the courts begun to breathe new relevance into
the clause. The Supreme Court relied on a privileges
and immunities rationale to strike down the
application of excessively long residency
requirements before newcomers became eligible for
state welfare benefits (see Saenz v. Roe [1999]).
The Court viewed these requirements as
unreasonable restrictions on the freedom of
interstate travel, a right the justices found to be
protected by the privileges and immunities clause.
The Beginning of Substantive
Due Process: The Court Opens a
Window
Miller’s opinion in Slaughterhouse and Bradley’s and
Field’s dissents are clear statements of the justices’
initial positions on the substantive due process
question. Indeed, the Miller and Bradley-Field
opinions are considered to represent the epitome of
opposing views on the subject. It was Miller’s view,
however, that, for the moment, carried the day—
there was no substance in due process. Given the
terse language of his opinion, we might suspect that
it closed the book on the subject forever. But that
was not the case. Miller observed just five years
later,
It is not a little remarkable, that while [due

process] has been in the Constitution . . . as a
restraint upon the authority of the Federal
government, for nearly a century . . . its powers
ha[d] rarely been invoked in the judicial forum or
the more enlarged theatre of public discussion.
But while it has been a part of the Constitution,
as a restraint upon the power of the States, only
a very few years, the docket of this court is
crowded with cases in which we are asked to
hold that State courts and State legislatures
have deprived their own citizens of life, liberty,
or property without due process of law. There is
here abundant evidence that there exists some
strange misconception of the scope of this
provision as found in the fourteenth
amendment.3
3 Davidson v. New Orleans (1878).
Why was it necessary for Miller to write this? Had

not Slaughterhouse eradicated the notion of the
Fourteenth Amendment’s due process clause as a
prohibition of state economic regulation?
It had, but that did not prevent attorneys,

representing desperate business interests, from
continuing to make substantive due process
arguments. From the lawyers’ perspective, the
current environment held promise for the eventual
adoption of such arguments, and they advanced
several theories that echoed Bradley’s dissenting
position in Slaughterhouse. One was expressed in
Thomas M. Cooley’s influential Constitutional
Limitations, first published in 1868, which singled
out the word liberty within the due process clause as
an important constitutional right. The protection of
this right, in Cooley’s eyes, required a substantive
reading of the Fourteenth Amendment, which, in
turn, would serve as a mechanism for protecting
property rights and for restricting government
regulation. Cooley’s theory was specific, but Herbert
Spencer offered a more general view. Called social
Darwinism, it treated social evolution in the same
terms that Charles Darwin used to explain biological
evolution: if government simply maintained order
and protected property rights and otherwise left
people alone, the “fittest” would survive and
succeed; if government attempted to intrude in other
ways, then those other than the “fittest” also would
survive, which would have a detrimental effect on
society in the long term. This proposition had a
natural compatibility with laissez-faire economic
theories: if government leaves business alone, the
best will prosper. Interpreting the Fifth and
Fourteenth Amendments in substantive due process
terms would prohibit a great deal of government
interference with business activity.
But perhaps the most important factor contributing

to the vitality of substantive due process was the
Court itself. Social Darwinism may have influenced
some scholars, the social elite, and business, but
most Americans did not buy its tenets. If they had,
states would not have kept on trying to regulate
businesses, as the public would have demanded
policies of noninterference. But they did continue. To
a large extent, the crowded docket to which Miller
referred was the Court’s own doing.
In the late nineteenth century, grain elevators, used

to store grain until it was sold, were a common sight
on the Chicago River. Ira Munn and George Scott’s
grain elevators (at right) were among the most
successful, until Munn’s corrupt business practices
brought the industry under government scrutiny.
Library of Congress
An important, and certainly vivid, example of how

the Court encouraged substantive due process
arguments came in Munn v. Illinois. This decision cut
both ways: the Court upheld the state’s regulation
but provided enough of a loophole for clever
attorneys to exploit later. What was that loophole?
One way to answer this question is to reconsider
Miller’s opinion in Slaughterhouse as you read
Munn. Do you spot any differences?
Munn v. Illinois 94 U.S. 113 (1877)
court/94/113.html
Vote: 7 (Bradley, Clifford, Davis, Hunt, Miller,
Swayne, Waite)
2 (Field, Strong)
OPINION OF THE COURT: Waite

DISSENTING OPINION: Field
Facts:
The rise of industrialization affected much of the
nation, but its impact on the city of Chicago was
monumental. Because of its status as an important
trading post, particularly for the grain market,
Chicago was becoming the “New York of the
West.”4 Grain produced by farmers in the Midwest
flowed into Chicago to be shipped to merchants
throughout the United States. As a result, grain
storage developed as a lucrative industry in
Chicago. Typically, until grain was sold and
shipped, companies stored it in warehouses that
looked like huge skyscrapers. These warehouses
were called grain elevators because of the way the
grain was mechanically loaded into them by
systems of dump baskets fastened to conveyor
belts.
4 We adapt this discussion largely from C. Peter

Magrath’s “The Case of the Unscrupulous
Warehouseman,” in Garraty, Quarrels That Have
Shaped the Constitution.
A dozen or more grain storage companies sprang

up in Chicago. Among the most successful was
Munn & Scott, co-owned by Ira Munn and George
Scott. They started with one warehouse with a
capacity of 8,000 bushels of grain, and within a
few short years they were overseeing an
enterprise with four elevators and a storage
capacity of 2,700,000 bushels. They were, in short,
very successful entrepreneurs.
Despite their success, Munn and Scott (along with

many others) engaged in fraudulent business
practices. They charged exorbitantly high fees,
mixed inferior grain with superior grain, and
engaged in price-fixing with other companies. As
these abuses became more obvious, farmers and
merchants pleaded with city officials to regulate
the industry. After several ineffective attempts by
a local board to do so, the state—under continued
pressure from farmers’ organizations, known as
the Granger movement—in 1871 enacted a law
that included provisions establishing boards to
regulate the maximum rates grain elevators could
charge, among other aspects of the business. The
state justified the law as compatible with its
constitution, which specified that public
warehouses were subject to regulation. The state
of Illinois charged Munn and Scott with violating
the law shortly after it went into effect. They were
found guilty and fined $100. On appeal they
challenged the constitutionality of the regulations.
Munn & Scott later went into bankruptcy amid
allegations of ethical and professional violations.
Arguments:
For the plaintiffs in error, Ira Y. Munn
and George L. Scott:
The grain storage business is part of interstate
and foreign commerce. Therefore, states lack
constitutional authority to regulate it.
The law encroaches on the liberty of private
property in violation of the due process clause
of the Fourteenth Amendment.
Valid uses of the police power include
regulations to keep the peace, to improve
public morality, and to remove the causes of
crime, disease, and pauperism—not to control
wages and prices.
The law unreasonably and arbitrarily deprives
the company of its freedom to carry on its
business activities. The company is not a
public utility over which regulation traditionally
has been allowed.

of Illinois:
These state regulations apply to local
businesses, not interstate or foreign
commerce.
As part of its authority over internal commerce,
the state has the power to regulate and inspect
grain stored in public warehouses.
The law does not deprive property rights
without due process of law. The owner may still
use his property as he sees fit.
The importance of food to the community is so
great that the grain elevator business becomes
similar to a public utility or a public employer.
Therefore, these businesses may be more
extensively regulated than other private
businesses.
Mr. Chief Justice Waite Delivered the Opinion
of the Court.
The question to be determined in this case is

whether the General Assembly of Illinois can,
under the limitations upon the legislative power of
the States imposed by the Constitution of the
United States, fix by law the maximum of charges
for the storage of grain in warehouses at Chicago
and other places in the State having not less than
one hundred thousand inhabitants, “in which grain
is stored in bulk, and in which the grain of
different owners is mixed together, or in which
grain is stored in such a manner that the identity
of different lots or parcels cannot be accurately
preserved.”
It is claimed that such a law is repugnant— . . .
To that part of amendment 14 which ordains that

no State shall “Deprive any person of life, liberty
or property, without due process of law, nor deny
to any person within its jurisdiction the equal
protection of the laws.” . . .
The Constitution contains no definition of the word

“deprive,” as used in the Fourteenth Amendment.
To determine its signification, therefore, it is
necessary to ascertain the effect which usage has
given it, when employed in the same or a like
connection.
While this provision of the Amendment is new in
the Constitution of the United States as a
limitation upon the powers of the States, it is old
as a principle of civilized government. It is found
in Magna Charta, and, in substance if not in form,
in nearly or quite all the constitutions that have
been from time to time adopted by the several
States of the Union. By the 5th Amendment, it was
introduced into the Constitution of the United
States as a limitation upon the powers of the
National Government, and by the Fourteenth, as a
guaranty against any encroachment upon an
acknowledged right of citizenship by the
Legislatures of the States. . . .
When one becomes a member of society, he

necessarily parts with some rights or privileges
which, as an individual not affected by his
relations to others, he might retain. “A body
politic,” as aptly defined in the preamble of the
Constitution of Massachusetts, is a social compact
by which the whole people covenants with each
citizen, and each citizen with the whole people,
that all shall be governed by certain laws for the
common good. This does not confer power upon
the whole people to control rights which are
purely and exclusively private; but it does
authorize the establishment of laws requiring each
citizen to so conduct himself, and so use his own
property, as not unnecessarily to injure another.
This is the very essence of government. . . . From
this source come the police powers, which, as was
said by Mr. Chief Justice Taney in the License
Cases, are nothing more or less than the powers of
government inherent in every sovereignty, . . . that
is to say, . . . the power to govern men and things.
Under these powers, the government regulates
the conduct of its citizens one towards another,
and the manner in which each shall use his own
property, when such regulation becomes
necessary for the public good. In their exercise, it
has been customary in England from time
immemorial, and in this country from its first
colonization, to regulate ferries, common carriers,
hackmen, bakers, millers, wharfingers,
innkeepers, &c., and, in so doing, to fix a
maximum of charge to be made for services
rendered, accommodations furnished, and articles
sold. To this day, statutes are to be found in many
of the States upon some or all these subjects; and
we think it has never yet been successfully
contended that such legislation came within any of
the constitutional prohibitions against
interference with private property. . . .
From this it is apparent that, down to the time of

the adoption of the Fourteenth Amendment, it was
not supposed that statutes regulating the use, or
even the price of the use, of private property
necessarily deprived an owner of his property
without due process of law. Under some
circumstances they may, but not under all. The
Amendment does not change the law in this
particular; it simply prevents the States from
doing that which will operate as such a
deprivation.
This brings us to inquire as to the principles upon

which this power of regulation rests, in order that
we may determine what is within and what
without its operative effect. Looking, then, to the
common law, from whence came the right which
the Constitution protects, we find that when
private property is “affected with a public interest,
it ceases to be juris privati only.” . . . Property
does become clothed with a public interest when
used in a manner to make it of public
consequence, and affect the community at large.
When, therefore, one devotes his property to a use
in which the public has an interest, he, in effect,
grants to the public an interest in that use, and
must submit to be controlled by the public for the
common good, to the extent of the interest he has
thus created. He may withdraw his grant by
discontinuing the use; but, so long as he maintains
the use, he must submit to the control. . . .
. . . [W]hen private property is devoted to a public

use, it is subject to public regulation. It remains
only to ascertain whether the warehouses of these
plaintiffs in error, and the business which is
carried on there, come within the operation of this
principle.
For this purpose, we accept as true the statements

of fact contained in the elaborate brief of one of
the counsel of the plaintiffs in error. From this it
appears that “ . . . the trade in grain is carried on
by the inhabitants of seven or eight of the great
States of the West with four or five of the States
lying on the seashore, and forms the largest part
of interstate commerce in these States. The grain
warehouses or elevators in Chicago are immense
structures, holding from 300,000 to 1,000,000
bushels at one time, according to size. They are
divided into bins of large capacity and great
strength. . . . They are located with the river
harbor on one side and the railway tracks on the
other; and the grain is run through them from car
to vessel, or boat to car, as may be demanded in
the course of business. It has been found
impossible to preserve each owner’s grain
separate, and this has given rise to a system of
inspection and grading, by which the grain of
different owners is mixed, and receipts issued for
the number of bushels which are negotiable, and
redeemable in like kind, upon demand. This mode
of conducting the business was inaugurated more
than twenty years ago, and has grown to immense
proportions. The railways have found it
impracticable to own such elevators, and public
policy forbids the transaction of such business by
the carrier; the ownership has, therefore, been by
private individuals, who have embarked their
capital and devoted their industry to such
business as a private pursuit.” . . .
Under such circumstances it is difficult to see why,

if the common carrier, or the miller, or the
ferryman, or the innkeeper, or the wharfinger, or
the baker, or the cartman, or the hackney-
coachman, pursues a public employment and
exercises “a sort of public office,” these plaintiffs
in error do not. They stand, to use again the
language of their counsel, in the very “gateway of
commerce,” and take toll from all who pass. Their
business most certainly “tends to a common
charge, and is become a thing of public interest
and use.” Every bushel of grain for its passage
“pays a toll, which is a common charge,” and,
therefore . . . every such warehouseman “ought to
be under public regulation, viz.: that he . . . take
but reasonable toll.” Certainly, if any business can
be clothed “with a public interest, and cease to be
juris privati only,” this has been. It may not be
made so by the operation of the Constitution of
Illinois or this statute, but it is by the facts. . . .
We conclude, therefore, that the statute in

question is not repugnant to the Constitution of
the United States, and that there is no error in the
judgment. In passing upon this case we have not
been unmindful of the vast importance of the
questions involved. This and cases of a kindred
character were argued before us more than a year
ago by the most eminent counsel, and in a manner
worthy of their well earned reputations. We have
kept the cases long under advisement, in order
that their decision might be the result of our
mature deliberations.
MR. JUSTICE FIELD . . .

dissented.
I am compelled to dissent from the decision of the
court in this case, and from the reasons upon
which that decision is founded. The principle upon
which the opinion of the majority proceeds is, in
my judgment, subversive of the rights of private
property, heretofore believed to be protected by
constitutional guaranties against legislative
interference, and is in conflict with the authorities
cited in its support. . . .
By the term “liberty,” as used in the [Fourteenth

Amendment to the Constitution], something more
is meant than mere freedom from physical
restraint or the bounds of a prison. It means
freedom to go where one may choose, and to act
in such manner, not inconsistent with the equal
rights of others, as his judgment may dictate for
the promotion of his happiness; that is, to pursue
such callings and avocations as may be most
suitable to develop his capacities, and give to
them their highest enjoyment.
The same liberal construction which is required

for the protection of . . . liberty . . . should be
applied to the protection of private property. If the
legislature of a State, under pretense of providing
for the public good, or for any other reason, can
determine, against the consent of the owner, the
uses to which private property shall be devoted, or
the prices which the owner shall receive for its
uses, it can deprive him of the property as
completely as by a special act for its confiscation
or destruction. If, for instance, the owner is
prohibited from using his building for the
purposes for which it was designed, it is of little
consequence that he is permitted to retain the
title and possession; or, if he is compelled to take
as compensation for its use less than the expenses
to which he is subjected by its ownership, he is,
for all practical purposes, deprived of the
property, as effectually as if the legislature had
ordered his forcible dispossession. If it be
admitted that the legislature has any control over
the compensation, the extent of that compensation
becomes a mere matter of legislative discretion.
The amount fixed will operate as a partial
destruction of the value of the property, if it fall
below the amount which the owner would obtain
by contract, and, practically, as a complete
destruction, if it be less than the cost of retaining
its possession. There is, indeed, no protection of
any value under the constitutional provision,
which does not extend to the use and income of
the property, as well as to its title and possession.
...
There is nothing in the character of the business

of the defendants as warehousemen which called
for the interference complained of in this case.
Their buildings are not nuisances; their
occupation of receiving and storing grain infringes
upon no rights of others, disturbs no
neighborhood, infects not the air, and in no
respect prevents others from using and enjoying
their property as to them may seem best. The
legislation in question is nothing less than a bold
assertion of absolute power by the State to control
at its discretion the property and business of the
citizen, and fix the compensation he shall receive.
The will of the legislature is made the condition
upon which the owner shall receive the fruits of
his property and the just reward of his labor,
industry, and enterprise. “That government,” says
Story, “can scarcely be deemed to be free where
the rights of property are left solely dependent
upon the will of a legislative body without any
restraint. The fundamental maxims of a free
government seem to require that the rights of
personal liberty and private property should be
held sacred.” The decision of the court in this case
gives unrestrained license to legislative will.
To return to our question, what was the loophole in

Chief Justice Morrison Waite’s opinion? Like Justice
Miller in The Slaughterhouse Cases, Waite seemed
to reject substantive due process completely,
asserting that most regulatory legislation should be
presumed valid. The ruling provoked strong
reaction. The American Bar Association, which was
then a newly formed organization and full of
business-oriented attorneys, pronounced it
“barbarous” and vowed to see it overturned.5 Also
consider the statement in Justice Stephen J. Field’s
acrimonious dissent, which largely reflected
Bradley’s in Slaughterhouse: the law was “nothing
less than a bold assertion of absolute power by the
State to control at its discretion the property and
business of the citizen.” So it is not surprising that
Waite’s majority opinion “has generally been
regarded as a great victory for liberalism and a
judicial refusal to recognize due process as a limit on
the substance of legislative regulatory power.”6
5 Pritchett, The American Constitution, 558.
6 Ibid., 557.
But is that description precise? Not exactly. Although

Waite could have taken the same approach as Miller
in Slaughterhouse—the complete rejection of the
due process claim—he did not. Instead, Waite
qualified his opinion, asserting first that state
regulations of private property were “not supposed”
to deprive owners of their right to due process, but
that “under some circumstances they may.” What
differentiated “some circumstances” from others? In
Waite’s opinion, the answer lay in the nature of the
subject of the regulation: “We find that when private
property is ‘affected with a public interest it ceases
to be [of private right] only.’” Waite used this
doctrine, often called the business-affected-with-a-
public-interest (BAPI) doctrine, to find against
Munn’s claim. The grain elevator business played a
crucial role in the distribution of foodstuffs to the
nation; as such, it was an industry that was affected
with the public interest and consequently subject to
regulation.
In dissent, Justice Field charged that the BAPI test

provided businesses inadequate protection against
government regulation: “There is hardly an
enterprise or business engaging the attention and
labor of any considerable portion of the community,
in which the public has not an interest in the sense
in which that term is used by the court.” Yet Waite’s
opinion, perhaps unwittingly, provided a loophole for
lawyers representing business clients who were
unhappy with state regulation. The opinion implied
that businesses not affected with the public interest
could raise a due process defense against what their
owners perceived to be unreasonable state
regulation. By avoiding a hard-line stance of the sort
taken by Miller in Slaughterhouse, Waite’s “maybe
yes, maybe no” approach ultimately provided some
elbow room for the concept of substantive due
process.
In two cases coming a decade or so after Munn, the
Court moved closer to the concession only implied
by Waite. In the first, Mugler v. Kansas (1887), the
Court considered a state law that prohibited the
manufacture and sale of liquor. Although the
majority upheld the regulation against a substantive
due process challenge, the Court’s opinion
represented something of a break from Munn. First,
it articulated the view that not “every statute
enacted ostensibly for the promotion of [the public
interest] is to be accepted as a legitimate exertion of
police powers of the state.” This opinion was far
more explicit than Waite’s: there were clear limits to
state regulatory power. Second, and more important,
it took precisely the opposite position from the
majority in Slaughterhouse. Recall that Justice Miller
wanted to avoid the Court’s being placed in the
position of a “superlegislature,” scrutinizing and
perhaps censoring state action. But in Mugler, that
is precisely what the Court said it would do:
There are . . . limits beyond which legislation

cannot rightfully go. . . . If, therefore, a statute
purporting to have been enacted to protect the
public health, the public morals, or the public
safety, has no real or substantial relation to those
objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty of
the courts to so adjudge [our italics], and
thereby give effect to the Constitution.
In Mugler the Court did not fully adopt the doctrine
of substantive due process; it even upheld the state
regulation on liquor. It also established its intent to
review legislation to determine whether it was a
“reasonable” exercise of state power. In essence, the
Court would balance the interests of the state
against those of individual due process guarantees.
The legislation tested in Mugler was deemed

reasonable, but in Chicago, Milwaukee & St. Paul
Railway v. Minnesota (1890), decided three years
after Mugler, the Court went the other way: the
justices struck down a state regulation on the
ground that it interfered with due process
guarantees. At first glance, Chicago, Milwaukee &
St. Paul Railway bears a distinct resemblance to
Munn v. Illinois. Strong lobbying efforts by farm
groups led Minnesota in 1887 to establish a
commission to set “equal and reasonable” rates for
railroad transportation of goods and for warehouse
storage. The commission received a complaint that
the Chicago, Milwaukee & St. Paul Railway Company
was charging dairy farmers unreasonable rates to
ship their milk. It held hearings to investigate the
claim and ruled against the railroad. When the
company refused to abide by the ruling and reduce
its rates, the commission went to the state supreme
court. In the opinion of that tribunal, the
commission’s enabling legislation intended that the
rates it “recommended and published” were to be
“not simply advisory . . . but final and conclusive as
to what are equal and reasonable charges.” The
railroad took its case to the U.S. Supreme Court,
where it argued that the commission had interfered
with “its property” without providing it with due
process of law.
Writing for the majority, Justice Samuel Blatchford

held for the railroad on two grounds, both centering
on the Fourteenth Amendment’s due process clause.
Procedurally, he found the law—at least as construed
by the state supreme court—defective. Because
courts could not review the rates the commission
set, the law deprived the railroad of a certain degree
of fairness. On this point, the Court took a
“traditional” approach to due process, asserting that
“procedural safeguards” must be “attached to public
expropriations of private property.”7 But Blatchford
did not stop there; instead, he examined the law in
terms of the reasonableness standard promulgated
in Mugler: “The question of the reasonableness of a
rate of charge for transportation by a railroad
company . . . is eminently a question for judicial
investigation, requiring due process of law for its
determination.”
7 Hall, The Magic Mirror, 236.
Blatchford found the law deprived the company of its

property in an unfair way:
If the company is deprived of the power of

charging reasonable rates . . . and such
deprivation takes place in the absence of an
investigation by judicial machinery, it is deprived
of the lawful use of its property, and thus, in
substance and effect, of the property itself,
The Chicago, Milwaukee & St. Paul Railway case

was not all that extraordinary: it merely applied the
standard articulated in Mugler, a standard that
obviously cut both ways. Sometimes the Court, in its
attempt to inquire (balance interests), would find a
law a “reasonable” use of state power (Mugler), and
sometimes it would find it violative of substantive
due process guarantees, as it did here. But this case
and, to a lesser extent, Mugler were remarkable if
we consider how different they were from
Slaughterhouse. Over a fourteen-year period, the
Court had moved from a refusal to inject substance
into due process to a near affirmation of the doctrine
of substantive due process; it had moved from the
assertion that it would not become a censor to the
argument that judicial inquiry was necessary, if not
mandated, by the Constitution. And although, as we
shall see, it did not fully endorse Thomas Cooley’s
position defining due process “liberty” in economic
terms until seven years later, Blatchford’s ruling laid
the groundwork for exactly that.
This change in position prompts us to ask why the

Court did such a turnabout over two decades. The
most obvious answer is personnel changes. By the
time the Court decided Mugler, only one member of
the Slaughterhouse majority, Miller, remained, but
the primary dissenters, Bradley and Field, also
remained. By 1890 Miller also was gone, as was
Chief Justice Waite, who, despite the loophole in the
Munn opinion, generally favored state regulatory
power. Their replacements were quite different.
Some had been corporate attorneys schooled in the
philosophies of Cooley and Spencer and quite willing
to borrow from the briefs of their former colleagues
who argued against state regulation. Justice David J.
Brewer, who replaced Stanley Matthews, a
moderate-conservative states’ rights advocate, had
refused to follow Munn as a court of appeals judge.
It is not surprising that many eagerly awaited the
Chicago, Milwaukee & St. Paul Railway decision to
see how the Court’s membership changes might
affect the direction of this area of the law.8 Given the
backgrounds of the new appointees, it also is not
surprising that the views of the Slaughterhouse
dissenters—especially Field and Bradley—ruled the
day.
8 See Arnold M. Paul, Conservative Crisis and the

Rule of Law (Ithaca, NY: Cornell University Press,
1960), 42.
But there may have been more to it. By asserting the

standard it did, the Court was engaging in extreme
judicial activism. As Peter Woll noted,
By substituting its judgment for that of state
legislators in determining the fairness of
regulations of property and liberty under the due
process clause of the Fourteenth Amendment,
the Court was acting contrary to the public
opinion that spurred state regulation. Political
pressures upon state legislatures throughout the
country had resulted in laws regulating business
which courts were unwilling to sustain.9
9 Peter Woll, Constitutional Law (Englewood Cliffs,

NJ: Prentice Hall, 1981), 486.
It seems fair to say that the justices did not see it

this way. Rather, they viewed these “political
pressures” as just that—as particularized, radical,
“socialistic” elements that did not reflect majority
interests. If that was their perception, it had a solid
foundation. Some legislation had resulted from the
lobbying efforts of farm and labor movements and
later, as we shall see, of the Progressives and New
Dealers. In the minds of many conservatives of the
day, including some of the justices, such pressures
were illegitimate because they sought to subvert the
free enterprise system. In short, while the Populists,
Progressives, and New Dealers—in the opinion of
conservatives—tried to put the brakes on businesses
and inculcate the government with socialistic
legislation, the conservatives strongly believed that
the best interests of the country lay with “an utterly
free market, unfettered by governmental
regulation.” This, not the plans of radicals, would be
more advantageous to society in the long run
because in the end all would benefit financially.
A fundamental change was in the wind, and many

commentators identify the Court’s decision in
Allgeyer v. Louisiana (1897) as the turning point.
What did the Court say here that it had not fully
articulated in Mugler and Chicago, Milwaukee & St.
Paul Railway?
Allgeyer v. Louisiana 165 U.S. 578 (1897)
court/165/578.html
Vote: 9 (Brewer, Brown, Field, Fuller, Gray,

Harlan, Peckham, Shiras, White)
OPINION OF THE COURT: Peckham
Facts:
With the alleged purpose of preventing fraud,
Louisiana enacted a law that barred its citizens
and corporations from doing business with out-of-
state insurance companies unless the companies
complied with a specified set of requirements.
Among those requirements were that any out-of-
state company doing business in Louisiana must
establish a place of business in the state and must
have an authorized agent inside the state. Defying
the law, E. Allgeyer & Company entered into an
agreement with Atlantic Mutual Insurance
Company of New York to purchase marine
insurance covering one hundred bales of cotton
being shipped from New Orleans to European
ports. During the transactions, no employee of
Atlantic Mutual entered Louisiana. The
negotiations between the insurance company and
Allgeyer took place by mail and telegraph. Atlantic
Mutual was not registered to do business in
Louisiana. State prosecutors pursued fines against
Allgeyer for violating the law. Rather than deny
what it had done, Allgeyer defended itself by
challenging the constitutionality of the Louisiana
law.
Arguments:
For the plaintiff in error, E. Allgeyer &
Company:
This regulation is a naked, unauthorized, and

unreasonable invasion of liberty.
The law violates the due process clause of the
Fourteenth Amendment by denying liberty and
property arbitrarily. The terms liberty and
property protect the right to conduct any lawful
vocation or business, including the freedom to
make contractual agreements with whatever
insurer a company wishes.
With respect to this insurance policy, no
business was conducted in Louisiana except for
the use of the mail and telegraph. Louisiana
therefore has no regulatory authority over this
transaction.
By prohibiting Allgeyer’s use of the mail to do
business, the state infringes on the
constitutional authority of the federal
government to create a postal system. By
similarly prohibiting the use of the telegraph,
the state infringes on the federal government’s
authority over interstate commerce.

of Louisiana:
The final contractual provisions for the amount
of insurance coverage and the insurance
premium were not determined until the cotton
was loaded onto the ship in New Orleans.
Therefore, contractual activity did take place in
Louisiana.
Under its police powers a state may enforce
requirements for out-of-state corporations to
conduct business inside the state.
The state’s police powers rest on its
sovereignty. This principle is unquestioned.
The Fourteenth Amendment has no bearing on
the exercise of state police powers to protect
the state’s citizens against fraudulent practices
by out-of-state companies.
Mr. Justice Peckham, After Stating the Case,

Delivered the Opinion of the Court.
The question presented is the simple proposition

whether under the act a party while in the state
can insure property in Louisiana in a foreign
insurance company, which has not complied with
the laws of the state, under an open policy, the
special contract or insurance and the open policy
being contracts made and entered into beyond the
limits of the state. . . .
It is natural that the state court should have

remarked that there is in this “statute an apparent
interference with the liberty of defendants in
restricting their rights to place insurance on
property of their own whenever and in what
company they desired.” Such interference is not
only apparent, but it is real, and we do not think
that it is justified for the purpose of upholding
what the state says is its policy with regard to
foreign insurance companies which had not
complied with the laws of the state for doing
business within its limits. In this case the company
did no business within the state, and the contracts
were not therein made.
The supreme court of Louisiana says that the act

of writing, within that state, the letter of
notification, was an act therein done to effect an
insurance on property then in the state, in a
marine insurance company which had not
complied with its laws, and such act was therefore
prohibited by the statute. As so construed we
think the statute is a violation of the 14th
Amendment of the Federal Constitution, in that it
deprives the defendants of their liberty without
due process of law. The statute which forbids such
act does not become due process of law, because it
is inconsistent with the provisions of the
Constitution of the Union. The liberty mentioned
in that amendment means, not only the right of
the citizen to be free from the mere physical
restraint of his person, as by incarceration, but
the term is deemed to embrace the right of the
citizen to be free in the enjoyment of all his
faculties; to be free to use them in all lawful ways;
to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any
livelihood or avocation, and for that purpose to
enter into all contracts which may be proper,
necessary, and essential to his carrying out to a
successful conclusion the purposes above
mentioned.
It was said by Mr. Justice Bradley in Butchers’

Union S. H. & L. S. L. Co. v. Crescent City L. S. L.
& S. H. Co. [Slaughterhouse Cases], in the course
of his concurring opinion in that case, that “the
right to follow any of the common occupations of
life is an inalienable right. It was formulated as
such under the phrase ‘pursuit of happiness’ in
the Declaration of Independence, which
commenced with the fundamental proposition that
‘all men are created equal, that they are endowed
by their Creator with certain inalienable rights;
and among these are life, liberty, and the pursuit
of happiness.’ This right is a large ingredient in
the civil liberty of the citizen.” Again, the learned
justice said: “I hold that the liberty of pursuit—the
right to follow any of the ordinary callings of life—
is one of the privileges of a citizen of the United
States.” And again, “But if it does not abridge the
privileges and immunities of a citizen of the
United States to prohibit him from pursuing his
chosen calling, and giving to others the exclusive
right of pursuing it, it certainly does deprive him,
to a certain extent, of his liberty; for it takes from
him the freedom of adopting and following the
pursuit which he prefers; which, as already
intimated, is a material part of the liberty of the
citizen.” It is true that these remarks were made
in regard to questions of monopoly, but they well
describe the rights which are covered by the word
“liberty” as contained in the 14th Amendment. . . .
The foregoing extracts have been made for the

purpose of showing what general definitions have
been given in regard to the meaning of the word
“liberty” as used in the amendment, but we do not
intend to hold that in no such case can the state
exercise its police power. When and how far such
power may be legitimately exercised with regard
to these subjects may be left for determination to
each case as it arises.
Has not a citizen of a state, under the provisions

of the Federal Constitution above mentioned, a
right to contract outside of the state for insurance
on his property—a right of which state legislation
cannot deprive him? We are not alluding to acts
done within the state by an insurance company or
its agents doing business therein, which are in
violation of the state statutes . . . and would be
controlled by it. When we speak of the liberty to
contract for insurance or to do an act to effectuate
such a contract already existing, we refer to and
have in mind the facts of this case, where the
contract was made outside the state, and as such
was a valid and proper contract. The act done
within the limits of the state under the
circumstances of this case and for the purpose
therein mentioned, we hold a proper act, one
which the defendants were at liberty to perform
and which the state legislature had no right to
prevent, at least with reference to the Federal
Constitution. To deprive the citizen of such a right
as herein described without due process of law is
illegal. Such a statute as this in question is not
due process of law, because it prohibits an act
which under the Federal Constitution the
defendants had a right to perform. This does not
interfere in any way with the acknowledged right
of the state to enact such legislation in the
legitimate exercise of its police or other powers as
to it may seem proper. In the exercise of such
right, however, care must be taken not to infringe
upon those other rights of the citizen which are
protected by the Federal Constitution.
In the privilege of pursuing an ordinary calling or

trade and of acquiring, holding, and selling
property must be embraced the right to make all
proper contracts in relation thereto, and although
it may be conceded that this right to contract in
relation to persons or property or to do business
within the jurisdiction of the state may be
regulated and sometimes prohibited when the
contracts or business conflict with the policy of
the state as contained in the statutes, yet the
power does not and cannot extend to prohibiting
the citizen from making contracts of the nature
involved in this case outside of the limits and
jurisdiction of the state, and which are also to be
performed outside of such jurisdiction; nor can the
state legally prohibit its citizens from doing such
an act as writing this letter of notification, even
though the property which is the subject of the
insurance may at the time when such insurance
attaches be within the limits of the state. The
mere fact that a citizen may be within the limits of
a particular state does not prevent his making a
contract outside its limits while he himself
remains within it. The contract in this case was
thus made. It was a valid contract, made outside
of the state, to be performed outside of the state,
although the subject was property temporarily
within the state. As the contract was valid in the
place where made and where it was to be
performed, the party to the contract upon whom is
devolved the right or duty to send the notification
in order that the insurance provided for by the
contract may attach to the property specified in
the shipment mentioned in the notice, must have
the liberty to do that act and to give that
notification within the limits of the state, any
prohibition of the state statute to the contrary
notwithstanding.
Justice Rufus W. Peckham’s opinion is not so

different from the majority’s opinion in Chicago,
Milwaukee & St. Paul Railway. It struck down the
state law in part on the ground that the law was not
reasonable. But Peckham went much farther. By
merging substantive due process with freedom of
contract, by reading the term liberty to mean
economic liberty, encompassing the right to “enter
into all contracts,” he issued a strong opinion. He
adopted the position that businesses had been
pressing since the demise of the contract clause as a
source of protection. Now their right to do business
—to set their own rates and enter into contracts with
other businesses and perhaps even with employees—
had the highest level of legal protection. In just
under twenty-five years, business interests had
pushed the Court from Slaughterhouse, in which it
refused to review state legislation for its
compatibility with due process guarantees, to Munn,
in which legislation was presumed valid generally
but was open to judicial inquiry into its
“reasonableness.” The Court then moved from
balancing state interests with individual interests
(Chicago, Milwaukee & St. Paul Railway) to placing
state regulations in a less exalted position than the
fundamental liberty of contract (Allgeyer).
The Roller-Coaster Ride of

Substantive Due Process: 1898–
1923
However explicit Allgeyer was, the true test of its
importance would come in its application. Some
observers read it to mean that the Court would not
uphold legislation that infringed on economic
“liberty,” but Holden v. Hardy, decided the very
next year, dispelled this notion. In Holden the Court
examined a Utah law prohibiting companies engaged
in the excavation of mines from working their
employees more than eight hours a day, except in
emergency situations. Attorneys challenging the law
claimed,
It is . . . not within the power of the legislature to
prevent persons who are . . . perfectly competent
to contract, from entering into employment and
voluntarily making contracts in relation thereto
merely because the employment . . . may be
considered by the legislature to be dangerous or
injurious to the health of the employee; and if
such right to contract cannot be prevented, it
certainly cannot be restricted by the legislature
to suit its own ideas of the ability of the
employee to stand the physical and mental strain
incident to the work.
The state asserted that the challenged statute was a

“health regulation” and within the state’s power
because it was aimed at “preserving to a citizen his
ability to work and support himself.”
After Joseph Lochner, the owner of a bakery located

in Utica, New York, was convicted of failing to
comply with a state maximum-work-hours law, he
asked the U.S. Supreme Court to strike down the law
as violative of his constitutional rights. In Lochner v.
New York (1905), the justices agreed. The majority
found that the law impermissibly interfered with the
right of employers to enter into contracts with their
employees.
Collection of Joseph Lochner Jr by Dante
Tranquille
Collection of Joseph Lochner Jr by Dante

Tranquille
In Holden the Court reiterated its Mugler position:

“The question in each case is whether the legislature
has adopted the statute in exercise of a reasonable
discretion or whether its actions be a mere excuse
for an unjust discrimination.” The Supreme Court,
now acting as the nation’s “superlegislature,”
deemed the legislation “reasonable”; that is, it did
not impinge on the liberty of contract because the
state had well justified its interest in protecting
miners from their jobs’ unique health problems and
dangerous conditions.
Holden was a victory for the still-forming

Progressive movement and emerging labor groups,
which were vigorously lobbying state legislatures to
pass laws to protect workers. With the nation’s
increasing industrialization, they argued, the need
for such laws was becoming critical because
corporations were ever more profit oriented and, as
a result, more likely to exploit employees. Although
they succeeded in convincing many state legislatures
to enact laws like Utah’s, the possibility that courts
would strike them down remained a threat.
The Holden ruling, however, took on a different gloss

once the Court decided Lochner v. New York (1905).
Although the law at issue varied only slightly from
Utah’s, the justices reached a wholly different
conclusion. Why? Does the case fit compatibly with
the logic of Holden, as Justice Peckham implies, or
does it reveal the true reach of his ruling in
Allgeyer?
Lochner v. New York 198 U.S. 45 (1905)
court/198/45.html
Vote: 5 (Brewer, Brown, Fuller, McKenna,

Peckham)
4 (Day, Harlan, Holmes, White)
OPINION OF THE COURT: Peckham

DISSENTING OPINIONS: Harlan, Holmes
Facts:
In 1897 the state of New York, for purposes of
promoting safe and healthy working conditions,
passed the Bakeshop Act, a law that prohibited
employees of bakeries from working more than
ten hours per day and sixty hours per week.
Joseph Lochner owned Lochner’s Home Bakery in
Utica, New York. In 1899 he was convicted of
violating the Bakeshop Act by requiring an
employee to work more than sixty hours a week.
He was fined $25. Two years later Lochner was
charged with his second offense of overworking
his employees. Once again found guilty, he was
sentenced to a fine of $50 or fifty days in jail if he
failed to pay the fine. This time Lochner decided
to fight the charges and appealed. After he lost in
the state’s highest court, he asked the Supreme
Court to reverse his conviction on the ground that
the Bakeshop Act violated the due process clause
of the Fourteenth Amendment.
Arguments:
For the plaintiff in error, Joseph
Lochner:
The law violates the equal protection clause of
the Fourteenth Amendment because it does
not apply to all bakers, but singles out biscuit,
bread, and cake bakers and those working in
the confection business. It fails to cover bakery
owners or those who bake in hotels,
boardinghouses, and private homes. If the law
truly were a health measure, there would be no
such exceptions.
Unlike mining (Holden v. Hardy), baking is not a
dangerous occupation. Consequently, the law
is not a reasonable exercise of the police
power. It is a labor law, not a health law.
Employers and employees have the right to
agree upon hours and wages, and the use of
the police power by New York to interfere with
such agreements is so paternalistic as to
violate the Fourteenth Amendment.
The freedoms of contract and private property
are among America’s most cherished rights,
and the Court should scrutinize any
encroachment on them.

of New York:
The police powers are elastic, capable of
meeting changing conditions and evolving
community standards. These powers are
exercised by elected state legislators who best
understand unique local conditions.
The state has an interest in the vitality of its
people. Those engaged in food production
must follow the highest standards of health
and safety. The law advances this interest.
Bakers often work at night, engage in
monotonous and repetitive tasks, and
frequently suffer poor ventilation and other
unsafe conditions. The law reduces a worker’s
exposure to these unhealthy environments.
Mr. Justice Peckham . . . Delivered the

The mandate of the statute, that “no employee

shall be required or permitted to work,” is the
substantial equivalent of an enactment that “no
employee shall contract or agree to work,” more
than ten hours per day; and, as there is no
provision for special emergencies, the statute is
mandatory in all cases. It is not an act merely
fixing the number of hours which shall constitute a
legal day’s work, but an absolute prohibition upon
the employer permitting, under any
circumstances, more than ten hours’ work to be
done in his establishment. The employee may
desire to earn the extra money which would arise
from his working more than the prescribed time,
but this statute forbids the employer from
permitting the employee to earn it.
The statute necessarily interferes with the right of
contract between the employer and employees,
concerning the number of hours in which the
latter may labor in the bakery of the employer. The
general right to make a contract in relation to his
business is part of the liberty of the individual
protected by the 14th Amendment of the Federal
Constitution. Allgeyer v. Louisiana. Under that
provision no state can deprive any person of life,
liberty, or property without due process of law.
The right to purchase or to sell labor is part of the
liberty protected by this amendment, unless there
are circumstances which exclude the right. There
are, however, certain powers, existing in the
sovereignty of each state in the Union, somewhat
vaguely termed police powers, the exact
description and limitation of which have not been
attempted by the courts. Those powers, broadly
stated, and without, at present, any attempt at a
more specific limitation, relate to the safety,
health, morals, and general welfare of the public.
Both property and liberty are held on such
reasonable conditions as may be imposed by the
governing power of the state in the exercise of
those powers, and with such conditions the 14th
Amendment was not designed to interfere.
This court has recognized the existence and

upheld the exercise of the police powers of the
states in many cases which might fairly be
considered as border ones, and it has, in the
course of its determination of questions regarding
the asserted invalidity of such statutes, on the
ground of their violation of the rights secured by
the Federal Constitution, been guided by rules of a
very liberal nature, the application of which has
resulted, in numerous instances, in upholding the
validity of state statutes thus assailed. Among the
later cases where the state law has been upheld
by this court is that of Holden v. Hardy. A
provision in the act of the legislature of Utah was
there under consideration, the act limiting the
employment of workmen in all underground mines
or workings, to eight hours per day, “except in
cases of emergency, where life or property is in
imminent danger.” It also limited the hours of
labor in smelting and other institutions for the
reduction or refining of ores or metals to eight
hours per day, except in like cases of emergency.
The act was held to be a valid exercise of the
police powers of the state . . . [because the] law
applies only to the classes subjected by their
employment to the peculiar conditions and effects
attending underground mining and work in
smelters, and other works for the reduction and
refining of ores. . . .
There is nothing in Holden v. Hardy which covers

the case now before us.
It must, of course, be conceded that there is a

limit to the valid exercise of the police power by
the state. There is no dispute concerning this
general proposition. Otherwise the 14th
Amendment would have no efficacy and the
legislatures of the states would have unbounded
power, and it would be enough to say that any
piece of legislation was enacted to conserve the
morals, the health, or the safety of the people;
such legislation would be valid, no matter how
absolutely without foundation the claim might be.
The claim of the police power would be a mere
pretext,—become another and delusive name for
the supreme sovereignty of the state to be
exercised free from constitutional restraint. This is
not contended for. In every case that comes before
this court, therefore, where legislation of this
character is concerned, and where the protection
of the Federal Constitution is sought, the question
necessarily arises: Is this a fair, reasonable, and
appropriate exercise of the police power of the
state, or is it an unreasonable, unnecessary, and
arbitrary interference with the right of the
individual to his personal liberty, or to enter into
those contracts in relation to labor which may
seem to him appropriate or necessary for the
support of himself and his family? Of course the
liberty of contract relating to labor includes both
parties to it. The one has as much right to
purchase as the other to sell labor.
This is not a question of substituting the judgment

of the court for that of the legislature. If the act be
within the power of the state it is valid, although
the judgment of the court might be totally opposed
to the enactment of such a law. But the question
would still remain: Is it within the police power of
the state? and that question must be answered by
the court.
The question whether this act is valid as a labor

law, pure and simple, may be dismissed in a few
words. There is no reasonable ground for
interfering with the liberty of person or the right
of free contract, by determining the hours of labor,
in the occupation of a baker. There is no
contention that bakers as a class are not equal in
intelligence and capacity to men in other trades or
manual occupations, or that they are not able to
assert their rights and care for themselves without
the protecting arm of the state, interfering with
their independence of judgment and of action.
They are in no sense wards of the state. Viewed in
the light of a purely labor law, with no reference
whatever to the question of health, we think that a
law like the one before us involves neither the
safety, the morals, nor the welfare, of the public,
and that the interest of the public is not in the
slightest degree affected by such an act. The law
must be upheld, if at all, as a law pertaining to the
health of the individual engaged in the occupation
of a baker. It does not affect any other portion of
the public than those who are engaged in that
occupation. Clean and wholesome bread does not
depend upon whether the baker works but ten
hours per day or only sixty hours a week. The
limitation of the hours of labor does not come
within the police power on that ground.
It is a question of which of two powers or rights

shall prevail—the power of the state to legislate or
the right of the individual to liberty of person and
freedom of contract. The mere assertion that the
subject relates, though but in a remote degree, to
the public health, does not necessarily render the
enactment valid. The act must have a more direct
relation, as a means to an end, and the end itself
must be appropriate and legitimate, before an act
can be held to be valid which interferes with the
general right of an individual to be free in his
person and in his power to contract in relation to
his own labor. . . .
We think the limit of the police power has been
reached and passed in this case. There is, in our
judgment, no reasonable foundation for holding
this to be necessary or appropriate as a health law
to safeguard the public health, or the health of the
individuals who are following the trade of a baker.
If this statute be valid, and if, therefore, a proper
case is made out in which to deny the right of an
individual . . . as employer or employee, to make
contracts for the labor of the latter under the
protection of the provisions of the Federal
Constitution, there would seem to be no length to
which legislation of this nature might not go. . . .
We think that there can be no fair doubt that the

trade of a baker, in and of itself, is not an
unhealthy one to that degree which would
authorize the legislature to interfere with the right
to labor, and with the right of free contract on the
part of the individual, either as employer or
employee. In looking through statistics regarding
all trades and occupations, it may be true that the
trade of a baker does not appear to be as healthy
as some other trades, and is also vastly more
healthy than still others. To the common
understanding the trade of a baker has never been
regarded as an unhealthy one. . . . It might be
safely affirmed that almost all occupations more or
less affect the health. There must be more than
the mere fact of the possible existence of some
small amount of unhealthiness to warrant
legislative interference with liberty. It is
unfortunately true that labor, even in any
department, may possibly carry with it the seeds
of unhealthiness. But are we all, on that account,
at the mercy of legislative majorities? A printer, a
tinsmith, a locksmith, a carpenter, a cabinetmaker,
a dry goods clerk, a bank’s, a lawyer’s, or a
physician’s clerk, or a clerk in almost any kind of
business, would all come under the power of the
legislature, on this assumption. No trade, no
occupation, no mode of earning one’s living, could
escape this all-pervading power, and the acts of
the legislature in limiting the hours of labor in all
employments would be valid, although such
limitation might seriously cripple the ability of the
laborer to support himself and his family. . . . It
might be said that it is unhealthy to work more
than that number of hours in an apartment lighted
by artificial light during the working hours of the
day; that the occupation of the bank clerk, the
lawyer’s clerk, the real-estate clerk, or the
broker’s clerk, in such offices is therefore
unhealthy, and the legislature, in its paternal
wisdom, must, therefore, have the right to
legislate on the subject of, and to limit, the hours
for such labor; and, if it exercises that power, and
its validity be questioned, it is sufficient to say, it
has reference to the public health; it has reference
to the health of the employees condemned to labor
day after day in buildings where the sun never
shines; it is a health law, and therefore it is valid,
and cannot be questioned by the courts.
It is also urged, pursuing the same line of

argument, that it is to the interest of the state that
its population should be strong and robust, and
therefore any legislation which may be said to
tend to make people healthy must be valid as
health laws, enacted under the police power. If
this be a valid argument and a justification for this
kind of legislation, it follows that the protection of
the Federal Constitution from undue interference
with liberty of person and freedom of contract is
visionary, wherever the law is sought to be
justified as a valid exercise of the police power.
Scarcely any law but might find shelter under
such assumptions, and conduct, properly so
called, as well as contract, would come under the
restrictive sway of the legislature. Not only the
hours of employees, but the hours of employers,
could be regulated, and doctors, lawyers,
scientists, all professional men, as well as athletes
and artisans, could be forbidden to fatigue their
brains and bodies by prolonged hours of exercise,
lest the fighting strength of the state be impaired.
We mention these extreme cases because the
contention is extreme. We do not believe in the
soundness of the views which uphold this law. On
the contrary, we think that such a law as this,
although passed in the assumed exercise of the
police power, and as relating to the public health,
or the health of the employees named, is not
within that power, and is invalid. The act is not,
within any fair meaning of the term, a health law,
but is an illegal interference with the rights of
individuals, both employers and employees, to
make contracts regarding labor upon such terms
as they may think best, or which they may agree
upon with the other parties to such contracts.
Statutes of the nature of that under review,
limiting the hours in which grown and intelligent
men may labor to earn their living, are mere
meddlesome interferences with the rights of the
individual and they are not saved from
condemnation by the claim that they are passed in
the exercise of the police power and upon the
subject of the health of the individual whose rights
are interfered with, unless there be some fair
ground, reasonable in and of itself, to say that
there is material danger to the public health, or to
the health of the employees, if the hours of labor
are not curtailed. All that [New York] could
properly do has been done by it with regard to the
conduct of bakeries, as provided for in the other
sections of the act. . . . These several sections
provide for the inspection of the premises where
the bakery is carried on, with regard to furnishing
proper wash rooms and waterclosets, apart from
the bake room, also with regard to providing
proper drainage, plumbing, and painting; . . . and
for other things of that nature. . . . These various
sections may be wise and valid regulations, and
they certainly go to the full extent of providing for
the cleanliness and the healthiness, so far as
possible, of the quarters in which bakeries are to
be conducted. Adding to all these requirements a
prohibition to enter into any contract of labor in a
bakery for more than a certain number of hours a
week is, in our judgment, so wholly beside the
matter of a proper, reasonable, and fair provision
as to run counter to that liberty of person and of
free contract provided for in the Federal
Constitution.
It was further urged on the argument that

restricting the hours of labor in the case of bakers
was valid because it tended to cleanliness on the
part of the workers, as a man was more apt to be
cleanly when not overworked, and if cleanly then
his “output” was also more likely to be so. What
has already been said applies with equal force to
this contention. We do not admit the reasoning to
be sufficient to justify the claimed right of such
interference. The state in that case would assume
the position of a supervisor, or pater familias, over
every act of the individual, and its right of
governmental interference with his hours of labor,
his hours of exercise, the character thereof, and
the extent to which it shall be carried would be
recognized and upheld. In our judgment it is not
possible in fact to discover the connection
between the number of hours a baker may work in
the bakery and the healthful quality of the bread
made by the workman. The connection, if any
exist, is too shadowy and thin to build any
argument for the interference of the legislature. If
the man works ten hours a day it is all right, but if
ten and a half or eleven his health is in danger and
his bread may be unhealthy, and, therefore, he
shall not be permitted to do it. This, we think, is
unreasonable and entirely arbitrary. When
assertions such as we have adverted to become
necessary in order to give, if possible, a plausible
foundation for the contention that the law is a
“health law,” it gives rise to at least a suspicion
that there was some other motive dominating the
legislature than the purpose to subserve the
public health or welfare.
This interference on the part of the legislatures of

the several states with the ordinary trades and
occupations of the people seems to be on the
increase. . . .
It is impossible for us to shut our eyes to the fact

that many of the laws of this character, while
passed under what is claimed to be the police
power for the purpose of protecting the public
health or welfare, are, in reality, passed from
other motives. We are justified in saying so when,
from the character of the law and the subject upon
which it legislates, it is apparent that the public
health or welfare bears but the most remote
relation to the law. The purpose of a statute must
be determined from the natural and legal effect of
the language employed; and whether it is or is not
repugnant to the Constitution of the United States
must be determined from the natural effect of
such statutes when put into operation, and not
from their proclaimed purpose.
It is manifest to us that the limitation of the hours

of labor provided for in this section of the statute
under which the indictment was found, and the
plaintiff in error convicted, has no such direct
relation to, and no such substantial effect upon,
the health of the employee, as to justify us in
regarding the section as really a health law. It
seems to us that the real object and purpose were
simply to regulate the hours of labor between the
master and his employees (all being men, sui
juris), in a private business, not dangerous in any
degree to morals, or in any real and substantial
degree to the health of the employees. Under such
circumstances the freedom of master and
employee to contract with each other in relation to
their employment, and in defining the same,
cannot be prohibited or interfered with, without
violating the Federal Constitution.
The judgment of the Court of Appeals of New

York, as well as that of the Supreme Court and the
County Court of Oneida County, must be reversed
and the case remanded to the County Court for
further proceedings not inconsistent with this
opinion.
Reversed.
MR. JUSTICE HOLMES,

dissenting.
This case is decided upon an economic theory
which a large part of the country does not
entertain. If it were a question whether I agreed
with that theory I should desire to study it further
and long before making up my mind. But I do not
conceive that to be my duty, because I strongly
believe that my agreement or disagreement has
nothing to do with the right of a majority to
embody their opinions in law. It is settled by
various decisions of this court that state
constitutions and state laws may regulate life in
many ways which we as legislators might think as
injudicious or if you like as tyrannical as this, and
which equally with this interfere with the liberty
to contract. Sunday laws and usury laws are
ancient examples. A more modern one is the
prohibition of lotteries. The liberty of the citizen to
do as he likes so long as he does not interfere with
the liberty of others to do the same, which has
been a shibboleth for some well-known writers, is
interfered with by school laws, by the Post Office,
by every state or municipal institution which takes
his money for purposes thought desirable,
whether he likes it or not. The Fourteenth
Amendment does not enact Mr. Herbert Spencer’s
Social Statics. . . . United States and state statutes
and decisions cutting down the liberty to contract
by way of combination are familiar to this court.
Two years ago we upheld the prohibition of sales
of stock on margins or for future delivery in the
constitution of California. Otis v. Parker. The
decision sustaining an eight hour law for miners is
still recent. Holden v. Hardy. Some of these laws
embody convictions or prejudices which judges
are likely to share. Some may not. But a
constitution is not intended to embody a particular
economic theory, whether of paternalism and the
organic relation of the citizen to the State or of
laissez faire. It is made for people of
fundamentally differing views, and the accident of
our finding certain opinions natural and familiar
or novel and even shocking ought not to conclude
our judgment upon the question whether statutes
embodying them conflict with the Constitution of
the United States.
General propositions do not decide concrete

cases. The decision will depend on a judgment or
intuition more subtle than any articulate major
premise. But I think that the proposition just
stated, if it is accepted, will carry us far toward
the end. Every opinion tends to become a law. I
think that the word liberty in the Fourteenth
Amendment is perverted when it is held to prevent
the natural outcome of a dominant opinion, unless
it can be said that a rational and fair man
necessarily would admit that the statute proposed
would infringe fundamental principles as they
have been understood by the traditions of our
people and our law. It does not need research to
show that no such sweeping condemnation can be
passed upon the statute before us. A reasonable
man might think it a proper measure on the score
of health. Men whom I certainly could not
pronounce unreasonable would uphold it as a first
installment of a general regulation of the hours of
work. Whether in the latter aspect it would be
open to the charge of inequality I think it
unnecessary to discuss.
Many scholars have called Lochner the Court’s

strongest expression of economic substantive due
process. Although the Court said the question to be
asked in this case is the same one it had been
addressing since Mugler—Is the law a fair,
reasonable, and appropriate exercise of police
power?—its answer is quite different. By
distinguishing Holden to the point of nonexistence
and by narrowing the definition of what constitutes
reasonable state regulations, the Court moved away
from a strict “reasonableness” approach to one that
reflected Allgeyer: an employer’s right “to make a
contract” with employees is virtually sacrosanct.
That the Court, although divided 5–4, accomplished

this feat not by changing the legal question but by
changing the answer creates something of a puzzle,
particularly with regard to the immediate subject of
the dispute—maximum work hours. Think about it
this way: the Court upheld the Utah law at issue in
Holden on the ground that the “kind of employment .
. . and the character of the employees . . . were such
as to make [the state law] reasonable and proper”; it
struck the Lochner law because bakers can “care for
themselves” (despite evidence to the contrary) and
the production of “clean and wholesome bread” is
not affected. Was this distinction significant? Or was
it merely a way to mask what the Court wanted to
do: narrow the grounds on which states could
reasonably regulate and, thereby, strike protective
legislation as a violation of the right to contract?
Justice Oliver Wendell Holmes’s dissent certainly
implies the latter. He goes so far as to accuse the
Court of using the Fourteenth Amendment to “enact
Mr. Herbert Spencer’s Social Statics.” Many scholars
agree with Holmes’s assessment and argue that the
justices in the Lochner majority were “motivated by
their own policy preferences favoring laissez faire
economics and Social Darwinism.”10 Other analysts
present a somewhat different picture.11 They
suggest that the Court was seeking to remain
faithful to “a long-standing constitutional ideology
that distinguished between valid economic
regulation and invalid ‘class,’ or factional
legislation.”12 In other words, Lochner represented
a “principled effort” on the part of the justices to
keep this area of the law consistent and coherent,
and not merely a statement of their ideological
predilections.
10 C. Ian Anderson, “Courts and the Constitution,”

Michigan Law Review 92 (1994): 1438.
11 See, especially, Howard Gillman, The Constitution

Besieged: The Rise and Demise of Lochner Era
Police Powers Jurisprudence (Durham, NC: Duke
12 Anderson, “Courts and the Constitution,” 1439.
Regardless of who is right, these issues moved to the

fore in Muller v. Oregon (1908). As you read this
most interesting case, think about the following:
Some scholars argue that the Court’s decision in
Muller merely echoed the logic of Holden and
Lochner; that is, the Court followed the
“reasonableness” approach. Others suggest that
there were extralegal factors at work that had a
great influence on the Court. With which view do you
agree?
Curt Muller (with arms folded) made constitutional

history when he asked the U.S. Supreme Court to
strike down as violative of his rights an Oregon law
regulating the number of hours his laundresses
could work at his cleaning establishment. In Muller
v. Oregon (1908), however, the Court held that states
may constitutionally enact maximum hours work
laws for women.
Courtesy of Ms Neil Whisnant
Muller v. Oregon 208 U.S. 412 (1908)
court/208/412.html
Vote: 9 (Brewer, Day, Fuller, Harlan, Holmes,

McKenna, Moody, Peckham, White)
OPINION OF THE COURT: Brewer
Facts:
At the forefront of the Progressive movement was
an organization called the National Consumers
League (NCL). Through the efforts of the NCL and
others, the drive for maximum work hours
legislation had succeeded in many states, which,
by the early 1900s, had imposed some types of
restrictions. After Lochner, however, all of their
efforts were threatened by employers who sought
to use that ruling to challenge state regulations.
Curt Muller, a German immigrant, settled in

Oregon and entered the laundry business. In 1905
he bought the Grand Laundry in north Portland; a
year later he purchased the Lace House Laundry.
His legal problems began in late 1905 when
Oregon authorities charged him with violating
state law by requiring Emma Gotcher, an
employee of the Grand Laundry, to work more
than ten hours on September 4, 1905 (ironically,
Labor Day), in violation of the state law
establishing maximum working hours for women
employed by factories and laundries. Muller was
convicted and sentenced to a fine of $10 or five
days in jail. He decided to challenge his
conviction. In the view of his attorneys, Oregon’s
regulation, which prohibited women, but not men,
from working in laundries for shifts of more than
ten hours, violated his right to enter into a
contract with his employees.
Recognizing that, in light of Lochner, Muller’s

argument rested on strong grounds, the NCL grew
concerned. It was reluctant to see the Supreme
Court nullify the league’s hard work to attain
passage of the Oregon law. To defend the law, the
NCL contacted Louis D. Brandeis, a well-known
attorney of the day and a future U.S. Supreme
Court justice. His philosophical position was very
much akin to the NCL’s, and he agreed to help the
organization with the Muller case, but only if the
NCL could persuade Oregon’s attorneys to give
him complete control over its course.
When NCL leaders managed to accomplish this,

Brandeis got down to work. Because of the
decision in Lochner and the stability of the Court’s
membership, Brandeis decided that bold action
was necessary. Instead of filling his brief with
legal arguments, he would provide the Court with
“facts, published by anyone with expert
knowledge of industry in its relation to women’s
hours of labor,” that indicated the evils of Muller’s
actions. In particular, the brief pointed out that
forcing women to work long hours affected their
health and their reproductive systems.13 It was
full of statements such as the following:
13 Clement E. Vose, Constitutional Change

(Lexington, MA: Lexington Books, 1972), 172.
Report of the Massachusetts State Board of

Health, 1873.
The State thus has an interest not only in the

prosperity, but also in the health and strength
and effective power of each one of its
members.
The first and largest interest of the State lies

in the great agency of human power—the
health of the people.
Report of the New York Bureau of Labor

Statistics, 1900.
The family furnishes the really fundamental
education of the growing generation—the
education of character. . . . [T]he importance
of a good family life in the training of
character needs repeated emphasis, for it is
the fundamental argument for a shorter
working day.
Report of the United States Industrial

Commission, 1901.
The entire tendency of industry is in the

direction of an increased exertion. . . . This
being true, there is but one alternative if the
working population is to be protected in its
health and trade longevity, namely, a reduction
in the hours of labor.
Report of the Massachusetts Bureau of Labor

Statistics, 1871.
It is claimed that legislation on this subject is

an interference between labor and capital. But
legislation has interfered with capital and
labor both, in the demand for public safety
and the public good. Now public safety and
public good, the wealth of the commonwealth,
centered, as such wealth is, in the well-being
of its common people, demands that the State
should interfere by special act in favor of
working-women, and working children, by
enacting a ten-hour law, to be enforced by a
system of efficient inspection.14
14 For more excerpts, see John Monahan and
Laurens Walker, Social Science in Law (Westbury,
NY: Foundation Press, 1998), 4–7.
In the end, with the help of the NCL, Brandeis

produced an incredible document. Known in legal
history as the Brandeis Brief, it contained more
than one hundred pages of sociological data culled
from various secondary sources and only two
pages of legal argument (see Box 10-1).
Arguments:
For the plaintiff in error, Curt Muller:
This law discriminates against women with
respect to certain employment rights.
The law denies women and employers the right
to enter into contracts to do the same work for
which men and employers may contract. This
violates the Fourteenth Amendment’s due
process clause.
There are no grounds to treat women who work
in laundries differently from women working in
other occupations. Laundry work is not
unusually dangerous or unhealthy.
This law, purportedly intended to protect
women’s health, is not based on the dangers
or hazards of the job; rather, it only limits how
long a woman may agree to work.

of Oregon:
The right to buy or sell labor is part of the
liberty protected by the Fourteenth
Amendment, but that right is subject to
reasonable restraint through the exercise of
the state’s police power for the protection of
the health, safety, morals, and general welfare
of the citizens.
Laws restricting liberty must have a substantial
relation to the protection of public health and
safety. This law meets that qualification and
therefore should be maintained.
Laws such as the one challenged here have
been enacted in many foreign nations and in
several states.
As demonstrated in many research studies,
long work hours have a detrimental effect on
women’s health and well-being. Shorter work
hours have a beneficial effect on women’s
lives, on their families’ lives, and on worker
productivity.
Box 10-1 The Brandeis Brief
AT THE TURN of the century the function of

interpreting the law was largely regarded as a
matter of logic. The Court had accepted the
theories of laissez faire economics, and the
doctrine of evolution expounded by Herbert
Spencer, to such an extent that any kind of
regulation of private business was considered a
violation of “liberty.” Only exceptional
circumstances which forced the attention of the
members of the Court on matters other than the
logic of the law would suffice to cause them to
alter this view.
When it was recognized that political, economic

and social considerations ought to be included in
the process of determining the law, the legal
tradition offered little means of placing such
factual data before the judges. Thus decisions
regarding matters of contract, in regard to labor
or business regulation, were shaped by the
personal philosophies of Court members and the
rigid pattern of law unleavened by knowledge of
its relationship to society. Consequently, the use of
logic alone “resulted in proscribing any realistic
test of legislative-judicial conclusions.” The
questions which needed to be asked, and
answered, dealt with the social consequences of
the law at issue and the consequences which
could be expected to follow the judicial decision.
In reference to the first question regarding social

consequences of the law, by what means were the
judges to obtain the background of facts which led
to its enactment? Many Justices felt this was the
responsibility of the legislature, that law should be
passed after legislative inquiry as to its needs had
been made. Suppose, however, the Court would
not accept the legislative decisions that the law
was needed, how could the Court obtain sufficient
data to discuss the law? In a sense this was the
dilemma in Lochner v. New York, for the use of
logic produced the rule that the restriction of
employer-employee rights to contract over hours
of labor violated due process. Justice Peckham
refused to acknowledge that the health and
welfare of employees provided any basis whatever
for restricting business. It was clear that the Court
would not uphold such legislation, unless it could
be convinced that there was a reasonable
relationship between such regulation and the
public welfare.
It is at this crucial point in the history of

constitutional development that Brandeis
introduced his brief as “authoritative extra-legal
data” to provide the Court with information as to
the reasonable relation of the law to the object to
be regulated. He differed from the other liberals
of the day in the method he used. Rather than deal
in invective and generalities, he examined the
social ills in detail and offered concrete plans for
social legislation. In effect, Brandeis was doing no
more than taking cognizance of the facts of
modern industrial life.
The Technique of the Brief:

Muller v. Oregon, 1908
. . . [T]he key to the Brandeis Brief was the factual
data he submitted to show the reasonableness of
the specific law at issue and the relationship of the
regulation to the needs of society. In the briefs he
presented, as a lawyer defending social legislation
in four states, there is a definite pattern that he
followed to prove his point. An analysis of these
briefs and that data they include can be compiled
into a single “brief” outline to illustrate Brandeis’
methodology. The following construct represents
the general pattern, omitting details and using the
hours of labor for women as the subject.
Part First
I. Legal Argument
(Varying from two to forty pages, citing rules from

supporting cases.)
Part Second
II. Legislation Restricting Hours of Work for
Women
1. American Legislation
1. List of States having such legislation
2. Foreign Legislation
1. List of countries having such legislation
3. Summary of Combined Experience of
Above Legislation
III. The World’s Experience upon which the
Legislation Limiting the Hours of Work for
Women Is Based
1. The Dangers of Long Hours
1. Causes
1. physical difference between men
and women
2. nature of industrial work
2. Bad Effect of Long Hours on Health
1. General injuries
2. Problem of fatigue
3. Specific evil effects on childbirth
3. Bad Effect of Long Hours on Safety
4. Bad Effect of Long Hours on Morals
5. Bad Effect of Long Hours on General
Welfare
IV. Shorter Hours the Only Possible Protection
V. Benefits of Shorter Hours
1. Good Effect on Individual
1. Health
2. Morals
3. Home Life
2. Good Effect on General Welfare
VI. Economic Aspects of Short Hours
1. Effect on Output
1. Increases efficiency
2. Improves product
2. Aids Regularity of Employment
3. Widens Job Opportunities for Women
VII. Uniformity of Restriction Necessary
1. Overtime Dangerous to Health
2. Essential to Enforcement
3. Necessary for Just Application
VIII. Reasonableness of Short Hours
1. Opinions of Physicians
2. Opinions of Employers
3. Opinions of Employees
IX. Conclusion
The outline of the brief indicates the wealth of the

material Brandeis presented to the Court to
support his very brief legal argument. The
evidence he produced relied, as Jerome Frank
described it, on facts that “do not involve
witnesses’ credibility.” It reveals a concern for
why legislation was passed, what it is intended to
do, and the benefits, including a dollars and cents
consideration, that will accrue to business and
labor alike. Thus it was an intellectual inquiry
whose ends were social justice. It is so persuasive
in content that the burden of proof placed on the
opposing party in the suit is almost impossible to
overcome. The simplicity and clarity of the
organized evidence is an invitation to apply a
pragmatic test to the reasonableness of the law,
and in the final analysis it becomes an irresistible
force. . . .
The first successful use of the brief before the

Supreme Court of the United States came in 1908,
when Brandeis argued in Muller v. Oregon to
sustain an Oregon law establishing a ten hour day
for women employed in “any mechanical
establishment, or factory or laundry.” The
argument consisted of two pages of the legal rules
applicable to the case, and was followed by 102
pages of evidence. . . .
The most interesting aspect of the case is that

Brandeis relied on the rule of Lochner v. New York
to prove his point. He began by agreeing that “the
right to purchase or sell labor is a part of the
‘liberty’ protected by the fourteenth amendment”
but, he pointed out, “such ‘liberty’ is subject to
reasonable restraint by the police power of the
state if there is a relationship to public ‘health,
safety or welfare.’” Brandeis concluded that the
statute was “obviously enacted for the purpose of
protecting the public health, safety and welfare”
and submitted “the facts of common knowledge of
which the Court may take judicial notice” as proof
of his argument.
The supporting evidence which followed the

argument deeply impressed the Court, and Justice
Brewer, who delivered the opinion, quoted
extensively from it. . . . Thus, for the first time in
the history of the Court, due process was
determined, not just by consideration of abstract
legal concepts, but also on the basis of the social
and economic implications of the law at issue.
Source: Excerpted from Marion E. Doro, “The

Brandeis Brief,” Vanderbilt Law Review 11 (1958):
784; as reprinted in Social Research in the Judicial
Process, ed. Wallace D. Loh (New York: Russell
Sage, 1984), 88–90. Courtesy of the Vanderbilt
Law Review.
Mr. Justice Brewer Delivered the Opinion of

the Court.
We held in Lochner v. New York that a law

providing that no laborer shall be required or
permitted to work in bakeries more than sixty
hours in a week or ten hours in a day was not, as
to men, a legitimate exercise of the police power
of the state, but an unreasonable, unnecessary
and arbitrary interference with the right and
liberty of the individual to contract in relation to
his labor, and as such was in conflict with, and
void under, the Federal Constitution. That decision
is invoked by plaintiff in error as decisive of the
question before us. But this assumes that the
difference between the sexes does not justify a
different rule respecting a restriction of the hours
of labor.
In patent cases counsel are apt to open the

argument with a discussion of the state of the art.
It may not be amiss, in the present case, before
examining the constitutional question, to notice
the course of legislation, as well as expressions of
opinion from other than judicial sources. In the
brief filed by Mr. Louis D. Brandeis for the
defendant in error is a very copious collection of
all these matters, an epitome of which is found in
the margin.
The legislation and opinions referred to in the
margin may not be, technically speaking,
authorities, and in them is little or no discussion of
the constitutional question presented to us for
determination, yet they are significant of a
widespread belief that woman’s physical
structure, and the functions she performs in
consequence thereof, justify special legislation
restricting or qualifying the conditions under
which she should be permitted to toil.
Constitutional questions, it is true, are not settled
by even a consensus of present public opinion, for
it is the peculiar value of a written constitution
that it places in unchanging form limitations upon
legislative action, and thus gives a permanence
and stability to popular government which
otherwise would be lacking. At the same time,
when a question of fact is debated and debatable,
and the extent to which a special constitutional
limitation goes is affected by the truth in respect
to that fact, a widespread and long-continued
belief concerning it is worthy of consideration. We
take judicial cognizance of all matters of general
knowledge.
It is undoubtedly true, as more than once declared

by this court, that the general right to contract in
relation to one’s business is part of the liberty of
the individual, protected by the 14th Amendment
to the Federal Constitution; yet it is equally well
settled that this liberty is not absolute and
extending to all contracts, and that a state may,
without conflicting with the provisions of the 14th
Amendment, restrict in many respects the
individual’s power of contract. Without stopping to
discuss at length the extent to which a state may
act in this respect, we refer to the following cases
in which the question has been considered:
Allgeyer v. Louisiana; Holden v. Hardy; Lochner v.
New York.
That woman’s physical structure and the

performance of maternal functions place her at a
disadvantage in the struggle for subsistence is
obvious. This is especially true when the burdens
of motherhood are upon her. Even when they are
not, by abundant testimony of the medical
fraternity, continuance for a long time on her feet
at work, repeating this from day to day, tends to
injurious effects upon the body, and, as healthy
mothers are essential to vigorous offspring, the
physical well-being of woman becomes an object
of public interest and care in order to preserve the
strength and vigor of the race.
Still again, history discloses the fact that woman

has always been dependent upon man. He
established his control at the outset by superior
physical strength, and this control in various
forms, with diminishing intensity, has continued to
the present. As minors, though not to the same
extent, she has been looked upon in the courts as
needing especial care that her rights may be
preserved. Education was long denied her, and
while now the doors of the schoolroom are opened
and her opportunities for acquiring knowledge are
great, yet even with that and the consequent
increase of capacity for business affairs, it is still
true that in the struggle for subsistence she is not
an equal competitor with her brother. Though
limitations upon personal and contractual rights
may be removed by legislation, there is that in her
disposition and habits of life which will operate
against a full assertion of those rights. She will
still be where some legislation to protect her
seems necessary to secure a real equality of right.
Doubtless there are individual exceptions, and
there are many respects in which she has an
advantage over him; but looking at it from the
viewpoint of the effort to maintain an independent
position in life, she is not upon an equality.
Differentiated by these matters from the other sex,
she is properly placed in a class by herself, and
legislation designed for her protection may be
sustained, even when like legislation is not
necessary for men, and could not be sustained. It
is impossible to close one’s eyes to the fact that
she still looks to her brother and depends upon
him. Even though all restrictions on political,
personal, and contractual rights were taken away,
and she stood, so far as statutes are concerned,
upon an absolutely equal plane with him, it would
still be true that she is so constituted that she will
rest upon and look to him for protection; that her
physical structure and a proper discharge of her
maternal functions—having in view not merely her
own health, but the well-being of the race—justify
legislation to protect her from the greed as well as
the passion of man. The limitations which this
statute places upon her contractual powers, upon
her right to agree with her employer as to the
time she shall labor, are not imposed solely for her
benefit, but also largely for the benefit of all. Many
words cannot make this plainer. The two sexes
differ in structure of body, in the functions to be
performed by each, in the amount of physical
strength, in the capacity for long-continued labor,
particularly when done standing, the influence of
vigorous health upon the future well-being of the
race, the self-reliance which enables one to assert
full rights, and in the capacity to maintain the
struggle for subsistence. This difference justifies a
difference in legislation, and upholds that which is
designed to compensate for some of the burdens
which rest upon her.
We have not referred in this discussion to the

denial of the elective franchise in the state of
Oregon, for while that may disclose a lack of
political equality in all things with her brother,
that is not of itself decisive. The reason runs
deeper, and rests in the inherent difference
between the two sexes, and in the different
functions in life which they perform.
For these reasons, and without questioning in any

respect the decision in Lochner v. New York, we
are of the opinion that it cannot be adjudged that
the act in question is in conflict with the Federal
Constitution, so far as it respects the work of a
female in a laundry, and the judgment of the
Supreme Court of Oregon is affirmed.
Why did the justices affirm the Oregon law? One

answer is that the Court did not depart from Lochner
—it merely found that Oregon’s regulations, unlike
New York’s, were a reasonable use of the state’s
power. But the Court applied the reasonableness
approach in both Lochner and Holden and came to
completely different conclusions. So, despite the
Court’s attempt to distinguish Lochner, how much
can the application of that standard possibly explain
about Muller’s outcome? Another possibility is that
Brandeis forced the Court to see the reasonableness
of the Oregon regulation. By presenting such a mass
of statistical data, he kept the justices riveted on the
law and diverted their attention from a substantive
due process approach. The strategy worked. The
Court even commended Brandeis’s brief.
Winning Muller gave a big boost to the Progressive

movement. Some observers worried, however, that
the decision depended on the fact that the law
covered only women and that when the Court had an
opportunity to review a law covering all workers, it
would apply Lochner. This fear increased when the
Court agreed to review Bunting v. Oregon (1917),
which involved another Oregon law providing that
“no person shall be employed in any mill, factory, or
manufacturing establishment in this state more than
ten hours in any one day.” Compounding the NCL’s
concern was that Brandeis now sat on the Supreme
Court and would almost certainly recuse himself
because he had been involved in the early stages of
the dispute.
In 1917, however, the Supreme Court dispelled the

NCL’s concerns. In a 5–3 decision, with Brandeis not
participating, the majority upheld the Oregon law.
Writing for the Court, Justice Joseph McKenna
explained: although Franklin O. Bunting contended
that “the law . . . is not either necessary or useful
‘for the preservation of the health of employees,’” no
evidence was provided to support that contention.
Moreover, the judgment of the Oregon legislature
and supreme court was that “it cannot be held, as a
matter of law, that the legislative requirement is
unreasonable or arbitrary.” McKenna concluded,
therefore, that no further discussion was
“necessary” and upheld the law.
The Court failed even to mention Lochner. But given

the Court’s holding, many observers predicted the
death of that decision; after all, it was wholly
incompatible with Bunting. Perhaps the demise of
substantive due process would follow. Indeed,
throughout the period between Mugler (1887) and
up to about Bunting, it appeared that Lochner was
more the exception than the rule. Between 1887 and
1910 the Court decided 558 cases involving due
process claims challenging state regulations and
upheld 83 percent of the laws. It now seemed that
Lochner, not Muller, was the unusual case.15
15 Kelly, Harbison, and Belz, The American

Constitution, 405.
The Heyday of Substantive Due

Process: 1923–1936
The Bunting funeral for Lochner proved to be
premature. Within six years, not only did the Court
virtually overrule Bunting, but also the justices
seemed to be more committed to the Lochner
version of due process than ever before. Adkins v.
Children’s Hospital (1923) provides an excellent
illustration of the magnitude of this resurgence. As
you read the Court’s ruling, compare it with Muller.
Is there any way, legally speaking, to distinguish the
two decisions? Or do you suspect that other,
extralegal factors came into play?
Adkins v. Children’s Hospital 261 U.S. 525 (1923)
court/261/525.html
Vote: 5 (Butler, McKenna, McReynolds,

Sutherland, Van Devanter)
3 (Holmes, Sanford, Taft)
OPINION OF THE COURT: Sutherland

DISSENTING OPINIONS: Holmes, Taft
NOT PARTICIPATING: Brandeis
Facts:
In 1918 Congress, with the support of progressive-
oriented president Woodrow Wilson, enacted a law
that established the Minimum Wage Board of the
District of Columbia and gave it authority to set
minimum wages for women and children in
Washington, D.C.16 The board, staffed by
progressives, ordered that restaurants and
hospitals pay women workers a minimum wage of
34.5 cents per hour, $16.50 per week, or $71.50
per month. According to the board, these rates
would “supply the necessary cost of living to . . .
women workers to maintain them in good health
and morals.”
16 We derive this account from Vose,

Constitutional Change, 190–196.
Children’s Hospital of the District of Columbia,

which employed many women, refused to comply
and sued the members of the Wage Board to
enjoin enforcement of the regulations. In the
hospital’s opinion, the law violated the due
process clause of the Fifth Amendment
encompassing the liberty to enter into salary
contracts with employees.17 Along with the
Children’s Hospital appeal, the Court heard the
case of a female elevator operator who sued the
Wage Board for loss of employment and income
because she was laid off when her employer could
not afford to pay her the minimum wage.
17 Because the District of Columbia is not a state,

the due process clause of the Fourteenth
Amendment did not apply.
Because of delay at the lower court level, the case

did not reach the Supreme Court until 1923. An
attorney for the Wage Board, assisted by NCL
attorney (and future Supreme Court justice) Felix
Frankfurter and other NCL staffers, sought to
defend the 1918 law on grounds similar to
Brandeis’s in Muller. They offered the Court
“impressive documentation on the cost of living
and the desirability of good wages.”
Arguments:
For the appellants, Jesse C. Adkins et al.
of the Minimum Wage Board of the
District of Columbia:
The Court should focus on the reasonableness
of the law. This legislation is rational. Congress
relied on its experience and the experiences of
several states. It conducted ample hearings
and investigations. The law is not arbitrary.
Safeguarding women and children from
conditions that would endanger their health
and morals is a government responsibility and
a legitimate end.
The means adopted by Congress are
appropriate and plainly designed to accomplish
the legislative end.
For the appellee, Children’s

Hospital of the District of
Columbia:
This is a price-fixing law, pure and simple. It
does not regulate working conditions or health
factors. Fixing prices is beyond appropriate
legislative authority.
The law violates the due process clause of the
Fifth Amendment because it restricts a
woman’s right to contract for her labor.
The constitutional problems associated with
restricting freedom of contract are not
eliminated by the exclusion of male workers
from the law.
The law is not temporary, nor is it a response
to a temporary emergency.
In Adkins v. Children’s Hospital (1923), the
Supreme Court struck down a federal minimum
wage law on substantive due process grounds. The
legal action to enjoin enforcement of the law was
filed by the corporation that managed Children’s
Hospital of the District of Columbia.
Library of Congress
Mr. Justice Sutherland Delivered the Opinion

of the Court.
The statute now under consideration is attacked

upon the ground that it authorizes an
unconstitutional interference with the freedom of
contract included within the guaranties of the due
process clause of the 5th Amendment. That the
right to contract about one’s affairs is a part of the
liberty of the individual protected by this clause is
settled by the decisions of this court, and is no
longer open to question. . . .
There is, of course, no such thing as absolute

freedom of contract. It is subject to a great variety
of restraints. But freedom of contract is,
nevertheless, the general rule and restraint the
exception; and the exercise of legislative authority
to abridge it can be justified only by the existence
of exceptional circumstances. . . .
[The statute under consideration] is simply and

exclusively a price-fixing law, confined to adult
women . . . who are legally as capable of
contracting for themselves as men. It forbids two
parties having lawful capacity—under penalties as
to the employer—to freely contract with one
another in respect of the price for which one shall
render service to the other in a purely private
employment. . . .
The feature of this statute which, perhaps more

than any other, puts upon it the stamp of invalidity
is that it exacts from the employer an arbitrary
payment for a purpose and upon a basis having no
causal connection with his business, or the
contract, or the work the employee engages to do.
The declared basis . . . is not the value of the
service rendered, but the extraneous
circumstance that the employee needs to get a
prescribed sum of money to insure her
subsistence, health, and morals. . . . The moral
requirement, implicit in every contract of
employment, viz., that the amount to be paid and
the service to be rendered shall bear to each other
some relation of just equivalence, is completely
ignored. The necessities of the employee are alone
considered, and these arise outside of the
employment, are the same when there is no
employment, and as great in one occupation as in
another. Certainly the employer, by paying a fair
equivalent for the service rendered, though not
sufficient to support the employee, has neither
caused nor contributed to her poverty. . . . A
statute requiring an employer to pay in money, to
pay at prescribed and regular intervals, to pay the
value of the services rendered, even to pay with
fair relation to the extent of the benefit obtained
from the service, would be understandable. But a
statute which prescribes payment without regard
to any of these things, and solely with relation to
circumstances apart from the contract of
employment, the business affected by it, and the
work done under it, is so clearly the product of a
naked, arbitrary exercise of power, that it cannot
be allowed to stand under the Constitution of the
It has been said that legislation of the kind now

under review is required in the interest of social
justice, for whose ends freedom of contract may
lawfully be subjected to restraint. The liberty of
the individual to do as he pleases, even in
innocent matters, is not absolute. It must
frequently yield to the common good, and the line
beyond which the power of interference may not
be pressed is neither definite nor unalterable, but
may be made to move, within limits not well
defined, with changing need and circumstance.
Any attempt to fix a rigid boundary would be
unwise as well as futile. But, nevertheless, there
are limits to the power, and when these have been
passed, it becomes the plain duty of the courts, in
the proper exercise of their authority, to so
declare. To sustain the individual freedom of
action contemplated by the Constitution is not to
strike down the common good, but to exalt it; for
surely the good of society as a whole cannot be
better served than by the preservation against
arbitrary restraint of the liberties of its constituent
members.
It follows from what has been said that the act in

question passes the limit prescribed by the
Constitution, and, accordingly, the decrees of the
court below are affirmed.
MR. CHIEF JUSTICE TAFT,

dissenting.
I regret much to differ from the court in these
cases.
The boundary of the police power beyond which

its exercise becomes an invasion of the guaranty
of liberty under the Fifth and Fourteenth
Amendments to the Constitutions is not easy to
mark. Our court has been laboriously engaged in
pricking out a line in successive cases. We must be
careful, it seems to me, to follow that line as well
as we can, and not to depart from it by suggesting
a distinction that is formal rather than real.
Legislatures in limiting freedom of contract

between employee and employer by a minimum
wage proceed on the assumption that employees,
in the class receiving least pay, are not upon a full
level of equality of choice with their employer and
in their necessitous circumstances are prone to
accept pretty much anything that is offered. They
are peculiarly subject to the overreaching of the
harsh and greedy employer. The evils of the
sweating system and of the long hours and low
wages which are characteristic of it are well
known. Now, I agree that it is a disputable
question in the field of political economy how far a
statutory requirement of maximum hours or
minimum wages may be a useful remedy for these
evils, and whether it may not make the case of the
oppressed employee worse than it was before. But
it is not the function of this court to hold
congressional acts invalid simply because they are
passed to carry out economic views which the
court believes to be unwise or unsound. . . .
The right of the Legislature under the Fifth and

Fourteenth Amendments to limit the hours of
employment on the score of the health of the
employee, it seems to me, has been firmly
established. As to that, one would think, the line
had been pricked out so that it has become a well
formulated rule. In Holden v. Hardy it was applied
to miners and rested on the unfavorable
environment of employment in mining and
smelting. In Lochner v. New York it was held that
restricting those employed in bakeries to 10 hours
a day was an arbitrary and invalid interference
with the liberty of contract secured by the
Fourteenth Amendment. Then followed a number
of cases beginning with Muller v. Oregon,
sustaining the validity of a limit on maximum
hours of labor for women to which I shall
hereafter allude, and following these cases came
Bunting v. Oregon. In that case, this court
sustained a law limiting the hours of labor of any
person, whether man or woman, working in any
mill, factory, or manufacturing establishment to 10
hours a day with a proviso as to further hours to
which I shall hereafter advert. The law covered
the whole field of industrial employment and
certainly covered the case of persons employed in
bakeries. Yet the opinion in the Bunting Case does
not mention the Lochner Case. No one can
suggest any constitutional distinction between
employment in a bakery and one in any other kind
of a manufacturing establishment which should
make a limit of hours in the one invalid, and the
same limit in the other permissible. It is
impossible for me to reconcile the Bunting Case
and the Lochner Case, and I have always supposed
that the Lochner Case was thus overruled sub
silentio. . . .
I am authorized to say that MR. JUSTICE

SANFORD concurs in this opinion.
MR. JUSTICE HOLMES,

dissenting.
The question in this case is the broad one,
whether Congress can establish minimum rates of
wages for women in the District of Columbia, with
due provision for special circumstances, or
whether we must say that Congress has no power
to meddle with the matter at all. To me,
notwithstanding the deference due to the
prevailing judgment of the court, the power of
Congress seems absolutely free from doubt. The
end—to remove conditions leading to ill health,
immorality, and the deterioration of the race—no
one would deny to be within the scope of
constitutional legislation. The means are means
that have the approval of Congress, of many
states, and of those governments from which we
have learned our greatest lessons. When so many
intelligent persons, who have studied the matter
more than any of us can, have thought that the
means are effective and are worth the price, it
seems to me impossible to deny that the belief
reasonably may be held by reasonable men. . . .
[T]he only objection that can be urged is found
within the vague contours of the 5th Amendment,
prohibiting the depriving any person of liberty or
property without due process of law. To that I
turn.
The earlier decisions upon the same words in the

14th Amendment began within our memory, and
went no farther than an unpretentious assertion of
the liberty to follow the ordinary callings. Later
that innocuous generality was expanded into the
dogma, Liberty of Contract. Contract is not
specially mentioned in the text that we have to
construe. It is merely an example of doing what
you want to do, embodied in the word “liberty.”
But pretty much all law consists in forbidding men
to do some things that they want to do, and
contract is no more exempt from law than other
acts. . . .
I confess that I do not understand the principle on

which the power to fix a minimum for the wages of
women can be denied by those who admit the
power to fix a maximum for their hours of work. I
fully assent to the proposition that here, as
elsewhere, the distinctions of the law are
distinctions of degree; but I perceive no difference
in the kind or degree of interference with liberty,
the only matter with which we have any concern,
between the one case and the other. The bargain
is equally affected whichever half you regulate. . .
.
I am of opinion that the statute is valid.
Adkins represented the return of substantive due

process; indeed, it made clear that Muller and
Bunting had not nullified that doctrine. If anything,
as Justice Holmes’s dissent noted, it had come back
stronger than ever with the term due process of law
evolving into the “dogma, Liberty of Contract.”
Why the change? In large measure the change can

be traced back to the political climate of the day.
Following World War I, the U.S. economy boomed,
and voters elected one president after another who
was committed to a free market economy. These
presidents, in turn, appointed justices, at least some
of whom shared those beliefs. As Table 10-2
indicates, one president, Warren Harding, made the
first four of these new Supreme Court appointments.
Clement E. Vose notes, “[T]he most important single
fact about the Harding appointments was that he
named two ardent conservatives of the old school—
Sutherland and Butler—to serve along with two
justices similarly committed who were already
sitting—Van Devanter and McReynolds.”18 By 1922
all Four Horsemen were in place.
18 Vose, Constitutional Change, 194.
The entrenchment of substantive due process, as we

mentioned at the beginning of this chapter, was but
one manifestation of the impact of Republican
appointments to the Court during that era. With
their strong commitment to an unfettered market,
these conservative justices also invoked creative
theories of the limits of national power, especially
dual federalism, to strike down federal regulatory
efforts. Collectively, the doctrines of dual federalism
and substantive due process became effective
weapons in nullifying meaningful social legislation.
The Depression, the New Deal,

and the Decline of Economic
The laissez-faire approach of the Court through the
1920s was in keeping with the times. The nation
continued to boom and to elect politicians—
President Herbert Hoover, for example—who were
committed to a private sector–based economy that
they believed would remain successful if left free
from regulation. The Great Depression, triggered by
the stock market crash of 1929, and the subsequent
election of Franklin Roosevelt demonstrate just how
quickly that perception changed. The Depression
undermined the faith of many people who thought an
unregulated economy could successfully adjust itself
to changing economic conditions. Roosevelt’s
election indicated the public’s desire for government
action to get the nation back on its feet.
At first it appeared that the Court, although

dominated by conservative justices, might repudiate
substantive due process and go along with federal
and state efforts to ameliorate the effects of the
Depression. How could government exercise any
control over matters affecting the economy if the
Court continued to strike down the legislatures’
efforts on substantive due process grounds? This
was a central question confronting the Court in
Nebbia v. New York (1934).
Table 10-2BuntingAdkins
Nebbia v. New York 291 U.S. 502 (1934)
court/291/502.html

Stone)
4 (Butler, McReynolds, Sutherland, Van Devanter)

DISSENTING OPINION: McReynolds
Facts:
In 1933 the New York State legislature created
the Milk Control Board, in which it vested the
power to fix minimum and maximum prices that
stores could charge consumers for milk. The board
set the price of a quart of milk at nine cents, but
Leo Nebbia, the owner of a grocery store in
Rochester, New York, sold two quarts of milk and
a five-cent loaf of bread to Jedo Del Signori for
eighteen cents. He was convicted of violating the
board’s order and fined $5. He paid the fine under
protest and appealed his conviction on the ground
that the milk regulations were unconstitutional.
In arguing against the law, Nebbia invoked the

Fourteenth Amendment’s due process clause: the
establishment of fixed milk prices interfered with
his ability to conduct his business. Attorneys for
the state countered that the law authorizing the
board to set prices was a valid exercise of state
police power. New York had reached this position,
the attorneys claimed, after conducting an
“exhaustive investigation of conditions in the milk
industry in the States.” Among the findings of the
investigation were these:
Milk is an essential item of the diet. It cannot

long be stored. It is an excellent medium for
growth of bacteria. These facts necessitate
safeguards in its production and handling for
human consumption that greatly increase the
cost of the business. Failure of producers to
receive a reasonable return for their labor and
investment over an extended period threaten a
relaxation of vigilance against contamination.
The production and distribution of milk is a
paramount industry of the state, and largely
affects the health and prosperity of its people.
Dairying yields fully one-half of the total
income from all farm products. Dairy farm
investment amounts to approximately $1
billion. Curtailment or destruction of the dairy
industry would cause a serious economic loss
to the people of the state.
In addition to the general price decline, other
causes for the low price of milk include a
periodic increase in the number of cows and in
milk production; the prevalence of unfair and
destructive trade practices in the distribution
of milk, leading to a drop in prices in the
metropolitan area and other markets; and the
failure of transportation and distribution
charges to be reduced in proportion to the
reduction in retail prices for milk and cream.
To help stabilize the market, the New York Milk

Control Board fixed the price of a quart of milk at
nine cents. When grocery store owner Leo Nebbia,
pictured above, sold two quarts of milk and a loaf
of bread for eighteen cents, the state convicted
him of violating the board’s order. In 1934 the
Supreme Court rejected Nebbia’s claim that the
order violated his constitutional rights, ruling that
it was a valid exercise of state power.
Democrat & Chronicle

Democrat & Chronicle
Arguments:
For the appellant, Leo Nebbia:
Laws in other states to fix prices of common
commodities have been struck down by the
lower courts for being in conflict with the due
process clause of the Fourteenth Amendment.
The milk control law discriminates against
Nebbia because its provisions are more
restrictive on shopkeepers than on those who
sell milk in other ways, such as home delivery.
The nation’s economic emergency does not
suspend the Constitution.
The milk control law violates the liberties of
buyer and seller freely to reach an agreement
over a sales price for a wholesome product.
For the appellee, state of New

York:
The necessity for any exercise of the state’s
police power is first to be determined by the
legislature. Here, the New York legislature has
found a need to impose controls on the buying
and selling of milk.
Because of the importance of milk, it may be
regulated in much the same manner as a
public utility.
Fixing prices is a common form of utility
regulation.
A clear relationship exists between the control
of milk prices and the public interest.
Therefore, the law should be sustained.
Mr. Justice Roberts Delivered the Opinion of

the Court.
The . . . question is whether . . . the enforcement

of [New York’s law] denied the appellant the due
process secured to him by the Fourteenth
Amendment. . . .
Under our form of government the use of property

and the making of contracts are normally matters
of private and not of public concern. The general
rule is that both shall be free of governmental
interference. But neither property rights nor
contract rights are absolute; for government
cannot exist if the citizen may at will use his
property to the detriment of his fellows, or
exercise his freedom of contract to work them
harm. Equally fundamental with the private right
is that of the public to regulate it in the common
interest. As Chief Justice Marshall said, speaking
specifically of inspection laws, such laws form “a
portion of that immense mass of legislation, which
embraces every thing within the territory of a
State . . . all which can be most advantageously
exercised by the States themselves. Inspection
laws, quarantine laws, health laws of every
description, as well as laws for regulating the
internal commerce of a State, . . . are component
parts of this mass.” . . .
Thus has this court from the early days affirmed

that the power to promote the general welfare is
inherent in government. Touching the matters
committed to it by the Constitution, the United
States possesses the power, as do the states in
their sovereign capacity touching all subjects
jurisdiction of which is not surrendered to the
federal government. . . . These correlative rights,
that of the citizen to exercise exclusive dominion
over property and freely to contract about his
affairs, and that of the state to regulate the use of
property and the conduct of business, are always
in collision. No exercise of the private right can be
imagined which will not in some respect, however
slight, affect the public; no exercise of the
legislative prerogative to regulate the conduct of
the citizen which will not to some extent abridge
his liberty or affect his property. But subject only
to constitutional restraint the private right must
yield to the public need. . . .
The milk industry in New York has been the

subject of long-standing and drastic regulation in
the public interest. The legislative investigation of
1932 was persuasive of the fact that for this and
other reasons unrestricted competition
aggravated existing evils, and the normal law of
supply and demand was insufficient to correct
maladjustments detrimental to the community.
The inquiry disclosed destructive and
demoralizing competitive conditions and unfair
trade practices which resulted in retail price-
cutting and reduced the income of the farmer
below the cost of production. We do not
understand the appellant to deny that in these
circumstances the legislature might reasonably
consider further regulation and control desirable
for protection of the industry and the consuming
public. That body believed conditions could be
improved by preventing destructive price-cutting
by stores which, due to the flood of surplus milk,
were able to buy at much lower prices than the
larger distributors and to sell without incurring
the delivery costs of the latter. In the order of
which complaint is made the Milk Control Board
fixed a price of ten cents per quart for sales by a
distributor to a consumer, and nine cents by a
store to a consumer, thus recognizing the lower
costs of the store, and endeavoring to establish a
differential which would be just to both. In the
light of the facts the order appears not to be
unreasonable or arbitrary, or without relation to
the purpose to prevent ruthless competition from
destroying the wholesale price structure on which
the farmer depends for his livelihood, and the
community for an assured supply of milk.
But we are told that because the law essays to

control prices it denies due process.
Notwithstanding the admitted power to correct
existing economic ills by appropriate regulation of
business, even though an indirect result may be a
restriction of the freedom of contract or a
modification of charges for services or the price of
commodities, the appellant urges that direct
fixation of prices is a type of regulation absolutely
forbidden. His position is that the Fourteenth
Amendment requires us to hold the challenged
statute void for this reason alone. The argument
runs that the public control of rates or prices is
per se unreasonable and unconstitutional, save as
applied to businesses affected with a public
interest; that a business so affected is one in
which property is devoted to an enterprise of a
sort which the public itself might appropriately
undertake, or one whose owner relies on a public
grant or franchise for the right to conduct the
business, or in which he is bound to serve all who
apply; in short, such as is commonly called a
public utility; or a business in its nature a
monopoly. The milk industry, it is said, possesses
none of these characteristics, and, therefore, not
being affected with a public interest, its charges
may not be controlled by the state. Upon the
soundness of this contention the appellant’s case
against the statute depends.
We may as well say at once that the dairy industry

is not, in the accepted sense of the phrase, a
public utility. . . . But if, as must be conceded, the
industry is subject to regulation in the public
interest, what constitutional principle bars the
state from correcting existing maladjustments by
legislation touching prices? We think there is no
such principle. The due process clause makes no
mention of sales or of prices any more than it
speaks of business or contracts or buildings or
other incidents of property. The thought seems
nevertheless to have persisted that there is
something peculiarly sacrosanct about the price
one may charge for what he makes or sells, and
that, however able to regulate other elements of
manufacture or trade, with incidental effect upon
price, the state is incapable of directly controlling
the price itself. This view was negatived many
years ago. Munn v. Illinois. . . .
It is clear that there is no closed class or category

of businesses affected with a public interest, and
the function of courts in the application of the
Fifth and Fourteenth Amendments is to determine
in each case whether circumstances vindicate the
challenged regulation as a reasonable exertion of
governmental authority or condemn it as arbitrary
or discriminatory. The phrase “affected with a
public interest” can, in the nature of things, mean
no more than that an industry, for adequate
reason, is subject to control for the public good. In
several of the decisions of this court wherein the
expressions “affected with a public interest,” and
“clothed with a public use,” have been brought
forward as the criteria of the validity of price
control, it has been admitted that they are not
susceptible of definition and form an
unsatisfactory test of the constitutionality of
legislation directed at business practices or
prices. These decisions must rest, finally, upon the
basis that the requirements of due process were
not met because the laws were found arbitrary in
their operation and effect. But there can be no
doubt that upon proper occasion and by
appropriate measures the state may regulate a
business in any of its aspects, including the prices
to be charged for the products or commodities it
sells.
So far as the requirement of due process is

concerned, and in the absence of other
constitutional restriction, a state is free to adopt
whatever economic policy may reasonably be
deemed to promote public welfare, and to enforce
that policy by legislation adapted to its purpose.
The courts are without authority either to declare
such policy, or, when it is declared by the
legislature, to override it. If the laws passed are
seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process
are satisfied, and judicial determination to that
effect renders a court functus officio [i.e., the
court has completed its task and lacks the
authority to do more]. . . . And it is equally clear
that if the legislative policy be to curb
unrestrained and harmful competition by
measures which are not arbitrary or
discriminatory it does not lie with the courts to
determine that the rule is unwise. With the
wisdom of the policy adopted, the adequacy or
practicability of the law enacted to forward it, the
courts are both incompetent and unauthorized to
deal. The course of decision in this court exhibits a
firm adherence to these principles. Times without
number we have said that the legislature is
primarily the judge of the necessity of such an
enactment, that every possible presumption is in
favor of its validity, and that though the court may
hold views inconsistent with the wisdom of the
law, it may not be annulled unless palpably in
excess of legislative power. . . .
Tested by these considerations we find no basis in

the due process clause of the Fourteenth
Amendment for condemning the provisions of the .
. . Law here drawn into question.
Separate Opinion of MR.

JUSTICE MCREYNOLDS.
Regulation to prevent recognized evils in business
has long been upheld as permissible legislative
action. But fixation of the price at which A,
engaged in an ordinary business, may sell, in
order to enable B, a producer, to improve his
condition, has not been regarded as within
legislative power. This is not regulation, but
management, control, dictation—it amounts to the
deprivation of the fundamental right which one
has to conduct his own affairs honestly and along
customary lines. The argument advanced here
would support general prescription of prices for
farm products, groceries, shoes, clothing, all the
necessities of modern civilization, as well as labor,
when some Legislature finds and declares such
action advisable and for the public good. This
Court has declared that a state may not by
legislative fiat convert a private business into a
public utility. And if it be now ruled that one
dedicates his property to public use whenever he
embarks on an enterprise which the Legislature
may think it desirable to bring under control, this
is but to declare that rights guaranteed by the
Constitution exist only so long as supposed public
interest does not require their extinction. To adopt
such a view, of course, would put an end to liberty
under the Constitution. . . .
Not only does the statute interfere arbitrarily with

the rights of the little grocer to conduct his
business according to standards long accepted—
complete destruction may follow; but it takes away
the liberty of 12,000,000 consumers to buy a
necessity of life in an open market. It imposes
direct and arbitrary burdens upon those already
seriously impoverished with the alleged immediate
design of affording special benefits to others. To
him with less than 9 cents it says: You cannot
procure a quart of milk from the grocer although
he is anxious to accept what you can pay and the
demands of your household are urgent! A
superabundance; but no child can purchase from a
willing storekeeper below the figure appointed by
three men at headquarters! And this is true
although the storekeeper himself may have bought
from a willing producer at half that rate and must
sell quickly or lose his stock through deterioration.
The fanciful scheme is to protect the farmer
against undue exactions by prescribing the price
at which milk disposed of by him at will may be
resold! . . .
The judgment of the court below should be
reversed.
Mr. Justice VAN DEVANTER, Mr. Justice

SUTHERLAND, and Mr. Justice BUTLER authorize
me to say that they concur in this opinion.
Although Nebbia, in retrospect, was a sign that the

heyday of substantive due process was drawing to a
close, that was hardly the case in the context of the
day. As you will recall from the chapters on
federalism (6) and the commerce clause (7), for the
next two years the Court generally continued along
its laissez-faire path of the 1920s—seemingly
ignorant of the political, economic, and social events
transpiring around it. In particular, it refused to let
go of the doctrine of substantive due process.
Just two years after Nebbia, it decided another New

York case, but in a quite different way. At issue in
Morehead v. New York ex rel. Tipaldo (1936) was
a 1933 minimum wage law that “declared it to be
against public policy for any employer to employ any
woman at an oppressive and unreasonable wage.” It
defined as unreasonable a wage that was “both less
than the fair and reasonable value of the services
rendered and less than sufficient to meet the
minimum cost of living necessary for health.” If a
woman thought that her employer was paying her
inadequate wages, she could file a complaint with a
state board. Women employees of a laundry invoked
this procedure against Joseph Tipaldo, the manager
of the operation. In 1934 Tipaldo was found guilty:
he paid his employees only $7.00 to $10.00 per
week, although the board had set $12.40 as a
minimum wage.
When the case reached the Supreme Court, Tipaldo

received some support from an unexpected source:
the feminist National Woman’s Party (NWP).
Although it did not agree with his substantive due
process claim, the NWP argued that the New York
law violated the Constitution on the ground that it
treated the sexes differently and fostered inequality.
As NWP leaders explained,
The Woman’s Party stands for equality between

men and women in all laws. This includes laws
affecting the position of women in industry as
well as all other laws. The Woman’s Party does
not take any position with regard to the merits of
minimum wage legislation, but it does demand
that such legislation, if passed, shall be for both
sexes. It is opposed to all legislation having a sex
basis and applying to one sex alone.19
19 Quoted in Vose, Constitutional Change, 212.
Attorneys defending the state’s action, including

NCL representatives, therefore, faced a difficult
challenge. The constituency benefiting from the law
—women—was divided over the issue, but more
important, the attorneys had to deal with the Adkins
precedent. In part, they did so by trying to
distinguish this law from the one at issue in Adkins;
they also tried to demonstrate that economic
conditions had changed considerably since 1923 and
required this kind of regulation. Moreover, they had
the Nebbia ruling in hand. It was just possible that
the Court might go along with the state. But it was
not to be. In keeping with their rulings on federal
New Deal legislation and as a result of Justice Owen
J. Roberts’s defection from the Nebbia majority, the
Court struck the New York law. Writing for a
majority of five, Justice Pierce Butler was just as
emphatic on the subject of substantive due process
as the Adkins Court had been: “Freedom of contract
is the general rule and restraint the exception.”
The End of Economic

Substantive Due Process: West
Coast Hotel v. Parrish
The Court’s refusal to uphold federal New Deal
legislation, as you recall from Chapter 7, angered
President Roosevelt. Its ruling in Morehead cut even
deeper. As Peter Irons notes, “More than any other
decision by the Court during the New Deal period,
Morehead unleashed a barrage of criticism from
conservatives as well as from liberals,” who
sympathized with the plight of women and children
in the workforce.20 Even the Republican Party’s
1936 platform included a plank supporting the
adoption of minimum wage and maximum hours laws
of the sort struck down in Morehead.
20 Irons, The New Deal Lawyers, 278.
Amid all this pressure, including Roosevelt’s Court-

packing scheme, the Court did a major about-face on
the constitutionality of New Deal programs (see
Chapter 7). Prominent among the decisions ushering
in the Court’s new jurisprudence was West Coast
Hotel v. Parrish, a ruling that would mean the
demise of economic substantive due process.
West Coast Hotel v. Parrish 300 U.S. 379 (1937)
court/300/379.html

Stone)
4 (Butler, McReynolds, Sutherland, Van Devanter)

DISSENTING OPINION: Sutherland
Facts:
Elsie Parrish worked intermittently as a
chambermaid in a Washington State hotel for a
wage of twenty-two cents to twenty-five cents per
hour.21 When she was discharged in 1935, she
asked the management for back pay of $216.19,
“the difference between what she had received
and what she would have gotten” if the hotel had
abided by the Washington Wage Board’s minimum
wage rate of $14.30 per week.
21 We derive this account from William E.

Leuchtenburg, “The Case of the Wenatchee
Chambermaid,” in Garraty, Quarrels That Have
Shaped the Constitution.
The hotel offered her $17.00, but Parrish refused

to settle. Because of the community property laws
in the state, she and her husband jointly brought
suit against the hotel. Parrish found an attorney
willing to represent her, but the attorney could not
generate much interest in her case among outside
organizations. Even the NCL declined to
participate, viewing such efforts as a waste of time
in light of Morehead. The Washington Supreme
Court ruled in favor of Parrish, and the hotel
sought Supreme Court review.
Arguments:
For the appellant, West Coast Hotel
Company:
In Adkins v. Children’s Hospital the Court struck
down a similar regulation of wages for women
as a violation of the due process clause of the
Fifth Amendment.
Although Adkins involved a regulation imposed
by the federal government, the due process
language of the Fifth Amendment is identical to
that of the Fourteenth. Therefore, there is no
reason to conclude that the Adkins precedent
is not applicable to similar state regulations.
In Morehead v. New York ex rel. Tipaldo the
Court declared unconstitutional a state law
that prohibited employers from paying women
an oppressive and unreasonable wage.
Adkins and Morehead should control this case.
For the appellees, Ernest and

Elsie Parrish:
It is the legislature that first decides when the
public welfare necessitates regulation under
the state’s police powers.
The Washington legislature determined that
the state’s general welfare required this
minimum wage law. Unless the law is entirely
beyond the state’s legislative power or
operates in an unreasonable manner, it should
be sustained.
The Adkins precedent does not apply. The
states’ police powers are much broader than
the powers of the federal government. That the
federal government exceeded its powers does
not necessarily mean that a state abuses its
authority when it passes a similar law.
The state legislature determined that an evil
existed and that the minimum wage law was
an appropriate remedy. The law was upheld by
the state’s highest court. The presumption of
constitutionality should apply, and the
Supreme Court should also uphold the law.
This case presents the question of the

constitutional validity of the minimum wage law of
the State of Washington. . . .
The appellant relies upon the decision of this

Court in Adkins v. Children’s Hospital, which held
invalid the District of Columbia Minimum Wage
Act which was attacked under the due process
clause of the Fifth Amendment. On the argument
at bar, counsel for the appellees attempted to
distinguish the Adkins Case upon the ground that
the appellee was employed in a hotel and that the
business of an innkeeper was affected with a
public interest. That effort at distinction is
obviously futile, as it appears that in one of the
cases ruled by the Adkins opinion the employee
was a woman employed as an elevator operator in
a hotel.
The recent case of Morehead v. New York came

here on certiorari to the New York court which
had held the New York minimum wage act for
women to be invalid. A minority of this Court
thought that the New York statute was
distinguishable in a material feature from that
involved in the Adkins Case and that for that and
other reasons the New York statute should be
sustained. But the Court of Appeals of New York
had said that it found no material difference
between the two statutes and this Court held that
the “meaning of the statute” as fixed by the
decisions of the state court “must be accepted
here as if the meaning had been specifically
expressed in the enactment.” That view led to the
affirmance by this Court of the judgment in the
Morehead Case, as the Court considered that the
only question before it was whether the Adkins
Case was distinguishable and that reconsideration
of that decision had not been sought. Upon that
point the Court said: “The petition for the writ
sought review upon the ground that this case
[Morehead] is distinguishable from that one
[Adkins]. No application has been made for
reconsideration of the constitutional question
there decided. The validity of the principles upon
which that decision rests is not challenged. This
court confines itself to the ground upon which the
writ was asked or granted. . . . Here the review
granted was no broader than that sought by the
petitioner. . . . He is not entitled and does not ask
to be heard upon the question whether the Adkins
Case should be overruled. He maintains that it
may be distinguished on the ground that the
statutes are vitally dissimilar.”
We think that the question which was not deemed

to be open in the Morehead Case is open and is
necessarily presented here. The Supreme Court of
Washington has upheld the minimum wage statute
of that State. It has decided that the statute is a
reasonable exercise of the police power of the
State. In reaching that conclusion the state court
has invoked principles long established by this
Court in the application of the Fourteenth
Amendment. The state court has refused to regard
the decision in the Adkins Case as determinative
and has pointed to our decisions both before and
since that case as justifying its position. We are of
the opinion that this ruling of the state court
demands on our part a reexamination of the
Adkins Case. The importance of the question, in
which many States having similar laws are
concerned, the close division by which the
decision in the Adkins Case was reached, and the
economic conditions which have supervened, and
in the light of which the reasonableness of the
exercise of the protective power of the State must
be considered, make it not only appropriate, but
we think imperative, that in deciding the present
case the subject should receive fresh
consideration. . . .
The principle which must control our decision is

not in doubt. The constitutional provision invoked
is the due process clause of the Fourteenth
Amendment governing the States, as the due
process clause invoked in the Adkins Case
governed Congress. In each case the violation
alleged by those attacking minimum wage
regulation for women is deprivation of freedom of
contract. What is this freedom? The Constitution
does not speak of freedom of contract. It speaks of
liberty and prohibits the deprivation of liberty
without due process of law. In prohibiting that
deprivation the Constitution does not recognize an
absolute and uncontrollable liberty. Liberty in
each of its phases has its history and connotation.
But the liberty safeguarded is liberty in a social
organization which requires the protection of law
against the evils which menace the health, safety,
morals and welfare of the people. Liberty under
the Constitution is thus necessarily subject to the
restraints of due process, and regulation which is
reasonable in relation to its subject and is adopted
in the interests of the community is due process.
This essential limitation of liberty in general

governs freedom of contract in particular. More
than twenty-five years ago we set forth the
applicable principle in these words after referring
to the cases where the liberty guaranteed by the
Fourteenth Amendment had been broadly
described:
“But it was recognized in the cases cited, as in

many others, that freedom of contract is a
qualified and not an absolute right. There is no
absolute freedom to do as one wills or to
contract as one chooses. The guaranty of
liberty does not withdraw from legislative
supervision that wide department of activity
which consists of the making of contracts, or
deny to government the power to provide
restrictive safeguards. Liberty implies the
absence of arbitrary restraint, not immunity
from reasonable regulations and prohibitions
imposed in the interests of the community.”
Chicago, Burlington & Quincy R. Co. v.
McGuire [1911].
This power under the Constitution to restrict

freedom of contract has had many illustrations.
That it may be exercised in the public interest
with respect to contracts between employer and
employee is undeniable. . . . In dealing with the
relation of employer and employed, the legislature
has necessarily a wide field of discretion in order
that there may be suitable protection of health
and safety, and that peace and good order may be
promoted through regulations designed to insure
wholesome conditions of work and freedom from
oppression.
The point that has been strongly stressed that

adult employees should be deemed competent to
make their own contracts was decisively met
nearly forty years ago in Holden v. Hardy, where
we pointed out the inequality in the footing of the
parties. . . .
It is manifest that this established principle is

peculiarly applicable in relation to the
employment of women in whose protection the
State has a special interest. That phase of the
subject received elaborate consideration in Muller
v. Oregon (1908). . . . In later rulings this Court
sustained the regulation of hours of work of
women employees.
This array of precedents and the principles they

applied were thought by the dissenting Justices in
the Adkins Case to demand that the minimum
wage statute be sustained. The validity of the
distinction made by the Court between a minimum
wage and a maximum of hours in limiting liberty
of contract was especially challenged. That
challenge persists and is without any satisfactory
answer. . . .
One of the points which was pressed by the Court

in supporting its ruling in the Adkins Case was
that the standard set up by the District of
Columbia Act did not take appropriate account of
the value of the services rendered. In the
Morehead Case, the minority thought that the
New York statute had met that point in its
definition of a “fair wage” and that it accordingly
presented a distinguishable feature which the
Court could recognize within the limits which the
Morehead petition for certiorari was deemed to
present. The Court, however, did not take that
view and the New York Act was held to be
essentially the same as that for the District of
Columbia. The statute now before us is like the
latter, but we are unable to conclude that in its
minimum wage requirement the State has passed
beyond the boundary of its broad protective
power.
The minimum wage to be paid under the

Washington statute is fixed after full consideration
by representatives of employers, employees and
the public. It may be assumed that the minimum
wage is fixed in consideration of the services that
are performed in the particular occupations under
normal conditions. Provision is made for special
licenses at less wages in the case of women who
are incapable of full service. The statement of Mr.
Justice Holmes in the Adkins Case is pertinent:
“This statute does not compel anybody to pay
anything. It simply forbids employment at rates
below those fixed as the minimum requirement of
health and right living. It is safe to assume that
women will not be employed at even the lowest
wages allowed unless they earn them, or unless
the employer’s business can sustain the burden. In
short the law in its character and operation is like
hundreds of so-called police laws that have been
upheld.” . . .
We think that the views thus expressed are sound
and that the decision in the Adkins Case was a
departure from the true application of the
principles governing the regulation by the State of
the relation of employer and employed. Those
principles have been reenforced by our
subsequent decisions. . . .
With full recognition of the earnestness and vigor

which characterize the prevailing opinion in the
Adkins Case, we find it impossible to reconcile
that ruling with these well-considered
declarations. What can be closer to the public
interest than the health of women and their
protection from unscrupulous and overreaching
employers? And if the protection of women is a
legitimate end of the exercise of state power, how
can it be said that the requirement of the payment
of a minimum wage fairly fixed in order to meet
the very necessities of existence is not an
admissible means to that end? The legislature of
the State was clearly entitled to consider the
situation of women in employment, the fact that
they are in the class receiving the least pay, that
their bargaining power is relatively weak, and that
they are the ready victims of those who would
take advantage of their necessitous
circumstances. The legislature was entitled to
adopt measures to reduce the evils of the
“sweating system,” the exploiting of workers at
wages so low as to be insufficient to meet the bare
cost of living, thus making their very helplessness
the occasion of a most injurious competition. The
legislature had the right to consider that its
minimum wage requirements would be an
important aid in carrying out its policy of
protection. The adoption of similar requirements
by many States evidences a deep-seated
conviction both as to the presence of the evil and
as to the means adapted to check it. Legislative
response to the conviction cannot be regarded as
arbitrary or capricious and that is all we have to
decide. Even if the wisdom of the policy be
regarded as debatable and its effects uncertain,
still the legislature is entitled to its judgment.
There is an additional and compelling

consideration which recent economic experience
has brought into a strong light. The exploitation of
a class of workers who are in an unequal position
with respect to bargaining power and are thus
relatively defenceless against the denial of a living
wage is not only detrimental to their health and
well-being but casts a direct burden for their
support upon the community. What these workers
lose in wages the taxpayers are called upon to pay.
The bare cost of living must be met. We may take
judicial notice of the unparalleled demands for
relief which arose during the recent period of
depression and still continue to an alarming extent
despite the degree of economic recovery which
has been achieved. It is unnecessary to cite official
statistics to establish what is of common
knowledge through the length and breadth of the
land. While in the instant case no factual brief has
been presented, there is no reason to doubt that
the State of Washington has encountered the same
social problem that is present elsewhere. The
community is not bound to provide what is in
effect a subsidy for unconscionable employers.
The community may direct its law-making power
to correct the abuse which springs from their
selfish disregard of the public interest. The
argument that the legislation in question
constitutes an arbitrary discrimination, because it
does not extend to men, is unavailing. This Court
has frequently held that the legislative authority,
acting within its proper field, is not bound to
extend its regulation to all cases which it might
possibly reach. The legislature “is free to
recognize degrees of harm and it may confine its
restrictions to those classes of cases where the
need is deemed to be clearest.” . . .
Our conclusion is that the case of Adkins v.

Children’s Hospital should be, and it is, overruled.
The judgment of the Supreme Court of the State of
Washington is affirmed.
MR. JUSTICE SUTHERLAND,

dissenting.
The principles and authorities relied upon to
sustain the judgment, were considered in Adkins v.
Children’s Hospital and Morehead v. New York ex
rel. Tipaldo, and their lack of application to cases
like the one in hand was pointed out. A sufficient
answer to all that is now said will be found in the
opinions of the court in those cases. Nevertheless,
in the circumstances, it seems well to restate our
reasons and conclusions.
Under our form of government, where the written

Constitution, by its own terms, is the supreme law,
some agency, of necessity, must have the power to
say the final word as to the validity of a statute
assailed as unconstitutional. The Constitution
makes it clear that the power has been intrusted
to this court when the question arises in a
controversy within its jurisdiction; and so long as
the power remains there, its exercise cannot be
avoided without betrayal of the trust.
It has been pointed out many times, as in the

Adkins case, that this judicial duty is one of
gravity and delicacy, and that rational doubts must
be resolved in favor of the constitutionality of the
statute. But whose doubts, and by whom resolved?
Undoubtedly it is the duty of a member of the
court, in the process of reaching a right
conclusion, to give due weight to the opposing
views of his associates; but in the end, the
question which he must answer is not whether
such views seem sound to those who entertain
them, but whether they convince him that the
statute is constitutional or engender in his mind a
rational doubt upon that issue. The oath which he
takes as a judge is not a composite oath, but an
individual one. And in passing upon the validity of
a statute, he discharges a duty imposed upon him,
which cannot be consummated justly by an
automatic acceptance of the views of others which
have neither convinced, nor created a reasonable
doubt in, his mind. If upon a question so important
he thus surrender his deliberate judgment, he
stands forsworn. He cannot subordinate his
convictions to that extent and keep faith with his
oath or retain his judicial and moral
independence.
The suggestion that the only check upon the

exercise of the judicial power, when properly
invoked, to declare a constitutional right superior
to an unconstitutional statute is the judge’s own
faculty of self-restraint, is both ill considered and
mischievous. Self-restraint belongs in the domain
of will and not of judgment. The check upon the
judge is that imposed by his oath of office, by the
Constitution and by his own conscientious and
informed convictions; and since he has the duty to
make up his own mind and adjudge accordingly, it
is hard to see how there could be any other
restraint. This court acts as a unit. It cannot act in
any other way; and the majority (whether a bare
majority or a majority of all but one of its
members), therefore, establishes the controlling
rule as the decision of the court, binding, so long
as it remains unchanged, equally upon those who
disagree and upon those who subscribe to it.
Otherwise, orderly administration of justice would
cease. But it is the right of those in the minority to
disagree, and sometimes, in matters of grave
importance, their imperative duty to voice their
disagreement at such length as the occasion
demands—always, of course, in terms which,
however forceful, do not offend the proprieties or
impugn the good faith of those who think
otherwise.
It is urged that the question involved should now

receive fresh consideration, among other reasons,
because of “the economic conditions which have
supervened”; but the meaning of the Constitution
does not change with the ebb and flow of
economic events. We frequently are told in more
general words that the Constitution must be
construed in the light of the present. If by that it is
meant that the Constitution is made up of living
words that apply to every new condition which
they include, the statement is quite true. But to
say, if that be intended, that the words of the
Constitution mean today what they did not mean
when written—that is, that they do not apply to a
situation now to which they would have applied
then—is to rob that instrument of the essential
element which continues it in force as the people
have made it until they, and not their official
agents, have made it otherwise. . . .
The judicial function is that of interpretation; it

does not include the power of amendment under
the guise of interpretation. To miss the point of
difference between the two is to miss all that the
phrase “supreme law of the land” stands for and
to convert what was intended as inescapable and
enduring mandates into mere moral reflections.
If the Constitution, intelligently and reasonably

construed in the light of these principles, stands in
the way of desirable legislation, the blame must
rest upon that instrument, and not upon the court
for enforcing it according to its terms. The remedy
in that situation—and the only true remedy—is to
amend the Constitution.
The Legacy of West Coast Hotel

West Coast Hotel was an explicit repudiation of
economic substantive due process. In one fell swoop,
the justices overruled Adkins and changed the way
the Court viewed state regulatory efforts. But the
period stretching from 1890 through 1936 continues
to have an impact on Supreme Court rulings.
In place of substantive due process the Court
adopted a rational basis test that presumes the
constitutionality of economic legislation and assigns
responsibility to the law’s challengers to show that
no rational relationship exists between the law and a
legitimate government function.22 As such, it is
similar to the position expressed by Chief Justice
Waite in Munn v. Illinois. The difference between
Waite’s standard in Munn and that of the
contemporary Court generally lies in application.
The Waite Court and its successors allowed
incursions into their standard, and we should
remember that the standard was amenable to
exceptions; modern Courts do not. Indeed, in the
post–New Deal period, the Court has generally
rejected challenges to state economic regulatory
efforts. One reason for these decisions is the nature
of the prevailing legal test: it is extremely difficult
for attorneys to demonstrate that there is no
conceivable rational relationship between any given
legislation and a legitimate government interest. In
addition, the modern Court has been averse to
conducting its own inquiry into what is and is not in
the public interest or what is rational and what is
not. Instead, the Court tends to defer to the
judgments of the legislature.
22 This position is consistent with the Court’s

rulings in related areas. Particularly important is the
decision in United States v. Carolene Products
(1938), in which the justices announced that they
would henceforth generally defer to the legislature
and give only minimal scrutiny to the reasonableness
of economic regulations. In that same decision, the
Court pledged to give more searching scrutiny to
laws affecting civil liberties.
Williamson v. Lee Optical Company (1955) provides a

good example of how the mid-twentieth-century
Court treated Fourteenth Amendment economic
claims. This case can be compared with the classic
statements for and against a substantive
interpretation of the due process clause: Miller’s in
Slaughterhouse, Waite’s in Munn, Peckham’s in
Lochner, and so forth.
Williamson v. Lee Optical Company 348 U.S. 483

(1955)
court/348/483.html

Frankfurter, Minton, Reed, Warren)
OPINION OF THE COURT: Douglas

NOT PARTICIPATING: Harlan
Facts:
In 1953 Oklahoma passed a law that made it
“unlawful for any person . . . to fit, adjust, adapt,
or to apply . . . lenses, frames . . . or any other
optical appliances to the face” unless that person
was a licensed ophthalmologist, “a physician who
specializes in the care of eyes,” or an optometrist,
“one who examines eyes for refractory error . . .
and fills prescriptions.” An optician, an “artisan
qualified to grind lenses to fill prescriptions,”
could do so only with a written prescription from
an ophthalmologist or optometrist.
Lee Optical Company challenged the law, arguing

that it bore no reasonable relation to a public
health and welfare interest and unconstitutionally
deprived opticians of their right to perform their
craft. The state argued that the statute was a
constitutional exercise of state police power.
Arguments:
For the appellant, Mac Q. Williamson,
Oklahoma attorney general, et al.:
The furnishing of eyeglasses to the public is a

matter of public health and welfare and
therefore subject to the police powers of the
state.
The aim of the law is to provide citizens of
Oklahoma with the best possible visual care.
The Court should defer to the state legislature
in determining appropriate public policy. There
should be a presumption of constitutionality
with the burden on the challenger to prove the
invalidity of the law beyond a reasonable
doubt. As long as the law is a reasonable
measure in pursuit of a legitimate interest, the
Court should not interfere.
For the respondent, Lee Optical

of Oklahoma:
The optician is a skilled craftsman whose
training makes him at least as qualified as an
ophthalmologist or an optometrist to fit and
adjust eyeglasses. By treating opticians
differently the state is denying equal protection
of the laws.
Opticians have been engaged in these now-
prohibited activities for hundreds of years.
Unreasonably denying opticians the right to
pursue their traditional occupation violates
principles of due process of law.
This law is not a reasonable public health
measure. Even if an optician should make a
mistake in the duplicating of lenses or the
fitting and adjusting of glasses, no harm to the
health of the patient would result.
Mr. Justice Douglas Delivered the Opinion of

the Court.
The effect of [the act] is to forbid the optician from

fitting or duplicating lenses without a prescription
from an ophthalmologist or optometrist. In
practical effect, it means that no optician can fit
old glasses into new frames or supply a lens,
whether it be a new lens or one to duplicate a lost
or broken lens, without a prescription. The District
Court conceded that it was in the competence of
the police power of a State to regulate the
examination of the eyes. But it rebelled at the
notion that a State could require a prescription
from an optometrist or ophthalmologist “to take
old lenses and place them in new frames and then
fit the completed spectacles to the face of the
eyeglass wearer.” . . . It was, accordingly, the
opinion of the court that this provision of the law
violated the Due Process Clause by arbitrarily
interfering with the optician’s right to do business.
...
The Oklahoma law may exact a needless, wasteful

requirement in many cases. But it is for the
legislature, not the courts, to balance the
advantages and disadvantages of the new
requirement. It appears that in many cases the
optician can easily supply the new frames or new
lenses without reference to the old written
prescription. It also appears that many written
prescriptions contain no directive data in regard
to fitting spectacles to the face. But in some cases
the directions contained in the prescription are
essential, if the glasses are to be fitted so as to
correct the particular defects of vision or alleviate
the eye condition. The legislature might have
concluded that the frequency of occasions when a
prescription is necessary was sufficient to justify
this regulation of the fitting of eyeglasses.
Likewise, when it is necessary to duplicate a lens,
a written prescription may or may not be
necessary. But the legislature might have
concluded that one was needed often enough to
require one in every case. Or the legislature may
have concluded that eye examinations were so
critical, not only for correction of vision but also
for detection of latent ailments or diseases, that
every change in frames and every duplication of a
lens should be accompanied by a prescription
from a medical expert. To be sure, the present law
does not require a new examination of the eyes
every time the frames are changed or the lenses
duplicated. For if the old prescription is on file
with the optician, he can go ahead and make the
new fitting or duplicate the lenses. But the law
need not be in every respect logically consistent
with its aims to be constitutional. It is enough that
there is an evil at hand for correction, and that it
might be thought that the particular legislative
measure was a rational way to correct it.
The day is gone when this Court uses the Due

Process Clause of the Fourteenth Amendment to
strike down state laws, regulatory of business and
industrial conditions, because they may be unwise,
improvident, or out of harmony with a particular
school of thought. . . . We emphasize again what
Chief Justice Waite said in Munn v. Illinois, . . .
“For protection against abuses by legislatures the
people must resort to the polls, not to the courts.”
Substantive Due Process:

Contemporary Relevance
Over the six decades since Williamson v. Lee Optical,
the Court has continued to reject substantive due
process attacks on state and local economic
regulatory policies, giving wide latitude to the
legislative branch in determining what is reasonable
economic policy.23 But the doctrine has not totally
disappeared. In fact, the use of the due process
clauses to find and protect rights has seen somewhat
of a resurgence, which has occurred in two areas
quite different from the commercial regulation cases
that were so important in earlier eras. First, the
Court has used substantive due process to address
questions of personal privacy. Second, it has applied
the due process clauses to improve the essential
fairness of the judicial system. In what directly
follows we take a close look at the issues of
excessive monetary damages awarded by juries and
problems associated with judicial conflicts of
interest. We take up personal privacy toward the end
of the chapter.
23 See, for example, Pennell v. City of San Jose

(1988) and City of Cuyahoga Falls, Ohio v. Buckeye
Community Hope Foundation (2003).

Applied to Juries and Judges
The subject of excessive monetary damages awarded
by juries not only has been at the center of the long-
standing political controversy over tort reform, but it
also raises an important legal question. It asks
whether jury awards for litigants who have been
unlawfully harmed can become so large as to
constitute an unreasonable denial of essential
fairness and a deprivation of property without due
process of law. The leading Supreme Court decision
in this area is BMW of North America v. Gore (1996),
which began when an Alabama doctor became
dissatisfied with the condition of the paint on his
newly acquired luxury automobile.
BMW of North America v. Gore 517 U.S. 559

(1996)
court/517/559.html

Vote: 5 (Breyer, Kennedy, O’Connor, Souter,

Stevens)
4 (Ginsburg, Rehnquist, Scalia, Thomas)

CONCURRING OPINION: Breyer
DISSENTING OPINIONS: Ginsburg, Scalia
Facts:
In January 1990 Dr. Ira Gore Jr. purchased a black
BMW sports sedan for $40,750.88 from an
authorized dealer in Birmingham, Alabama. Nine
months later he took the car to an independent
detailer for some appearance enhancements. The
detailer informed Gore that he believed the car
had been repainted. Gore, convinced that he had
been wronged, filed suit against BMW of North
America for failure to disclose that his new car
had undergone repainting prior to purchase. He
asked the court to award him compensatory and
punitive damages.24
24 The purpose of compensatory damages is to

reimburse wronged parties for actual damages
suffered. The purpose of punitive damages is to
punish wrongdoers for their unlawful acts.
At trial, BMW acknowledged a policy, adopted in

1983, concerning automobiles damaged in
manufacture or transport. If repairing the damage
cost more than 3 percent of the vehicle’s retail
value, the car was placed in company service and
later sold as used. If the damage amounted to less
than 3 percent of the car’s value, the vehicle was
fixed and sold as new, with no disclosure of the
repair history to either the dealer or the
purchaser. Because the cost to refinish the
automobile purchased by Gore amounted to only
1.5 percent of the car’s value, it was sold as new.
In support of his claim for compensatory damages,

Gore presented evidence that a refinished BMW
would fetch $4,000 less on the open market than
an identical model that had not been repainted. To
justify his claim for punitive damages, Gore
presented documentation that during the previous
decade BMW of North America sold approximately
one thousand refinished automobiles as new. BMW
replied that the new paint on Gore’s automobile
was every bit as good as the original factory finish,
and therefore the company was under no
obligation to disclose the refinishing.
The jury found in favor of Gore, awarding him

$4,000 in compensatory damages and $4 million
in punitive damages. The justification for the
punitive damage award was the jury’s conclusion
that BMW’s nondisclosure policy amounted to
“gross, oppressive, or malicious” fraud. BMW
asked that the award be set aside or reduced
because it was excessive. The trial court denied
the request. The state supreme court reduced the
punitive damage award to $2 million—not because
the original award was excessive, but because it
found fault with the jury’s method of arriving at
that figure. The jury erred, according to the state
supreme court, by considering BMW’s wrongdoing
in other states when it should have focused only
on the company’s behavior in Alabama. BMW, still
maintaining that the revised award was excessive,
requested review by the U.S. Supreme Court.
Arguments:
For the petitioner, BMW of North
America, Inc.:
The Alabama Supreme Court correctly found

that the jury’s $4 million punitive damages
award was excessive because it was based in
part on transactions that took place out of
state. Alabama has no authority to punish
extraterritorial transactions, and doing so is a
violation of due process of law.
The revised $2 million punitive damages award
is grossly excessive and violates the
substantive component of the due process
clause. The punishment is five hundred times
the actual and potential harm allegedly
suffered by Dr. Gore. In addition, the punitive
damages are one thousand times the civil
penalty for violating Alabama’s repair
disclosure statute.
The punitive damage award far exceeds what
is reasonably necessary to accomplish
Alabama’s interests in punishment and
deterrence.
The award also far exceeds the degree to
which BMW’s conduct could be considered
reprehensible.
For the respondent, Ira Gore Jr.:

The Constitution does not prohibit
consideration of out-of-state conduct in
determining the amount of punitive damages
needed to prevent a defendant from continuing
a nationwide policy of misbehavior.
The revised $2 million award was reasonably
calculated to prevent further harm to Alabama
consumers by forcing BMW to change its
nondisclosure policy.
BMW’s conduct was reprehensible.
The Court should refrain from setting a
particular ratio of punitive to actual damages
as a guide for determining excessive punitive
damages.
Court.
Punitive damages may properly be imposed to

further a State’s legitimate interests in punishing
unlawful conduct and deterring its repetition.
Gertz v. Robert Welch, Inc. (1974); Newport v. Fact
Concerts, Inc. (1981); [Pacific Mutual Life Ins. Co.
v.] Haslip (1991). In our federal system, States
necessarily have considerable flexibility in
determining the level of punitive damages that
they will allow in different classes of cases and in
any particular case. Most States that authorize
exemplary damages afford the jury similar
latitude, requiring only that the damages awarded
be reasonably necessary to vindicate the State’s
legitimate interests in punishment and deterrence.
See TXO [Production Corp. v. Alliance Resources
Corp., 1993]; Haslip. Only when an award can
fairly be categorized as “grossly excessive” in
relation to these interests does it enter the zone of
arbitrariness that violates the Due Process Clause
of the Fourteenth Amendment. . . .
No one doubts that a State may protect its citizens

by prohibiting deceptive trade practices and by
requiring automobile distributors to disclose
presale repairs that affect the value of a new car.
But the States need not, and in fact do not,
provide such protection in a uniform manner.
Some States rely on the judicial process to
formulate and enforce an appropriate disclosure
requirement by applying principles of contract and
tort law. Other States have enacted various forms
of legislation that define the disclosure obligations
of automobile manufacturers, distributors, and
dealers. The result is a patchwork of rules
representing the diverse policy judgments of
lawmakers in 50 States.
That diversity demonstrates that reasonable

people may disagree about the value of a full
disclosure requirement. . . .
We think it follows from these principles of state

sovereignty and comity that a State may not
impose economic sanctions on violators of its laws
with the intent of changing the tortfeasors’
[wrongdoers’] lawful conduct in other States.
Before this Court Dr. Gore argued that the large
punitive damages award was necessary to induce
BMW to change the nationwide policy that it
adopted in 1983. But by attempting to alter
BMW’s nationwide policy, Alabama would be
infringing on the policy choices of other States. To
avoid such encroachment, the economic penalties
that a State such as Alabama inflicts on those who
transgress its laws, whether the penalties take the
form of legislatively authorized fines or judicially
imposed punitive damages, must be supported by
the State’s interest in protecting its own
consumers and its own economy. Alabama may
insist that BMW adhere to a particular disclosure
policy in that State. Alabama does not have the
power, however, to punish BMW for conduct that
was lawful where it occurred and that had no
impact on Alabama or its residents. Nor may
Alabama impose sanctions on BMW in order to
deter conduct that is lawful in other jurisdictions.
. . . [This] award must be analyzed . . . with
consideration given only to the interests of
Alabama consumers, rather than those of the
entire Nation. When the scope of the interest in
punishment and deterrence that an Alabama court
may appropriately consider is properly limited, it
is apparent—for reasons that we shall now
address—that this award is grossly excessive.
Elementary notions of fairness enshrined in our

constitutional jurisprudence dictate that a person
receive fair notice not only of the conduct that will
subject him to punishment but also of the severity
of the penalty that a State may impose. Three
guideposts, each of which indicates that BMW did
not receive adequate notice of the magnitude of
the sanction that Alabama might impose for
adhering to the nondisclosure policy adopted in
1983, lead us to the conclusion that the $2 million
award against BMW is grossly excessive: the
degree of reprehensibility of the nondisclosure;
the disparity between the harm or potential harm
suffered by Dr. Gore and his punitive damages
award; and the difference between this remedy
and the civil penalties authorized or imposed in
comparable cases. We discuss these
considerations in turn.
Degree of Reprehensibility
Perhaps the most important indicium of the
reasonableness of a punitive damages award is the
degree of reprehensibility of the defendant’s
conduct. . . . This principle reflects the accepted
view that some wrongs are more blameworthy
than others. . . . In TXO, both the West Virginia
Supreme Court and the Justices of this Court
placed special emphasis on the principle that
punitive damages may not be “grossly out of
proportion to the severity of the offense.” . . .
In this case, none of the aggravating factors

associated with particularly reprehensible conduct
is present. The harm BMW inflicted on Dr. Gore
was purely economic in nature. The presale
refinishing of the car had no effect on its
performance or safety features, or even its
appearance for at least nine months after his
purchase. BMW’s conduct evinced no indifference
to or reckless disregard for the health and safety
of others. To be sure, infliction of economic injury,
especially when done intentionally through
affirmative acts of misconduct, or when the target
is financially vulnerable, can warrant a substantial
penalty. But this observation does not convert all
acts that cause economic harm into torts that are
sufficiently reprehensible to justify a significant
sanction in addition to compensatory damages. . . .
Finally, the record in this case discloses no

deliberate false statements, acts of affirmative
misconduct, or concealment of evidence of
improper motive, such as were present in Haslip
and TXO. We accept, of course, the jury’s finding
that BMW suppressed a material fact which
Alabama law obligated it to communicate to
prospective purchasers of repainted cars in that
State. But the omission of a material fact may be
less reprehensible than a deliberate false
statement, particularly when there is a good-faith
basis for believing that no duty to disclose exists.
. . . Because this case exhibits none of the
circumstances ordinarily associated with
egregiously improper conduct, we are persuaded
that BMW’s conduct was not sufficiently
reprehensible to warrant imposition of a $2
million exemplary damages award.
Ratio
The second and perhaps most commonly cited
indicium of an unreasonable or excessive punitive
damages award is its ratio to the actual harm
inflicted on the plaintiff. The principle that
exemplary damages must bear a “reasonable
relationship” to compensatory damages has a long
pedigree. . . . Our decisions in both Haslip and
TXO endorsed the proposition that a comparison
between the compensatory award and the punitive
award is significant.
In Haslip we concluded that even though a

punitive damages award of “more than 4 times the
amount of compensatory damages,” might be
“close to the line,” it did not “cross the line into
the area of constitutional impropriety.” TXO,
following dicta in Haslip, refined this analysis by
confirming that the proper inquiry is “‘whether
there is a reasonable relationship between the
punitive damage award and the harm likely to
result from the defendant’s conduct as well as the
harm that actually has occurred.’” Thus, in
upholding the $10 million award in TXO, we relied
on the difference between that figure and the
harm to the victim that would have ensued if the
tortious plan had succeeded. That difference
suggested that the relevant ratio was not more
than 10 to 1.
The $2 million in punitive damages awarded to Dr.

Gore by the Alabama Supreme Court is 500 times
the amount of his actual harm as determined by
the jury. . . .
Of course, we have consistently rejected the

notion that the constitutional line is marked by a
simple mathematical formula, even one that
compares actual and potential damages to the
punitive award. . . . When the ratio is a
breathtaking 500 to 1, however, the award must
surely “raise a suspicious judicial eyebrow.” TXO
(O’CONNOR, J., dissenting).
Sanctions for Comparable

Misconduct
Comparing the punitive damages award and the
civil or criminal penalties that could be imposed
for comparable misconduct provides a third
indicium of excessiveness. . . . In this case the $2
million economic sanction imposed on BMW is
substantially greater than the statutory fines
available in Alabama and elsewhere for similar
malfeasance.
The maximum civil penalty authorized by the

Alabama Legislature for a violation of its
Deceptive Trade Practices Act is $2,000; other
States authorize more severe sanctions, with the
maxima ranging from $5,000 to $10,000. . . .
The sanction imposed in this case cannot be
justified on the ground that it was necessary to
deter future misconduct without considering
whether less drastic remedies could be expected
to achieve that goal. . . .
We assume, as the [jury] in this case . . . found,

that the undisclosed damage to the new BMW’s
affected their actual value. Notwithstanding the
evidence adduced by BMW in an effort to prove
that the repainted cars conformed to the same
quality standards as its other cars, we also assume
that it knew, or should have known, that as time
passed the repainted cars would lose their
attractive appearance more rapidly than other
BMW’s. Moreover, we of course accept the
Alabama courts’ view that the state interest in
protecting its citizens from deceptive trade
practices justifies a sanction in addition to the
recovery of compensatory damages. We cannot,
however, accept the conclusion of the Alabama
Supreme Court that BMW’s conduct was
sufficiently egregious to justify a punitive sanction
that is tantamount to a severe criminal penalty. . .
.
. . . [W]e are fully convinced that the grossly

excessive award imposed in this case transcends
the constitutional limit. . . .
The judgment is reversed, and the case is

remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
JUSTICE O’CONNOR and
JUSTICE SOUTER join,
concurring.
The Alabama state courts have assessed the
defendant $2 million in “punitive damages” for
having knowingly failed to tell a BMW automobile
buyer that, at a cost of $600, it had repainted
portions of his new $40,000 car, thereby lowering
its potential resale value by about 10%. The
Court’s opinion, which I join, explains why we
have concluded that this award, in this case, was
“grossly excessive” in relation to legitimate
punitive damages objectives, and hence an
arbitrary deprivation of life, liberty, or property in
violation of the Due Process Clause. . . .
The . . . severe disproportionality between the

award and the legitimate punitive damages
objectives . . . reflects a judgment about a matter
of degree. I recognize that it is often difficult to
determine just when a punitive award exceeds an
amount reasonably related to a State’s legitimate
interests, or when that excess is so great as to
amount to a matter of constitutional concern. Yet
whatever the difficulties of drawing a precise line,
once we examine the award in this case, it is not
difficult to say that this award lies on the line’s far
side. The severe lack of proportionality between
the size of the award and the underlying punitive
damages objectives shows that the award falls into
the category of “gross excessiveness” set forth in
this Court’s prior cases.
. . . I conclude that the award in this unusual case
violates the basic guarantee of nonarbitrary
governmental behavior that the Due Process
Clause provides.

JUSTICE THOMAS joins,
dissenting.
Today we see the latest manifestation of this
Court’s recent and increasingly insistent “concern
about punitive damages that ‘run wild.’” Pacific
Mut. Life Ins. Co. v. Haslip (1991). Since the
Constitution does not make that concern any of
our business, the Court’s activities in this area are
an unjustified incursion into the province of state
governments.
In earlier cases that were the prelude to this

decision, I set forth my view that a state trial
procedure that commits the decision whether to
impose punitive damages, and the amount, to the
discretion of the jury, subject to some judicial
review for “reasonableness,” furnishes a
defendant with all the process that is “due.” I do
not regard the Fourteenth Amendment’s Due
Process Clause as a secret repository of
substantive guarantees against “unfairness”—
neither the unfairness of an excessive civil
compensatory award, nor the unfairness of an
“unreasonable” punitive award. What the
Fourteenth Amendment’s procedural guarantee
assures is an opportunity to contest the
reasonableness of a damages judgment in state
court; but there is no federal guarantee a damages
award actually be reasonable. . . .
The most significant aspects of today’s decision—

the identification of a “substantive due process”
right against a “grossly excessive” award, and the
concomitant assumption of ultimate authority to
decide anew a matter of “reasonableness”
resolved in lower court proceedings—are of
course not new. Haslip and TXO revived the
notion, moribund since its appearance in the first
years of this century, that the measure of civil
punishment poses a question of constitutional
dimension to be answered by this Court. Neither
of those cases, however, nor any of the precedents
upon which they relied, actually took the step of
declaring a punitive award unconstitutional simply
because it was “too big.” At the time of adoption
of the Fourteenth Amendment, it was well
understood that punitive damages represent the
assessment by the jury, as the voice of the
community, of the measure of punishment the
defendant deserved. Today’s decision, though
dressed up as a legal opinion, is really no more
than a disagreement with the community’s sense
of indignation or outrage expressed in the punitive
award of the Alabama jury, as reduced by the
State Supreme Court. It reflects not merely, as the
concurrence candidly acknowledges, “a judgment
about a matter of degree”; but a judgment about
the appropriate degree of indignation or outrage,
which is hardly an analytical determination.
There is no precedential warrant for giving our

judgment priority over the judgment of state
courts and juries on this matter. The only support
for the Court’s position is to be found in a handful
of errant federal cases, bunched within a few
years of one other, which invented the notion that
an unfairly severe civil sanction amounts to a
violation of constitutional liberties. These were the
decisions upon which the TXO plurality relied in
pronouncing that the Due Process Clause
“imposes substantive limits ‘beyond which
penalties may not go.’” Although they are our
precedents, they are themselves too shallowly
rooted to justify the Court’s recent undertaking. . .
.
More importantly, this latter group of cases—

which again are the sole precedential foundation
put forward for the rule of constitutional law
espoused by today’s Court—simply fabricated the
“substantive due process” right at issue. . . .
. . . [T]he Court identifies “[t]hree guideposts” that

lead it to the conclusion that the award in this
case is excessive: degree of reprehensibility, ratio
between punitive award and plaintiff’s actual
harm, and legislative sanctions provided for
comparable misconduct. The legal significance of
these “guideposts” is nowhere explored, but their
necessary effect is to establish federal standards
governing the hitherto exclusively state law of
damages. . . .
Of course it will not be easy for the States to

comply with this new federal law of damages, no
matter how willing they are to do so. In truth, the
“guideposts” mark a road to nowhere; they
provide no real guidance at all. As to “degree of
reprehensibility” of the defendant’s conduct, we
learn that “‘nonviolent crimes are less serious
than crimes marked by violence or the threat of
violence,’” and that “‘trickery and deceit’” are
“more reprehensible than negligence.” As to the
ratio of punitive to compensatory damages, we are
told that a “‘general concer[n] of reasonableness .
. . enter[s] into the constitutional calculus,’”—
though even “a breathtaking 500 to 1” will not
necessarily do anything more than “‘raise a
suspicious judicial eyebrow.’” And as to legislative
sanctions provided for comparable misconduct,
they should be accorded “‘substantial deference.’”
One expects the Court to conclude: “To thine own
self be true.”
These criss-crossing platitudes yield no real

answers in no real cases. . . .
For the foregoing reasons, I respectfully dissent.

THE CHIEF JUSTICE joins,
dissenting.
The Court, I am convinced, unnecessarily and
unwisely ventures into territory traditionally
within the States’ domain, and does so in the face
of reform measures recently adopted or currently
under consideration in legislative arenas. . . .
. . . [T]he Alabama Supreme Court left standing

the jury’s decision that the facts warranted an
award of punitive damages—a determination not
contested in this Court—and the state court
concluded that, considering only acts in Alabama,
$2 million was “a constitutionally reasonable
punitive damages award.”
The Court finds Alabama’s $2 million award not

simply excessive, but grossly so, and therefore
unconstitutional. The decision leads us further
into territory traditionally within the States’
domain, and commits the Court, now and again, to
correct “misapplication of a properly stated rule of
law.” The Court is not well equipped for this
mission. Tellingly, the Court repeats that it brings
to the task no “mathematical formula,” no
“categorical approach,” no “bright line.” It has
only a vague concept of substantive due process, a
“raised eyebrow” test, as its ultimate guide. . . .
For the reasons stated, I dissent from this Court’s

disturbance of the judgment the Alabama
Supreme Court has made.
In BMW v. Gore the justices directly applied

concepts of substantive due process to jury awards
and concluded that grossly excessive awards violate
the essential fairness guarantees of the Fourteenth
Amendment. The Court has continued to apply the
substantive due process reasoning in subsequent
challenges to large punitive damage awards. In
Cooper Industries v. Leatherman Tool Group (2001),
a dispute between two companies over a false
advertising claim, the justices required lower courts
to reconsider a $4.5 million punitive damage award
when only $50,000 was awarded in compensatory
damages. Similarly, in State Farm Mutual
Automobile Insurance Co. v. Campbell (2003),
the Court considered awards of $1 million in
compensatory damages and $145 million in punitive
damages against an insurance company charged
with improperly dealing with a policyholder
following a fatal auto accident. The justices
concluded that the 145-to-1 ratio of punitive to
compensatory damages was grossly excessive and in
conflict with due process guarantees. The Court
once again rejected any firm mathematical criteria
but suggested that award ratios in excess of 10 to 1
begin to lose their presumption of validity.
The other issue involving due process rights and the

fairness of the judicial process concerns judges with
conflicts of interest. At bottom, due process, both
substantive and procedural, requires essential
fairness, and for the judiciary one of the elements of
essential fairness is to have cases decided by
objective judges. An individual whose case is heard
by a biased judge is at risk of being denied liberty or
property without due process of law. Traditionally,
the Supreme Court has taken the position that the
Constitution’s due process clauses are violated if a
judge decides a case in which he or she has a direct
financial interest. Aside from monetary conflicts of
interest and some rare situations that develop in
contempt of court actions, the justices have left the
regulation of judicial bias to the legislatures and
state judicial ethics commissions.
In 2009, however, a new issue regarding judicial

objectivity reached the Court. It concerned the
influence that campaign contributions might have on
judges who serve in the thirty-one states that use
partisan or nonpartisan elections to staff their
courts. Can significant campaign contributions lead
to the selection of judges who are beholden to the
interests of contributors? If so, are particular
litigants in danger of being denied a fair hearing
when they appear before such judges? Are the
resulting conflicts of interest so serious as to
constitute a violation of due process of law?
Caperton v. A. T. Massey Coal Co. (2009) addresses
this question.
Caperton v. A. T. Massey Coal Co. 556 U.S. 868

(2009)
court/556/868.html


Stevens)
4 (Alito, Roberts, Scalia, Thomas)

DISSENTING OPINIONS: Roberts, Scalia
Facts:
In August 2002 a West Virginia jury returned a
verdict that found respondents A. T. Massey Coal
Co. and its affiliates liable for fraudulent
misrepresentation, concealment, and interference
with existing contractual relations. The jury
awarded petitioners Hugh Caperton, Harman
Development Corporation, and several other
companies $50 million in compensatory and
punitive damages. In June 2004 the trial court
denied Massey’s posttrial motions challenging the
verdict and the damage award. Massey served
notice of appeal.
After the verdict, but before the appeal, West

Virginia held its 2004 judicial elections. Knowing
that the Supreme Court of Appeals of West
Virginia would consider the appeal, Don
Blankenship—Massey Coal’s chairman, chief
executive officer, and president—decided to
support the campaign of Brent Benjamin, an
attorney who was challenging Warren R. McGraw,
a sitting justice, for his seat on the West Virginia
court.
In addition to contributing the $1,000 statutory

maximum to Benjamin’s campaign committee,
Blankenship donated almost $2.5 million to a
political organization called And for the Sake of
the Kids, which opposed McGraw and supported
Benjamin. Blankenship’s contributions accounted
for more than two-thirds of the total funds the
organization raised. In addition, Blankenship
spent just over $500,000 on independent
expenditures for direct mailings and letters
soliciting donations and on television and
newspaper advertisements to support Benjamin.
All in all, with his $3 million in contributions and
independent expenditures, Blankenship spent
more than the total amount contributed by all
other Benjamin supporters combined, and three
times the amount spent by Benjamin’s own
committee. Caperton contended that Blankenship
spent $1 million more than the total spent by the
campaign committees of both candidates
combined. Benjamin won the election, receiving
53.3 percent of the vote.
In October 2005, before Massey Coal filed its

petition for appeal in the West Virginia Supreme
Court, Caperton moved to disqualify Justice
Benjamin from hearing the case under the due
process clause and the West Virginia Code of
Judicial Conduct. Caperton cited the conflict of
interest caused by Blankenship’s campaign
involvement. Under procedures used in West
Virginia and elsewhere, a challenged judge alone
decides whether his or her disqualification
(recusal) is required. Benjamin denied the motion
in April 2006, finding no objective evidence that
he was biased against any litigant or that he could
not be fair and impartial.
In November 2007, by a 3–2 vote, the West

Virginia Supreme Court reversed the $50 million
verdict against Massey, with Benjamin voting with
the majority.
Caperton sought a rehearing, and both parties

moved to disqualify justices. Caperton again asked
Benjamin to recuse himself and also challenged
Justice Elliott Maynard. Maynard had been
photographed with Blankenship in the French
Riviera while the case was pending. Maynard
granted Caperton’s recusal motion. Massey
countered by challenging Justice Larry Starcher,
who had publicly criticized Blankenship’s role in
the 2004 election. Starcher also agreed to step
aside, but in doing so he issued a memorandum
urging Benjamin to recuse himself as well.
Starcher also noted that “Blankenship’s bestowal
of his personal wealth, political tactics, and
‘friendship’ have created a cancer in the affairs of
this Court.” Benjamin declined Starcher’s
suggestion and denied Caperton’s recusal motion.
The refusal of West Virginia Supreme Court justice

Brent Benjamin (left) to disqualify himself from
participating in an appeal brought by A. T. Massey
Coal Company resulted in the U.S. Supreme
Court’s 2009 ruling in Caperton v. A. T. Massey
Coal Co. Anticipating an appeal to the state
supreme court from a $50 million judgment
against his company, Don Blankenship, Massey’s
chairman and principal officer (right), made
massive campaign contributions and direct
expenditures in support of Benjamin’s election to
the court.
AP Photo/Bob Bird
AP Photo/Jeff Gentner, File
The state supreme court granted rehearing.

Benjamin, now in the capacity of acting chief
justice, selected two circuit court judges to
replace the two recused justices. Caperton moved
a third time to disqualify Benjamin, but Benjamin
once against refused to step aside.
In April 2008 a divided court again reversed the

jury verdict, and again it was a 3–2 decision with
Justice Benjamin voting with the majority in favor
of Massey Coal. The two dissenters noted
“genuine due process implications arising under
federal law” with respect to Benjamin’s failure to
recuse himself.
Arguments:
For the petitioners, Hugh Caperton et
al.:
Due process requires recusal not only when
there is proof that a judge is actually biased
but also when an objective inquiry establishes
a probability of bias.
The Constitution does not require recusal
whenever a judge receives a campaign
contribution from an attorney or litigant, but
here staggering amounts of money were spent
by a litigant who was preparing a multimillion-
dollar appeal to the state supreme court.
Blankenship’s expenditures were directly
responsible for hundreds of pro-Benjamin and
anti-McGraw campaign advertisements that
unquestionably helped Benjamin—a previously
unknown and underfunded candidate—prevail
in the election. It would be only natural for
Benjamin to feel indebted to Blankenship for
these extraordinary efforts on his behalf.
Due process guarantees that no person will be
deprived of his interests in the absence of a
proceeding in which he may present his case
with assurance that the arbiter is not
predisposed to find against him. Benjamin’s
participation in this appeal deprived the
petitioners of a fair hearing (and ultimately
their property) without due process of law.
For the respondent, A. T. Massey

Coal Co. et al.:
There is no basis in history or precedent for the
notion that a “probability of bias” mandates
disqualification under the due process clause.
Consistent with the common law rule, this
Court’s due process decisions have required
disqualification based on a monetary interest
in the outcome. Outside the context of
contempt, where special rules apply, the Court
has never held that disqualification is
constitutionally required for any other reason.
Even if “probability of bias” were the
constitutional standard, it could not be
satisfied by the supposition that a judge might
feel a debt of gratitude to a campaign
supporter.
U.S. Supreme Court justices hear cases in
which their religious views, prior political
affiliations, or friendships with counsel make it
as reasonable as it is here to infer a
“probability of bias,” yet they are generally
deemed capable of putting aside those
influences. Sitting in those cases would
become constitutionally problematic under the
petitioners’ theory of due process.

Court.
It is axiomatic that “[a] fair trial in a fair tribunal

is a basic requirement of due process.” As the
Court has recognized, however, “most matters
relating to judicial disqualification [do] not rise to
a constitutional level.” The early and leading case
on the subject is Tumey v. Ohio (1927). . . .
The Tumey Court concluded that the Due Process

Clause incorporated the common-law rule that a
judge must recuse himself when he has “a direct,
personal, substantial, pecuniary interest” in a
case. . . . Under this rule, “disqualification for bias
or prejudice was not” [constitutionally required];
those matters were left to statutes and judicial
codes. Personal bias or prejudice “alone would not
be sufficient for imposing a constitutional
requirement under the Due Process Clause.”
As new problems have emerged that were not

discussed at common law, however, the Court has
identified additional instances which, as an
objective matter, require recusal. These are
circumstances “in which experience teaches that
the probability of actual bias on the part of the
judge . . . is too high to be constitutionally
tolerable.” To place the present case in proper
context, two instances where the Court has
required recusal merit further discussion.
The first involved the emergence of local tribunals

where a judge had a financial interest in the
outcome of a case, although the interest was less
than what would have been considered personal
or direct at common law.
This was the problem addressed in Tumey. There,

the mayor of a village had the authority to sit as a
judge (with no jury) to try those accused of
violating a state law prohibiting the possession of
alcoholic beverages. Inherent in this structure
were two potential conflicts. First, the mayor
received a salary supplement for performing
judicial duties, and the funds for that
compensation derived from the fines assessed in a
case. . . . The mayor-judge thus received a salary
supplement only if he convicted the defendant.
Second, sums from the criminal fines were
deposited to the village’s general treasury fund for
village improvements and repairs.
The Court held that the Due Process Clause

required disqualification “both because of [the
mayor-judge’s] direct pecuniary interest in the
outcome, and because of his official motive to
convict and to graduate the fine to help the
financial needs of the village.” . . .
[In later cases] the Court stressed that it was “not
required to decide whether in fact [the justice]
was influenced.” The proper constitutional inquiry
is “whether sitting on the case . . . ‘would offer a
possible temptation to the average . . . judge to . .
. lead him not to hold the balance nice, clear and
true.’” . . .
The second instance requiring recusal that was

not discussed at common law emerged in the
criminal contempt context, where a judge had no
pecuniary interest in the case but was challenged
because of a conflict arising from his participation
in an earlier proceeding. . . .
In that . . . proceeding, and as provided by state

law, a judge examined witnesses to determine
whether criminal charges should be brought. The
judge called the two petitioners before him. One
petitioner answered questions, but the judge
found him untruthful and charged him with
perjury. The second declined to answer on the
ground that he did not have counsel with him, as
state law seemed to permit. The judge charged
him with contempt. The judge proceeded to try
and convict both petitioners.
This Court set aside the convictions on grounds

that the judge had a conflict of interest at the trial
stage because of his earlier participation followed
by his decision to charge them. The Due Process
Clause required disqualification. [The Court]
noted that the disqualifying criteria “cannot be
defined with precision. Circumstances and
relationships must be considered.” . . .
Based on the principles described in these cases
we turn to the issue before us. This problem arises
in the context of judicial elections, a framework
not presented in the precedents we have reviewed
and discussed. . . .
[Due to] the difficulties of inquiring into actual

bias . . . the Due Process Clause has been
implemented by objective standards that do not
require proof of actual bias. In defining these
standards the Court has asked whether, “under a
realistic appraisal of psychological tendencies and
human weakness,” the interest “poses such a risk
of actual bias or prejudgment that the practice
must be forbidden if the guarantee of due process
is to be adequately implemented.”
We turn to the influence at issue in this case. Not

every campaign contribution by a litigant or
attorney creates a probability of bias that requires
a judge’s recusal, but this is an exceptional case.
We conclude that there is a serious risk of actual
bias—based on objective and reasonable
perceptions—when a person with a personal stake
in a particular case had a significant and
disproportionate influence in placing the judge on
the case by raising funds or directing the judge’s
election campaign when the case was pending or
imminent. The inquiry centers on the
contribution’s relative size in comparison to the
total amount of money contributed to the
campaign, the total amount spent in the election,
and the apparent effect such contribution had on
the outcome of the election.
Applying this principle, we conclude that
Blankenship’s campaign efforts had a significant
and disproportionate influence in placing Justice
Benjamin on the case. Blankenship contributed
some $3 million to unseat the incumbent and
replace him with Benjamin. His contributions
eclipsed the total amount spent by all other
Benjamin supporters and exceeded by 300% the
amount spent by Benjamin’s campaign committee.
...
Whether Blankenship’s campaign contributions

were a necessary and sufficient cause of
Benjamin’s victory is not the proper inquiry. Much
like determining whether a judge is actually
biased, proving what ultimately drives the
electorate to choose a particular candidate is a
difficult endeavor, not likely to lend itself to a
certain conclusion. Due process requires an
objective inquiry into whether the contributor’s
influence on the election under all the
circumstances “would offer a possible temptation
to the average . . . judge to . . . lead him not to
hold the balance nice, clear and true.” . . . [T]he
risk that Blankenship’s influence engendered
actual bias is sufficiently substantial that it “must
be forbidden if the guarantee of due process is to
be adequately implemented.”
The temporal relationship between the campaign

contributions, the justice’s election, and the
pendency of the case is also critical. It was
reasonably foreseeable, when the campaign
contributions were made, that the pending case
would be before the newly elected justice. . . . So
it became at once apparent that, absent recusal,
Justice Benjamin would review a judgment that
cost his biggest donor’s company $50 million.
Although there is no allegation of a quid pro quo
agreement, the fact remains that Blankenship’s
extraordinary contributions were made at a time
when he had a vested stake in the outcome. Just
as no man is allowed to be a judge in his own
cause, similar fears of bias can arise when—
without the consent of the other parties—a man
chooses the judge in his own cause. And applying
this principle to the judicial election process, there
was here a serious, objective risk of actual bias
that required Justice Benjamin’s recusal. . . .
Our decision today addresses an extraordinary

situation where the Constitution requires recusal.
Massey and its amici predict that various adverse
consequences will follow from recognizing a
constitutional violation here—ranging from a flood
of recusal motions to unnecessary interference
with judicial elections. We disagree. The facts now
before us are extreme by any measure. The
parties point to no other instance involving
judicial campaign contributions that presents a
potential for bias comparable to the circumstances
in this case. . . .
“The Due Process Clause demarks only the outer

boundaries of judicial disqualifications. Congress
and the states, of course, remain free to impose
more rigorous standards for judicial
disqualifications than those we find mandated
here today.” . . .
The judgment of the Supreme Court of Appeals of

West Virginia is reversed, and the case is
remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.

whom JUSTICE SCALIA,
ALITO join, dissenting.
I, of course, share the majority’s sincere concerns
about the need to maintain a fair, independent,
and impartial judiciary—and one that appears to
be such. But I fear that the Court’s decision will
undermine rather than promote these values. . . .
Today . . . the Court enlists the Due Process

Clause to overturn a judge’s failure to recuse
because of a “probability of bias.” Unlike the
established grounds for disqualification, a
“probability of bias” cannot be defined in any
limited way. The Court’s new “rule” provides no
guidance to judges and litigants about when
recusal will be constitutionally required. This will
inevitably lead to an increase in allegations that
judges are biased, however groundless those
charges may be. The end result will do far more to
erode public confidence in judicial impartiality
than an isolated failure to recuse in a particular
case. . . .
. . . [T]he standard the majority articulates

—“probability of bias”—fails to provide clear,
workable guidance for future cases. At the most
basic level, it is unclear whether the new
probability of bias standard is somehow limited to
financial support in judicial elections, or applies to
judicial recusal questions more generally. But
there are other fundamental questions as well.
With little help from the majority, courts will now
have to determine:
1. How much money is too much money? What

level of contribution or expenditure gives rise
to a “probability of bias”?
2. How do we determine whether a given
expenditure is “disproportionate”?
Disproportionate to what?
3. Are independent, non-coordinated
expenditures treated the same as direct
contributions to a candidate’s campaign? What
about contributions to independent outside
groups supporting a candidate?
4. Does it matter whether the litigant has
contributed to other candidates or made large
expenditures in connection with other
elections?
5. Does the amount at issue in the case matter?
What if this case were an employment dispute
with only $10,000 at stake? What if the
plaintiffs only sought non-monetary relief such
as an injunction or declaratory judgment?
6. Does the analysis change depending on
whether the judge whose disqualification is
sought sits on a trial court, appeals court, or
state supreme court? . . . [Chief Justice Roberts
went on to list thirty-four additional questions
that he believed the judiciary ultimately would
have to address in subsequent cases.]
Today, the majority . . . departs from a clear,
longstanding constitutional rule to accommodate
an “extreme” case involving “grossly
disproportionate” amounts of money. I believe we
will come to regret this decision, when courts are
forced to deal with a wide variety of Caperton
motions, each claiming the title of “most extreme”
or “most disproportionate.” . . .
. . . I believe that opening the door to recusal

claims under the Due Process Clause, for an
amorphous “probability of bias,” will itself bring
our judicial system into undeserved disrepute, and
diminish the confidence of the American people in
the fairness and integrity of their courts. I hope I
am wrong.

A Talmudic maxim instructs with respect to the
Scripture: “Turn it over, and turn it over, for all is
therein.” Divinely inspired text may contain
answers to all earthly questions, but the Due
Process Clause most assuredly does not. The
Court today continues its quixotic quest to right
all wrongs and repair all imperfections through
the Constitution. Alas, the quest cannot succeed—
which is why some wrongs and imperfections have
been called nonjusticiable. In the best of all
possible worlds, should judges sometimes recuse
even where the clear commands of our prior due
process law do not require it? Undoubtedly. The
relevant question, however, is whether we do
more good than harm by seeking to correct this
imperfection through expansion of our
constitutional mandate in a manner ungoverned
by any discernable rule. The answer is obvious.
Don Blankenship’s fortunes did not improve

following Massey Coal’s defeat at the hands of the
Supreme Court. Plagued by regulatory conflicts and
mine safety issues, Blankenship eventually lost
control of Massey Coal, his company subsequently
was acquired by one of its competitors, and he went
to prison for conspiracy to violate mine safety
regulations (see Box 10-2).
What of the broader effects of Caperton? It remains

to be seen whether Justice Anthony Kennedy was
correct in asserting it was an extreme case of
enormous campaign contributions that may not be
repeated, or whether Chief Justice John Roberts was
more clairvoyant with his prediction that unclear
guidelines established in Caperton will lead to an
avalanche of appeals filed by losing parties claiming
judicial bias. What is certain is that judicial election
campaigns, which traditionally have been low-
visibility affairs, have become increasingly costly and
contentious. This provides a potential opportunity
for wealthy campaign donors to have an expanding
influence in determining who staffs our courts.
Even Chief Justice Roberts, who dissented in

Caperton, seems to take the point. In the 2015 case
of Williams-Yulee v. Florida Bar , the Court
considered the constitutionality of a code of judicial
conduct adopted by the Florida Supreme Court,
which prohibits judges and judicial candidates from
personally soliciting funds for their campaigns. After
the Florida Bar disciplined her for violating the new
code, Lanell Williams-Yulee challenged it as
intruding on her First Amendment right to free
speech.
The Court ruled in favor of the Florida Bar, with

Chief Justice Roberts writing for the majority.
Interestingly, the chief pegged much of his opinion
on ideas compatible with Caperton. He wrote that
Florida had a compelling interest in restricting
Williams-Yulee’s speech: preserving public
confidence in the integrity of the judiciary. Equally
interesting, Justice Kennedy, Caperton’s author,
dissented: “Whether an election is the best way to
choose a judge is itself the subject of fair debate. But
once the people of a State choose to have elections,
the First Amendment protects the candidate’s right
to speak and the public’s ensuing right to open and
robust debate.”
Personal Privacy and Dignity

At the start of this section, we noted that substantive
due process has played a role in the Court’s
interpretation of privacy and personal dignity
rights.25 And, in fact, this may be the area where
substantive due process is most potent today.
25 For a full review of the development of the
constitutional right to privacy, see Chapter 9 in
Epstein and Walker, Constitutional Law for a
Changing America: Rights, Liberties, and Justice.
Box 10-2 Aftermath . . . Don Blankenship and

Massey Coal
THE JUNE 2009 Supreme Court decision against

A. T. Massey Coal was only the start of troubles for
parent company Massey Energy and its leader,
Don Blankenship. The company was the largest
coal mining enterprise in the Appalachian region,
with coal extraction activities in West Virginia,
Kentucky, and Virginia. Blankenship became
chairman and CEO of the company in 2000. By
2009 his salary had reached $17.8 million, with a
deferred-compensation package of $27.2 million,
but during his tenure Massey was constantly the
subject of complaints concerning environmental
damages and safety problems. The U.S.
Department of Labor’s Mine Safety and Health
Administration frequently cited Massey for safety
violations and for the company’s failure to address
them. Grist, an online environmental advocacy
magazine, labeled Blankenship the “scariest
polluter in the U.S.”
On April 5, 2010, a massive explosion occurred in

the Upper Big Branch Coal Mine in West Virginia,
an operation owned by a Massey Energy
subsidiary. Twenty-nine miners were killed,
making it the deadliest mining disaster in the
United States in forty years. A subsequent
independent investigation found fault with Massey
for failure to meet basic safety standards.
According to the report, the inadequate state of
the company’s ventilation system allowed
explosive gases to accumulate inside the mine,
ultimately causing the accident and resulting
fatalities. The report added, “A company that was
a towering presence in the Appalachian coal fields
operated its mines in a profoundly reckless
manner, and 29 coal miners paid with their lives
for the corporate risk taking.”
In response to the incident, the Mine Safety and

Health Administration issued Massey 369 citations
and orders, including 21 for flagrant violations,
and assessed fines totaling $10,825,368. The
agency cited Massey’s corporate culture as the
root cause of the tragedy.
As a result of this disaster, groups of shareholders

began demanding that Massey’s CEO be removed,
with one investment group blaming the accident
on Blankenship’s “confrontational approach to
regulatory compliance.” In the face of this
pressure Blankenship took retirement at the end
of 2010. Just six months later Massey Energy was
sold to one of its competitors, Alpha Natural
Resources.
In 2015 Blankenship was convicted of

misdemeanor charges related to conspiracy to
violate federal mine safety laws and was
sentenced to one year in prison. Throughout the
investigation and trial process, he maintained his
innocence and claimed the Upper Big Branch
disaster was caused by the misbehavior of federal
mine safety authorities.
In 2018 Blankenship entered the race for the U.S.

Senate. He portrayed himself to voters as being
“Trumpier Than Trump.” He finished third in a six-
person primary election for the Republican
nomination, taking about 19 percent of the vote.
Shortly thereafter, however, he accepted the
nomination of the West Virginia Constitution Party
for the same Senate seat. State authorities,
however, refused to approve his candidacy
because West Virginia’s “sore loser” law prohibits
an individual who is unsuccessful in a major-party
primary election from pursuing the same office in
the general election under the auspices of a
different political party.
Brent Benjamin, the little-known attorney whose

2004 election campaign was the recipient of
Blankenship’s unprecedented financial
contributions, served a full twelve-year term on
the West Virginia Supreme Court of Appeals. He
ran for reelection in 2016 but placed fourth,
capturing only 12 percent of the vote.
Events surrounding the Caperton case became an

inspiration for John Grisham’s 2008 best-selling
legal thriller The Appeal.
Sources: Howard Berkes, “Massey CEO’s Pay

Soared as Mine Concerns Grew,” National Public
Radio, April 10, 2010; Steve James, “Massey Faces
Shareholder Anger over Mine Disaster,” Reuters,
April 13, 2010; David Roberts, “Massey Energy
CEO Is a Really Bad Dude,” Grist, October 25,
2006, http://grist.org/article/don-blankenship-
seventh-scariest-person-in-america; Mine Safety
and Health Administration news release,
December 6, 2011; USA Today, May 9, 2018, June
6, 2018, July 24, 2018; The Intelligencer and
Wheeling News-Register, July 27, 2018.
The Court’s initial foray into this area came during

the Lochner era—for example, in Meyer v.
Nebraska (1923), the justices noted that the word
liberty in the due process clause covered the right to
marry and raise children, among other liberties. But
today we tend to mark its onset with the case of
Griswold v. Connecticut (1965). In Griswold the
Court was asked to strike down a state law that
banned the distribution of contraceptives on the
ground that the statute violated the right to privacy.
It was clear to the majority that government
interference in such an intimate area was an
unacceptable intrusion into a person’s private life,
but was the law unconstitutional? After all, no
provision of the Constitution explicitly guarantees a
right of privacy. The Court struck down the
Connecticut law and declared that the Constitution
did indeed protect privacy rights, but the justices did
not agree about which section of the Constitution
required that conclusion. Some argued that privacy
rights are embedded in the due process clause of the
Fourteenth Amendment. Justice John Marshall
Harlan (II) asserted this substantive due process
approach to privacy in his concurring opinion:
In my view, the proper constitutional inquiry in
this case is whether this Connecticut statute
infringes the Due Process Clause of the
Fourteenth Amendment because the enactment
violates basic values “implicit in the concept of
ordered liberty.” . . . The Due Process Clause of
the Fourteenth Amendment stands, in my
opinion, on its own bottom.
Not all of the justices agreed with this approach.

Was finding a right to privacy inside the due process
clause any different from the long-since-rejected
notion of finding a liberty of contract in that same
provision? Justice Hugo Black argued that the Court
had gone too far in creating a constitutional right
out of vague Fourteenth Amendment language. He
wrote in dissent, “I like my privacy as well as the
next one, but I am nevertheless compelled to admit
that government has a right to invade it unless
prohibited by some specific constitutional provision.”
In subsequent decisions, the justices agreed that
privacy rights are found in the due process clauses
of the Fifth and Fourteenth Amendments.
Unreasonable or arbitrary intrusions by the
government into an individual’s private life
constitute a denial of liberty without due process of
law.
In the years following Griswold, the Court used the

due process approach to privacy to expand a number
of liberties. Most notable was the 1973 decision in
Roe v. Wade, which established the right to
abortion. Speaking for the Court, Justice Harry
Blackmun invoked the due process clause when he
wrote,
[The] right of privacy, whether it be founded in

the Fourteenth Amendment’s concept of
personal liberty and restrictions upon state
action, as we feel it is, or [another clause], . . . is
broad enough to encompass a woman’s decision
whether or not to terminate her pregnancy.
The Court has reached similar conclusions in other

areas of privacy and personal dignity. In Lawrence
v. Texas (2003), the Court concluded that laws
criminalizing private homosexual acts by consenting
adults are barred by the right to privacy. More
recently, the justices held, in Obergefell v. Hodges
(2015), that because the liberties protected under
the due process clause “extend to certain personal
choices central to individual dignity and autonomy,”
states must license a marriage between two people
of the same sex. Obergefell had the effect of
invalidating all existing state bans on same-sex
marriage.
The privacy rights rulings such as Obergefell and

decisions such as BMW of North America and
Caperton are a far cry from the probusiness
application of the due process clauses in Lochner
and Adkins. No one expects a return to the days
when primacy was given to the liberty of contract.
Yet the underlying philosophical debate over the use
of substantive due process continues.
As we have seen, the Court on occasion has relied on

the due process clauses to protect rights not
explicitly mentioned elsewhere in the Constitution.
Opposition to this practice has been advanced by
those who believe that fashioning new rights in this
manner is inappropriate. Legal scholar John Hart Ely
accused Justice Blackmun of “Lochnering” in Roe v.
Wade. And recall Justice Antonin Scalia’s declaration
in the BMW case: “I do not regard the Fourteenth
Amendment’s Due Process Clause as a secret
repository of substantive guarantees against
‘unfairness.’” Consider also his criticism of the
Caperton ruling that charged the Court with using
the due process clause in “its quixotic quest to right
all wrongs and repair all imperfections.” In this same
vein, dissenters have criticized these decisions for
imprecise guidelines that allow the justices to
impose their own views of what constitutes a denial
of due process. Such criticisms closely resemble
those of an earlier era that charged the Court with
setting itself up as a “superlegislature” to decide on
its own what laws are so unreasonable as to violate
due process.
In response, those who support the expansion of the

Constitution’s protection of individual rights have
defended the use of the substantive due process
approach. As Justice Kennedy explained in Lawrence
v. Texas,
Had those who drew and ratified the Due

Process Clauses of the Fifth Amendment or the
Fourteenth Amendment known the components
of liberty in its manifold possibilities, they might
have been more specific. They did not presume
to have this insight. They knew times can blind
us to certain truths and later generations can
see that laws once thought necessary and proper
in fact serve only to oppress. As the Constitution
endures, persons in every generation can invoke
its principles in their own search for greater
freedom.
Either way, it is true that the doctrine—so exalted at

the beginning of the twentieth century and so
discredited following the New Deal—has had a
significant effect on the course of the law. What
could have simply faded out of existence with
Miller’s Slaughterhouse opinion became the source
of one of the most interesting episodes in
constitutional law.
Annotated Readings
A number of good works discuss and critique
substantive due process and related phenomena.
These include Randy E. Barnett, Restoring the Lost
Constitution: The Presumption of Liberty (Princeton,
NJ: Princeton University Press, 2003); Raoul Berger,
Government by Judiciary (Cambridge, MA: Harvard
University Press, 1977); Michael Conant, The
Constitution and Economic Regulation (New
Brunswick, NJ: Transaction, 2008); Markus Dirk
Dubber, The Police Power: Patriarchy and the
Foundations of American Government (New York:
Columbia University Press, 2005); Edward Keynes,
Liberty, Property, and Privacy: Toward a
Jurisprudence of Substantive Due Process
(University Park: Pennsylvania State University
Press, 1996); John V. Orth, Due Process of Law
(Lawrence: University Press of Kansas, 2003); and
Frank R. Strong, Substantive Due Process of Law: A
Dichotomy of Sense and Nonsense (Durham, NC:
Carolina Academic Press, 1986).
Other books approach substantive due process from

a more historical perspective: Richard C. Cortner,
The Iron Horse and the Constitution: The Railroads
and the Transformation of the Fourteenth
Amendment (Westport, CT: Greenwood Press, 1993);
Herbert Hovenkamp, Enterprise and American Law,
1836–1937 (Cambridge, MA: Harvard University
Press, 1991); Morton Keller, Affairs of State
Michael J. Phillips, The Lochner Court, Myth and
Reality: Substantive Due Process from the 1890s to
the 1930s (Westport, CT: Praeger, 2001); Timothy
Sandefur, The Right to Earn a Living: Economic
Freedom and the Law (Washington, DC: Cato
Institute, 2010); E. Thomas Sullivan and Toni M.
Massaro, The Arc of Due Process in American
Constitutional Law (New York: Oxford University
Press, 2013); William F. Swindler, Court and
Constitution in the Twentieth Century (Indianapolis,
IN: Bobbs-Merrill, 1970); Clement E. Vose,
Constitutional Change (Lexington, MA: Lexington
Books, 1972); and Christopher Wolfe, The Rise of
Modern Judicial Review (New York: Basic Books,
1986).
Still other books provide in-depth analyses of

specific cases that have been fundamental in the
development and decline of substantive due process.
Good examples are Howard Gillman, The
Constitution Besieged: The Rise and Demise of
Lochner Era Police Powers Jurisprudence (Durham,
NC: Duke University Press, 1993); N. E. H. Hull, Roe
v. Wade: The Abortion Controversy in American
History (Lawrence: University Press of Kansas,
2001); John W. Johnson, Griswold v. Connecticut:
Birth Control and the Constitutional Right of Privacy
(Lawrence: University Press of Kansas, 2005); Paul
Kens, Judicial Power and Reform Politics: The
Anatomy of Lochner v. New York (Lawrence:
University Press of Kansas, 1990); and David
Richards, The Sodomy Cases: Bowers v. Hardwick
and Lawrence v. Texas (Lawrence: University Press
of Kansas, 2009).
Chapter Eleven The Takings
Clause
ONE DAY a certified letter arrives at your house

informing you that the government has decided to
construct a highway, and your property lies directly
in its path. The letter further states that in return for
your property the government will pay you
$250,000, an amount it considers “fair market value”
for your home. Finally, the letter instructs you to
vacate the house within six months.
Does the government have the right to seize your

property in this fashion? What if this house has been
in your family for generations and you do not want to
sell? What if this is your dream home, just completed
after years of saving and sacrificing? And what if you
consider the government’s offer to be less than the
property is worth? Can you challenge the amount
offered? What about your rights to private property?
Don’t they mean anything?
The general answer to these questions is that the

government indeed has the right to seize private
property for a public purpose, such as a new road or
the construction of a government building. This
authority is referred to as the “power of eminent
domain.” When federal, state, or local governments
embark on new construction projects for roads,
schools, military bases, or government offices, they
usually must acquire private property. Sometimes
the projects need only a parcel or two, but at other
times the government requires large-scale property
condemnation. Although property owners may feel
mistreated when the government seizes their land,
such government power is generally regarded as
necessary. However, property owners have an
important protection. The Constitution contains a
provision, known as the “takings clause,” that checks
the authority of the government against the
individual’s right to property.
Protecting Private Property

from Government Seizure
We normally associate the Bill of Rights with
important civil liberties, such as the freedoms of
speech, press, and religion. But when the members
of the First Congress proposed a list of those rights
considered important enough to merit constitutional
protection, they included in the Fifth Amendment a
private property guarantee—the takings clause—that
states, “nor shall private property be taken for
public use, without just compensation.”
That the framers would have protected private

property in this way is not surprising: the men who
fashioned the U.S. Constitution firmly believed in
private property rights. They also supported a
national government that would be stronger than it
was under the Articles of Confederation. The takings
clause acknowledges that government projects
sometimes require the seizure of private property.
Without the power of eminent domain, individuals
could block government programs, such as the
interstate highway system, by refusing to sell
property to the government or by demanding
unreasonable compensation, holding government
projects for ransom. But James Madison, the primary
author of the Bill of Rights, rejected the notion that
government should have the absolute power to
confiscate private property.1 The takings clause was
intended to moderate that authority by ensuring that
property owners would not be unduly disadvantaged
when the government seized their land. It
guarantees that property owners will be fairly
compensated for their loss. As Justice Hugo Black
explained, the takings clause “was designed to bar
Government from forcing some people to bear public
burdens which, in all fairness and justice, should be
borne by the public as a whole.”2
1 James W. Ely Jr., The Guardian of Every Other

Right: A Constitutional History of Property Rights
(New York: Oxford University Press, 1992), 55.
2 Armstrong v. United States (1960).
Provisions similar to the takings clause were already

in effect in several states at the time the Bill of
Rights was drafted. Vermont’s Constitution of 1777
and the Massachusetts Constitution of 1780 were
among the first to protect owners from absolute
government seizures. Other states did not elevate
the right to constitutional status but passed laws
requiring just compensation for property seizures.
States commonly imposed such protections when
chartering companies to build roads, dams, and
other projects. In 1785 Virginia required
compensation to be paid for unimproved land seized
for the building of roadways. South Carolina in the
1780s incorporated several companies to build
canals, granting them the power of eminent domain
on the condition that they compensate owners for
their property losses. Similar provisions were
incorporated into Virginia’s charter creating the
Dismal Swamp Canal Company in 1787.3 With the
states routinely adopting such provisions, it could be
expected that the framers would see the need to
restrain federal authority from seizing property in
much the same way. In fact, the takings clause
proposal was uncontroversial, spurring little debate
in Congress or during the ratification process.
3 For a discussion of these early provisions, see Ely,

The Guardian of Every Other Right, chap. 2.
Because many states already protected private

property against state government seizures, the
takings clause was intended to apply only to federal
government confiscations. The Supreme Court
endorsed this interpretation in Barron v. Baltimore
(1833).4 The dispute arose when the city of
Baltimore initiated a series of street improvements
that also necessitated the alteration of several small
streams. As a result, large amounts of sand and dirt
were swept downstream into Baltimore Harbor,
causing serious problems for the owners of wharves
operating in the harbor. John Barron and John Craig
were particularly damaged. Their wharf had been
very profitable because it was located in deep water
and was capable of servicing large ships. The
accumulation of silt and waste near their wharf was
so great that the water became too shallow for large
vessels, and Barron and Craig lost considerable
business. They demanded compensation from the
city for their loss. When the city refused, they sued,
asking for $20,000 in damages. The local court
awarded them $4,500, but a state appellate court
reversed, and Barron and Craig appealed to the U.S.
Supreme Court.
4 For a discussion of this case, see Epstein and

Walker, Constitutional Law for a Changing America:
Rights, Liberties, and Justice.
They claimed that the city’s construction caused

their loss of profitability, which constituted a
“taking” under the meaning of the Fifth Amendment
and entitled them to “just compensation.” The
justices, however, were not concerned with
questions of whether a taking had occurred or what
constituted just compensation. Instead, the Court
focused on a more fundamental issue: Did the Fifth
Amendment apply to state actions at all? The Court
concluded that it did not. In the words of Chief
Justice John Marshall,
We are of opinion that the provision in the fifth

amendment to the constitution, declaring that
private property shall not be taken for public use
without just compensation, is intended solely as
a limitation on the exercise of power by the
government of the United States, and is not
applicable to the legislation of the states.5
5 The implications of this decision went far beyond

the takings clause issue. By ruling as it did, the
Supreme Court held that the states did not have to
abide by any of the provisions of the Bill of Rights,
and that those sections of the Constitution limited
federal government actions only. The states were
governed only by their own bills of rights. Over time,
the Court incrementally changed its position, but it
took more than 130 years for it to conclude that the
states were bound by almost all the provisions of the
Bill of Rights. For a discussion of this history, see
ibid., chap. 3.
For the next half century this interpretation

remained the law of the land. The takings clause
applied only to the federal government. If states did
not impose similar restraints on themselves, they
were free to exercise the power of eminent domain
without providing adequate compensation to
landowners whose property had been seized.
In the late 1800s, prompted by the ratification of the

Fourteenth Amendment, the Court began to
reconsider this position. The Fourteenth Amendment
contains the due process clause, that says, “nor shall
any state deprive any person of life, liberty, or
property, without due process of law.” Lawyers
began arguing that when states confiscated private
property without giving the owners adequate
compensation, they were depriving the owners of
property without due process of law, a violation of
the Fourteenth Amendment. If adopted by the Court,
this interpretation would make the takings clause
binding on the states and nullify the immediate
impact of Barron v. Baltimore.
The test case for this proposition was Chicago,

Burlington & Quincy Railroad Company v.
Chicago (1897). The controversy began in 1880
when Chicago’s city council passed an ordinance to
open and widen certain city streets. The project
required the condemnation of various parcels of
land. Individuals owned some of this property, but
other sections were part of a right-of-way belonging
to the Chicago, Burlington & Quincy Railroad. A
condemnation trial was held in the circuit court for
Cook County. The court agreed to condemn the land,
and the jury set the amounts of compensation to be
paid to the landowners. The individuals whose
property was confiscated received an average of
about $5,000 for their losses, but the jury awarded
the railroad only $1 for similar land seizures. The
railroad company’s demand for a new trial was
rejected, the Illinois Supreme Court offered no relief,
and the company appealed to the U.S. Supreme
Court.
The justices, by a 7–1 vote, ruled in favor of the

railroad. The opinion of the Court, written by Justice
John Marshall Harlan (I), held that,
The conclusion of this Court on the question is,

that since the adoption of the 14th Amendment
compensation for private property taken for
public uses constitutes an essential element in
“due process of law,” and that without such
compensation the appropriation of private
property to public uses, no matter under what
form of procedure it is taken, would violate the
provisions of the Federal Constitution.
The Court held that the takings clause of the U.S.

Constitution was binding not only on the federal
government, but also on state and local
governments. It affirmed the government’s power of
eminent domain but required the payment of
adequate compensation whenever that power was
exercised.6 With this ruling, the takings clause
became the first provision of the Bill of Rights to be
made binding on the states.
6 See David A. Schultz, Property, Power, and
American Democracy (New Brunswick, NJ:
Transaction, 1992).
The authority of government to take private property

when needed to carry out legitimate projects is now
well established. The most common issue that flows
from government takings cases is the question of
what constitutes “just compensation.” In the normal
course of events, the government attempts to buy
the necessary land from the owners. If negotiations
fail, the government may declare the power of
eminent domain and take the property, giving the
owners what it thinks is a fair price. Usually fair
market value is the appropriate standard. It is not
uncommon, however, for the owners to argue that
the government’s offer is inadequate. In such
situations the owners may challenge the amount in
court. Questions of just compensation normally are
settled through negotiation or trial court action; they
rarely involve issues beyond the specific land under
dispute.7 Although legal battles may be fought over
whether the offered compensation is just, no one
doubts the power of the government to seize the
property.
7 Occasionally, compensation controversies involve

critical issues and large amounts of money. In United
States v. Sioux Nation of Indians (1980), the
Supreme Court settled a long-standing dispute over
the abrogation of the Fort Laramie Treaty of 1868.
The treaty had established the right of the Sioux
nation to the Black Hills, but an 1877 act of
Congress essentially took back those lands. The
Court ruled that the treaty abrogation was governed
by the takings clause and that the Sioux were
entitled to the value of the land in 1877 plus 5
percent annual interest since that year, amounting to
a total claim of some $100 million.
Of greater importance to understanding the meaning

of the Fifth Amendment takings clause are these two
questions: What is a taking, and what constitutes a
public use? Both questions have required
authoritative answers by the Supreme Court.
What Is a Taking?
In many cases it is relatively easy to determine that
a taking has occurred. If the federal government
decides to build a new post office and must acquire a
piece of privately owned property on which to build,
a taking is necessary if a voluntary sale is not
negotiated. Similarly, a taking occurs when, in
designing a water control project, the government
finds it necessary to dam certain streams and cause
privately owned land to become permanently
flooded. In these situations, the government takes
private land, which is then used for a public purpose.
There is no question that the individual has been
deprived of ownership rights over the property and
is entitled to compensation.
Courts are much more likely to conclude that a
taking has occurred if the government has in some
fashion physically invaded the owner’s property. The
physical invasion does not have to be complete, as
when a government-constructed dam permanently
floods a piece of property, nor does it have to result
in the owner’s total loss of the right to use the
property. In Loretto v. Teleprompter Manhattan
CATV Corp. (1982), the Court held that a New York
law requiring landlords to allow a cable television
company to install cable facilities on their property
constituted a taking. The law required landlords to
accept the direct physical attachment of plates,
boxes, wires, cables, bolts, and screws on their
properties. As a permanent physical occupation of
the owners’ property, this installation amounted to a
taking that constitutionally required just
compensation.
Although a physical invasion meets the traditional

definition of a taking, is such an intrusion a
necessary requirement? What happens when a
government activity so severely curtails the possible
uses of a piece of property that its value almost
disappears? United States v. Causby (1946), a case
involving a North Carolina couple whose modest
chicken farm was ruined by the U.S. military,
answered these questions. Did a taking occur even
though the Causbys retained title to their property?
The majority held that it did. But pay attention to the
dissent by Justice Black, which is interesting on two
counts. First, it reflects Black’s generally
sympathetic attitude toward federal government
programs, and second, it demonstrates the
importance he placed on applying the words as
written. Here he attempts to apply the word taking
as he believes the framers intended it to be used.
United States v. Causby 328 U.S. 256 (1946)
court/328/256.html
Vote: 5 (Douglas, Frankfurter, Murphy, Reed,

Rutledge)
2 (Black, Burton)

DISSENTING OPINION: Black
NOT PARTICIPATING: Jackson
Facts:
The Causbys owned 2.8 acres outside Greensboro,
North Carolina. On this land were their house and
the various outbuildings they needed for their
chicken business. In 1942, in the midst of World
War II, the federal government leased a local
airfield for use by army and navy aircraft.
Bombers, fighters, and transport planes regularly
flew in and out of this facility at all hours of the
day and night. Planes often flew in close formation
and in considerable numbers. The end of the
airport runway was only 2,220 feet from the
Causbys’ property. The authorized flight patterns
allowed planes to fly at an altitude of 83 feet over
the Causbys’ land, just 67 feet over their house,
and within 18 feet of the highest tree on their
property.
This activity caused the couple considerable

discomfort as well as economic loss. The noise was
described as startling, and the lights from
approaching and departing planes lit up the night.
The Causbys could not enjoy the day and found it
difficult to sleep at night. No aircraft accidents
had occurred on their property, but there had
been several near the airport, which made the
Causbys fearful and nervous. In addition, the
productivity of their chickens decreased. About
150 of them died when they flew into the walls of
their coops out of fear and panic when the planes
flew particularly close. The property could no
longer be used as a commercial chicken farm.
The Causbys filed suit in the federal court of

claims arguing that the government had taken
their land without just compensation in violation
of the takings clause. The court agreed and
ordered the government to pay them $2,000 for
their loss. The federal government appealed to the
Supreme Court, claiming that there was no taking
because there was no physical violation of the
landowners’ property.
Arguments:
There is no taking without a physical invasion.
Using airspace above the Causby land does not
constitute a taking of property.
A landowner does not own the airspace above
his land that he has not subjected to the
erection of a structure.
The Air Commerce Act of 1926 and the Civil
Aeronautics Act of 1938 give the federal
government sovereign authority over the
nation’s airspace. These laws also
acknowledge that using navigable airspace is
an exercise of the right to travel.
Any damages suffered by the Causbys are
negligible.
For the respondents, Thomas

Lee Causby and Tinie Causby:
The landowner has rights to the airspace above
his property. The government’s use of that
airspace constitutes a taking.
The taking of the airspace above the
respondent’s land damaged the property and
the productive use of that property.
The trespass by the government at all hours of
the day and night destroyed the Causbys’
chicken business, for which they deserve full
compensation.

the Court.
It is ancient doctrine that at common law
ownership of the land extended to the periphery of
the universe. . . . But that doctrine has no place in
the modern world. The air is a public highway, as
Congress has declared. Were that not true, every
transcontinental flight would subject the operator
to countless trespass suits. Common sense revolts
at the idea. To recognize such private claims to
the airspace would clog these highways, seriously
interfere with their control and development in
the public interest, and transfer into private
ownership that to which only the public has a just
claim.
But that general principle does not control the

present case. For the United States conceded on
oral argument that if the flights over respondents’
property rendered it uninhabitable, there would
be a taking compensable under the Fifth
Amendment. It is the owner’s loss, not the taker’s
gain, which is the measure of the value of the
property taken. Market value fairly determined is
the normal measure of the recovery. And that
value may reflect the use to which the land could
readily be converted, as well as the existing use.
If, by reason of the frequency and altitude of the
flights, respondents could not use this land for any
purpose, their loss would be complete. It would be
as complete as if the United States had entered
upon the surface of the land and taken exclusive
possession of it.
. . . The owner’s right to possess and exploit the

land—that is to say, his beneficial ownership of it—
would be destroyed. It would not be a case of
incidental damages arising from a legalized
nuisance. . . .
There is no material difference between the

supposed case and the present one, except that
here enjoyment and use of the land are not
completely destroyed. But that does not seem to
us to be controlling. The path of glide for airplanes
might reduce a valuable factory site to grazing
land, an orchard to a vegetable patch, a
residential section to a wheat field. Some value
would remain. But the use of the airspace
immediately above the land would limit the utility
of the land and cause a diminution in its value. . . .
We have said that the airspace is a public highway.

Yet it is obvious that if the landowner is to have
full enjoyment of the land, he must have exclusive
control of the immediate reaches of the
enveloping atmosphere. Otherwise buildings could
not be erected, trees could not be planted, and
even fences could not be run. The principle is
recognized when the law gives a remedy in case
overhanging structures are erected on adjoining
land. The landowner owns at least as much of the
space above the ground as he can occupy or use in
connection with the land. The fact that he does not
occupy it in a physical sense—by the erection of
buildings and the like—is not material. As we have
said, the flight of airplanes, which skim the
surface but do not touch it, is as much an
appropriation of the use of the land as a more
conventional entry upon it. We would not doubt
that, if the United States erected an elevated
railway over respondents’ land at the precise
altitude where its planes now fly, there would be a
partial taking, even though none of the supports of
the structure rested on the land. The reason is
that there would be an intrusion so immediate and
direct as to subtract from the owner’s full
enjoyment of the property and to limit his
exploitation of it. While the owner does not in any
physical manner occupy that stratum of airspace
or make use of it in the conventional sense, he
does use it in somewhat the same sense that space
left between buildings for the purpose of light and
air is used. The superadjacent airspace at this low
altitude is so close to the land that continuous
invasions of it affect the use of the surface of the
land itself. We think that the landowner, as an
incident to his ownership, has a claim to it and
that invasions of it are in the same category as
invasions of the surface. . . .
The airplane is part of the modern environment of

life, and the inconveniences which it causes are
normally not compensable under the Fifth
Amendment. The airspace, apart from the
immediate reaches above the land, is part of the
public domain. We need not determine at this time
what those precise limits are. Flights over private
land are not a taking, unless they are so low and
so frequent as to be a direct and immediate
interference with the enjoyment and use of the
land. We need not speculate on that phase of the
present case. For the findings of the Court of
Claims plainly establish that there was a
diminution in value of the property and that the
frequent, low-level flights were the direct and
immediate cause. We agree with the Court of
Claims that a servitude has been imposed upon
the land. . . .
. . . [T]he cause is remanded to the Court of
Claims so that it may make the necessary findings
in conformity with this opinion.
Reversed.
MR. JUSTICE BLACK,

dissenting.
The Fifth Amendment provides that “private
property” shall not “be taken for public use
without just compensation.” The Court holds today
that the Government has “taken” respondents’
property by repeatedly flying Army bombers
directly above respondents’ land at a height of
eighty-three feet where the light and noise from
these planes caused respondents to lose sleep and
their chickens to be killed. Since the effect of the
Court’s decision is to limit, by the imposition of
relatively absolute constitutional barriers, possible
future adjustments through legislation and
regulation which might become necessary with
the growth of air transportation, and since in my
view the Constitution does not contain such
barriers, I dissent. . . .
The Court’s opinion seems to indicate that the

mere flying of planes through the column of air
directly above respondents’ land does not
constitute a “taking.” Consequently, it appears to
be noise and glare, to the extent and under the
circumstances shown here, which make the
Government a seizer of private property. . . . The
concept of taking property as used in the
Constitution has heretofore never been given so
sweeping a meaning. The Court’s opinion presents
no case where a man who makes noise or shines
light onto his neighbor’s property has been
ejected from that property for wrongfully taking
possession of it. Nor would anyone take seriously
a claim that noisy automobiles passing on a
highway are taking wrongful possession of the
homes located thereon, or that a city elevated
train which greatly interferes with the sleep of
those who live next to it wrongfully takes their
property. . . . I am not willing, nor do I think the
Constitution and the decisions authorize me, to
extend that phrase so as to guarantee an absolute
constitutional right to relief not subject to
legislative change, which is based on averments
that at best show mere torts committed by
government agents while flying over land. The
future adjustment of the rights and remedies of
property owners, which might be found necessary
because of the flight of planes at safe altitudes,
should, especially in view of the imminent
expansion of air navigation, be left where I think
the Constitution left it, with Congress. . . .
No greater confusion could be brought about in

the coming age of air transportation than that
which would result were courts by constitutional
interpretation to hamper Congress in its efforts to
keep the air free. Old concepts of private
ownership of land should not be introduced into
the field of air regulation. I have no doubt that
Congress will, if not handicapped by judicial
interpretations of the Constitution, preserve the
freedom of the air, and at the same time, satisfy
the just claims of aggrieved persons. The noise of
newer, larger, and more powerful planes may grow
louder and louder and disturb people more and
more. But the solution of the problems
precipitated by these technological advances and
new ways of living cannot come about through the
application of rigid constitutional restraints
formulated and enforced by the courts. What
adjustments may have to be made, only the future
can reveal. It seems certain, however, that courts
do not possess the techniques or the personnel to
consider and act upon the complex combinations
of factors entering into the problems. . . . Today’s
opinion is, I fear, an opening wedge for an
unwarranted judicial interference with the power
of Congress to develop solutions for new and vital
national problems. In my opinion this case should
be reversed on the ground that there has been no
“taking” in the constitutional sense.
MR. JUSTICE BURTON joins in this dissent.
How far can the definition of a taking be legitimately

extended? After all, every time the government
passes a law regulating the use of property, the
rights of owners are diminished. Does regulation
constitute a taking? Justice Oliver Wendell Holmes
addressed this question in Pennsylvania Coal Co.
v. Mahon (1922). For Holmes, the answer depended
on the extent of the regulation: “The general rule at
least is, that while property may be regulated to a
certain extent, if regulation goes too far it will be
recognized as a taking.” Holmes feared that, if given
too much discretion, the government might regulate
“until the last private property disappears.”8
8 See Ely, The Guardian of Every Other Right, chap.
6.
Generally, government regulation that only

incidentally infringes on the owner’s use of property
is not considered a taking, nor is regulation that
outlaws noxious or dangerous use of property.
Obvious examples are zoning laws and other
regulatory ordinances that make certain uses
unlawful.9 Owners may be distressed that they can
no longer use their property in particular ways, but
the Supreme Court has held that such statutes do
not constitute Fifth Amendment takings that deserve
compensation. The justices ruled that takings did not
occur when a state ordered property owners to cut
down standing cedar trees because a disease they
carried threatened nearby apple orchards, when a
local government passed an ordinance removing an
individual’s right to use his land as a brickyard seen
as inconsistent with the surrounding neighborhood,
or when for safety reasons a city prohibited a person
from mining sand and gravel on his land.10
9 See Agins v. City of Tiburon (1980).
10 Miller v. Schoene (1928), Hadacheck v. Los

Angeles (1915), and Goldblatt v. Hempstead (1962),
respectively.
In each of these and numerous similar cases the

government’s action significantly reduced the way
the land could be used and decreased its commercial
value, yet the Court held that a taking had not
occurred. Instead, the government policy had been
formulated in response to social, economic, or
environmental problems that could be addressed
through the use of the government’s police powers.
Penn Central Transportation Company v. City of New

York (1978) addressed the questions of how far such
regulation may go and for what reasons. These
issues are important. If the government imposes
regulations that seriously curtail the economic use of
an individual’s property, has a taking occurred?
Although Justice William J. Brennan Jr.’s opinion
acknowledges that this area of the law has proved to
be one of “considerable difficulty,” it presents a good
review of the principles the Court has developed to
answer that question.
Penn Central Transportation Company v. City of

New York 438 U.S. 104 (1978)
court/438/104.html

Vote: 6 (Blackmun, Brennan, Marshall, Powell,

Stewart, White)
3 (Burger, Rehnquist, Stevens)

DISSENTING OPINION: Rehnquist
Facts:
New York City passed the Landmarks Preservation
Law in 1965 as part of an effort to protect historic
buildings and districts. Each of the fifty states and
more than five hundred cities had similar statutes.
In New York the Landmarks Preservation
Commission administered the law. The
commission’s task was to identify buildings and
areas that held special historic or aesthetic value.
These sites were then discussed in hearings to
determine whether landmark status should be
conferred. If a building or area was designated
historic, certain restrictions applied. The owners
of landmark buildings were required to keep the
exteriors in good repair and not alter the buildings
without securing prior approval from the
commission. Owners of such buildings received no
direct compensation, but they were accorded
enhanced development rights for other properties.
This case involved the application of the

preservation law to the Grand Central Terminal,
owned by Penn Central Transportation Company.
The station, which opened in 1913, is widely
regarded as an example of ingenious engineering
in response to problems presented by modern
urban rail stations. It is also cited as a magnificent
example of French beaux arts style. The terminal
received historic landmark status in 1967,
although Penn Central initially opposed the action.
In 1968, to increase revenues, Penn Central
entered into an agreement with UGP Properties to
build a multistory office building above the
terminal. UGP and Penn Central presented two
separate plans to the Landmarks Preservation
Commission for its approval. One plan proposed a
change in the existing facade of the building and
construction of a fifty-three-story office tower
above it. The other envisioned a fifty-five-story
office building cantilevered above the existing
facade and resting on the roof of the terminal. The
commission rejected both proposals.
In response, Penn Central and UGP filed suit,

claiming that the application of the Landmarks
Preservation Law to the terminal constituted a
taking of their property without just
compensation. The New York courts denied their
claims, with the state’s highest court rejecting the
notion that the property had been “taken” under
the meaning of the Fifth Amendment.
Arguments:
For the appellants, Penn Central
Transportation Company et al.:
Penn Central has a valuable private property

interest in the air space above Grand Central
Terminal that is fully protected by the
Constitution.
The landmarks law operates as a taking of
Penn Central’s property right to develop the
airspace above the terminal. As a consequence
the value of the terminal property is
significantly diminished.
The city’s program to preserve buildings of
historic or aesthetic importance is not exempt
from the constitutional requirement of just
compensation.
The law singles out landowners of certain
properties, causing them to bear the burden of
the city’s program. Granting these targeted
owners enhanced development rights for other
properties falls short of just compensation.
For the appellee, New York City:

The landmarks law did not deprive Penn
Central of its property without due process of
law. The line between regulation and
confiscation has not been breached.
Landmarks preservation is necessary to the
general welfare of the people, particularly in
New York City, where a densely populated area
is affected by the quality of the physical
environment.
Penn Central has not been singled out for
discriminatory treatment.
Penn Central has failed to show that the
property, as restricted, is not economically
viable.

the Court.
Before considering appellants’ specific
contentions, it will be useful to review the factors
that have shaped the jurisprudence of the Fifth
Amendment injunction “nor shall private property
be taken for public use, without just
compensation.” The question of what constitutes a
“taking” for purposes of the Fifth Amendment has
proved to be a problem of considerable difficulty. .
. . [T]his Court, quite simply, has been unable to
develop any “set formula” for determining when
“justice and fairness” require that economic
injuries caused by public action be compensated
by the government, rather than remain
disproportionately concentrated on a few persons.
Indeed, we have frequently observed that whether
a particular restriction will be rendered invalid by
the government’s failure to pay for any losses
proximately caused by it depends largely “upon
the particular circumstances [in that] case.”
Artist’s conception of a fifty-five-story office

building to be “floated” over the waiting room of
New York’s Grand Central Terminal, which had
been designated a historic landmark. Plans for this
building, and several others, were rejected by the
Landmarks Preservation Commission, and the
Supreme Court ruled that such a rejection did not
constitute a taking.
Bettmann Archive/Getty Images
In engaging in these essentially ad hoc, factual

inquiries, the Court’s decisions have identified
several factors that have particular significance.
The economic impact of the regulation on the
claimant and, particularly, the extent to which the
regulation has interfered with distinct investment-
backed expectations are, of course, relevant
considerations. So, too, is the character of the
government action. A “taking” may more readily
be found when the interference with property can
be characterized as a physical invasion by the
government than when interference arises from
some public program adjusting the benefits and
burdens of economic life to promote the common
good.
“Government hardly could go on if to some extent

values incident to property could not be
diminished without paying for every such change
in the general law,” Pennsylvania Coal Co. v.
Mahon (1922), and this Court has accordingly
recognized, in a wide variety of contexts, that
government may execute laws or programs that
adversely affect recognized economic values.
Exercises of the taxing power are one obvious
example. A second are the decisions in which this
Court has dismissed “taking” challenges on the
ground that, while the challenged government
action caused economic harm, it did not interfere
with interests that were sufficiently bound up with
the reasonable expectations of the claimant to
constitute “property” for Fifth Amendment
purposes.
More importantly for the present case, in

instances in which a state tribunal reasonably
concluded that “the health, safety, morals, or
general welfare” would be promoted by
prohibiting particular contemplated uses of land,
this Court has upheld land-use regulations that
destroyed or adversely affected recognized real
property interests. Zoning laws are, of course, the
classic example. . . .
Zoning laws generally do not affect existing uses

of real property, but “taking” challenges have also
been held to be without merit in a wide variety of
situations when the challenged governmental
actions prohibited a beneficial use to which
individual parcels had previously been devoted
and thus caused substantial individualized harm. .
..
Pennsylvania Coal Co. v. Mahon (1922) is the

leading case for the proposition that a state
statute that substantially furthers important
public policies may so frustrate distinct
investment-backed expectations as to amount to a
“taking.” There the claimant had sold the surface
rights to particular parcels of property, but
expressly reserved the right to remove the coal
thereunder. A Pennsylvania statute, enacted after
the transactions, forbade any mining of coal that
caused the subsidence of any house, unless the
house was the property of the owner of the
underlying coal and was more than 150 feet from
the improved property of another. Because the
statute made it commercially impracticable to
mine the coal, and thus had nearly the same effect
as the complete destruction of rights claimant had
reserved from the owners of the surface land, the
Court held that the statute was invalid as effecting
a “taking” without just compensation. . . .
In contending that the New York City law has
“taken” their property in violation of the Fifth and
Fourteenth Amendments, appellants make a series
of arguments, which, while tailored to the facts of
this case, essentially urge that any substantial
restriction imposed pursuant to a landmark law
must be accompanied by just compensation if it is
to be constitutional. Before considering these, we
emphasize what is not in dispute. Because this
Court has recognized in a number of settings, that
States and cities may enact land-use restrictions
or controls to enhance the quality of life by
preserving the character and desirable aesthetic
features of a city, appellants do not contest that
New York City’s objective of preserving structures
and areas with special historic, architectural, or
cultural significance is an entirely permissible
governmental goal. They also do not dispute that
the restrictions imposed on its parcel are
appropriate means of securing the purposes of the
New York City law. Finally, appellants do not
challenge any of the specific factual premises of
the decision below. They accept for present
purposes both that the parcel of land occupied by
Grand Central Terminal must, in its present state,
be regarded as capable of earning a reasonable
return, and that the transferable development
rights afforded the appellants by virtue of the
Terminal’s designation as a landmark are valuable,
even if not as valuable as the rights to construct
above the Terminal. In appellants’ view none of
these factors derogate from their claim that New
York City’s law has effected a “taking.”
They first observe that the airspace above the

Terminal is a valuable property interest, citing
United States v. Causby. They urge that the
Landmarks Law has deprived them of any gainful
use of their “air rights” above the Terminal and
that, irrespective of the value of the remainder of
their parcel, the city has “taken” their right to this
superadjacent airspace, thus entitling them to
“just compensation” measured by the fair market
value of these air rights.
Apart from our own disagreement with appellants’

characterization of the effect of the New York City
law, the submission that appellants may establish
a “taking” simply by showing that they have been
denied the ability to exploit a property interest
that they heretofore had believed was available for
development is quite simply untenable. . . .
“Taking” jurisprudence does not divide a single
parcel into discrete segments and attempt to
determine whether rights in a particular segment
have been entirely abrogated. In deciding whether
a particular governmental action has effected a
taking, this Court focuses rather both on the
character of the action and on the nature and
extent of the interference with rights in the parcel
as a whole—here, the city tax block designated as
the “landmark site.”
Secondly, appellants, focusing on the character

and impact of the New York City law, argue that it
effects a “taking” because its operation has
significantly diminished the value of the Terminal
site. Appellants concede that the decisions
sustaining other land-use regulations, which, like
the New York City law, are reasonably related to
the promotion of the general welfare, uniformly
reject the proposition that diminution in property
value, standing alone, can establish a “taking.” . . .
[B]ut appellants argue that New York City’s
regulation of individual landmarks is
fundamentally different from zoning or from
historic-district legislation because the controls
imposed by New York City’s law apply only to
individuals who own selected properties.
Stated baldly, appellants’ position appears to be

that the only means of ensuring that selected
owners are not singled out to endure financial
hardship for no reason is to hold that any
restriction imposed on individual landmarks
pursuant to the New York City scheme is a
“taking” requiring the payment of “just
compensation.” Agreement with this argument
would, of course, invalidate not just New York
City’s law, but all comparable landmark legislation
in the Nation. We find no merit in it. . . .
Equally without merit is the related argument that

the decision to designate a structure as a
landmark “is inevitably arbitrary or at least
subjective, because it is basically a matter of
taste,” thus unavoidably singling out individual
landowners for disparate and unfair treatment.
The argument has a particularly hollow ring in this
case. . . . [A] landmark owner has a right to
judicial review of any Commission decision, and,
quite simply, there is no basis whatsoever for a
conclusion that courts will have any greater
difficulty identifying arbitrary or discriminatory
action in the context of landmark regulation than
in the context of classic zoning or indeed in any
other context. . . .
In any event, appellants’ repeated suggestions
that they are solely burdened and unbenefited is
factually inaccurate. This contention overlooks the
fact that the New York City law applies to vast
numbers of structures in the city in addition to the
Terminal—all the structures contained in the 31
historic districts and over 400 individual
landmarks, many of which are close to the
Terminal. Unless we are to reject the judgment of
the New York City Council that the preservation of
landmarks benefits all New York citizens and all
structures, both economically and by improving
the quality of life in the city as a whole—which we
are unwilling to do—we cannot conclude that the
owners of the Terminal have in no sense been
benefited by the Landmarks Law. . . .
. . . [T]he New York City law does not interfere in

any way with the present uses of the Terminal. Its
designation as a landmark not only permits but
contemplates that appellants may continue to use
the property precisely as it has been used for the
past 65 years: as a railroad terminal containing
office space and concessions. So the law does not
interfere with what must be regarded as Penn
Central’s primary expectation concerning the use
of the parcel. More importantly, on this record, we
must regard the New York City law as permitting
Penn Central not only to profit from the Terminal
but also to obtain a “reasonable” return on its
investment. . . .
On this record, we conclude that the application of

New York City’s Landmarks Law has not effected a
“taking” of appellants’ property. The restrictions
imposed are substantially related to the promotion
of the general welfare and not only permit
reasonable beneficial use of the landmark site but
also afford appellants opportunities further to
enhance not only the Terminal site proper but also
other properties.
Affirmed.
MR. JUSTICE REHNQUIST, with

whom THE CHIEF JUSTICE AND
MR. JUSTICE STEVENS join,
dissenting.
Of the over one million buildings and structures in
the city of New York, appellees have singled out
400 for designation as official landmarks. The
owner of a building might initially be pleased that
his property has been chosen by a distinguished
committee of architects, historians, and city
planners for such a singular distinction. But he
may well discover, as appellant Penn Central
Transportation Co. did here, that the landmark
designation imposes upon him a substantial cost,
with little or no offsetting benefit except for the
honor of the designation. The question in this case
is whether the cost associated with the city of
New York’s desire to preserve a limited number of
“landmarks” within its borders must be borne by
all of its taxpayers or whether it can instead be
imposed entirely on the owners of the individual
properties. . . .
The Fifth Amendment provides in part: “nor shall

private property be taken for public use, without
just compensation.” In a very literal sense, the
actions of appellees violated this constitutional
prohibition. Before the city of New York declared
Grand Central Terminal to be a landmark, Penn
Central could have used its “air rights” over the
Terminal to build a multistory office building, at an
apparent value of several million dollars per year.
Today, the Terminal cannot be modified in any
form, including the erection of additional stories,
without the permission of the Landmark
Preservation Commission, a permission which
appellants, despite good-faith attempts, have so
far been unable to obtain. . . .
As Mr. Justice Holmes pointed out in Pennsylvania

Coal Co. v. Mahon, “the question at bottom” in an
eminent domain case “is upon whom the loss of
the changes desired should fall.” The benefits that
appellees believe will flow from preservation of
the Grand Central Terminal will accrue to all the
citizens of New York City. There is no reason to
believe that appellants will enjoy a substantially
greater share of these benefits. If the cost of
preserving Grand Central Terminal were spread
evenly across the entire population of the city of
New York, the burden per person would be in
cents per year—a minor cost appellees would
surely concede for the benefit accrued. Instead,
however, appellees would impose the entire cost
of several million dollars per year on Penn Central.
But it is precisely this sort of discrimination that
the Fifth Amendment prohibits. . . .
Over 50 years ago, Mr. Justice Holmes, speaking

for the Court, warned that the courts were “in
danger of forgetting that a strong public desire to
improve the public condition is not enough to
warrant achieving the desire by a shorter cut than
the constitutional way of paying for the change.”
The Court’s opinion in this case demonstrates that
the danger thus foreseen has not abated. The city
of New York is in a precarious financial state, and
some may believe that the costs of landmark
preservation will be more easily borne by
corporations such as Penn Central than the
overburdened individual taxpayers of New York.
But these concerns do not allow us to ignore past
precedents construing the Eminent Domain
Clause to the end that the desire to improve the
public condition is, indeed, achieved by a shorter
cut than the constitutional way of paying for the
change.
Penn Central represents the high-water mark for the

Court allowing state and local governments to
impose regulation without triggering a takings
clause violation. In the 1980s the Court began to
reconsider its position on takings clause complaints.
This shift had two causes. First, governments began
exercising their land regulation powers more
aggressively. Second, personnel changes created a
Court that was more sympathetic to private property
rights than before. The pivotal changes occurred in
1986, when William H. Rehnquist was elevated to
the chief justiceship and Antonin Scalia joined the
Court. Rehnquist had previously been on the losing
side of important takings clause cases. His
dissenting opinion in Penn Central clearly indicated
that his views were at odds with the way the
majority was handling takings clause appeals, an
area of the law in which he had a special interest.
The signs of change began to appear in 1987, when

the Court handed down three takings clause
decisions. The first, decided in March, was
Keystone Bituminous Coal Association v.
DeBenedictis. The majority upheld a state
regulation of coal mining operations against takings
clause and contract clause attacks, but Chief Justice
Rehnquist’s dissenting opinion attracted the support
of three other justices, indicating that members of
the Court who supported private property rights
interests were poised to make a major assault on
existing takings clause interpretations. The second
case, First English Evangelical Lutheran Church
of Glendale v. County of Los Angeles, was
decided in June. Although this case involved a
relatively minor point regarding the recovery of
damages in takings clause cases, the Court voted 6–
3 to support the property owners who claimed
compensation, and Rehnquist wrote the majority
opinion. This decision was a clear signal that the
Rehnquist Court was open to new takings clause
appeals. Justice John Paul Stevens acknowledged
this fact in a dissenting opinion, in which he said,
“One thing is certain. The Court’s decision today will
generate a great deal of litigation.”
The third 1987 case, Nollan v. California Coastal

Commission, was the clearest indication that the
Rehnquist Court was about to resurrect property
rights under the takings clause. The decision also
illustrates how states were using their authority to
deny building permits in lieu of directly exercising
the power of eminent domain. By doing so they
hoped to accomplish their land-use policy goals
without compensating landowners for their losses. In
return for allowing James and Marilyn Nollan to
build a house on their beachfront property, the state
of California required the family to dedicate a
portion of the property to public access. Was this
requirement a taking? The five justices who were
considered the Court’s conservative bloc thought it
was. The four liberals said it was not. What do you
think? Was the Nollans’ property partially taken from
them by the public access requirement, and was
California therefore bound by the Fifth Amendment
to pay just compensation?
Nollan v. California Coastal Commission 483 U.S.

825 (1987)
court/483/825.html

Vote: 5 (O’Connor, Powell, Rehnquist, Scalia,

White)
4 (Blackmun, Brennan, Marshall, Stevens)

DISSENTING OPINIONS: Blackmun,
Brennan, Stevens
Facts:
James and Marilyn Nollan owned a beachfront lot
in Ventura County, California. One-quarter mile
north of their property was Faria County Park, a
public beach and recreation area. Another public
beach, known as the Cove, was located 1,800 feet
south of the Nollan lot. A concrete seawall, eight
feet high, separated the beach part of the Nollan
property from the rest of the land. Originally, a
small bungalow that was rented to summer
vacationers stood on the property. The house,
however, had fallen into serious disrepair and
could no longer be rented. The Nollans decided to
replace the bungalow with a new structure, and to
do so they needed a building permit from the
California Coastal Commission.
The commission granted the Nollans permission to

build their new house, but with one significant
condition: a strip of their property was to be set
aside for use by the public to move between the
two public beaches. The Nollans protested. On
rehearing, the commission reaffirmed the
requirement, finding that the easement was
necessary because the new house would reduce
the view of the beach from the street and prevent
the public “psychologically . . . from realizing a
stretch of coastline exists nearby that they have
every right to visit.” The Nollans then filed suit
claiming that the public access condition
constituted a taking under the Fifth Amendment.
The California Supreme Court ruled in favor of the
commission, and the Nollans took their case to the
U.S. Supreme Court.
Arguments:
For the appellants, James P. Nollan and
Marilyn H. Nollan:
The state’s requirement of a public right-of-way

will allow repeated physical invasions of the
appellants’ property by members of the public.
Such a permanent physical invasion of the
property is clearly a taking for which the
Nollans are constitutionally entitled to just
compensation.
The Nollans have received no special benefit
nor created any special public burden to justify
imposing on them the full cost of expanding
public beach access.
For the appellee, the California

Coastal Commission:
In exercising its police powers, the state has
properly taken into account the cumulative
impacts of proposed developments.
The regulation in question serves an important
public purpose of allowing public access to the
publicly owned coastal tidelands.
The line between regulation and confiscation
has not been breached.
The Nollans have not been deprived of all
economic use or value of their property.
Court.
Had California simply required the Nollans to

make an easement across their beachfront
available to the public on a permanent basis in
order to increase public access to the beach,
rather than conditioning their permit to rebuild
their house on their agreeing to do so, we have no
doubt there would have been a taking. To say that
the appropriation of a public easement across a
landowner’s premises does not constitute the
taking of a property interest but rather . . . “a
mere restriction on its use” is to use words in a
manner that deprives them of all their ordinary
meaning. Indeed, one of the principal uses of the
eminent domain power is to assure that the
government be able to require conveyance of just
such interests, so long as it pays for them. Perhaps
because the point is so obvious, we have never
been confronted with a controversy that required
us to rule upon it, but our cases’ analysis of the
effect of other governmental action leads to the
same conclusion. We have repeatedly held that, as
to property reserved by its owner for private use,
“the right to exclude [others is] ‘one of the most
essential sticks in the bundle of rights that are
commonly characterized as property.’” In Loretto
[v. Teleprompter Manhattan CATV, 1982] we
observed that where governmental action results
in “[a] permanent physical occupation” of the
property, by the government or others, “our cases
uniformly have found a taking to the extent of the
occupation, without regard to whether the action
achieves an important public benefit or has only
minimal economic impact on the owner.” We think
a “permanent physical occupation” has occurred,
for purposes of that rule, where individuals are
given a permanent and continuous right to pass to
and fro, so that the real property may
continuously be traversed, even though no
particular individual is permitted to station
himself permanently upon the premises. . . .
Given, then, that requiring uncompensated

conveyance of the easement outright would violate
the Fourteenth Amendment, the question becomes
whether requiring it to be conveyed as a condition
for issuing a land-use permit alters the outcome.
We have long recognized that land-use regulation
does not effect a taking if it “substantially
advance[s] legitimate state interests” and does not
“den[y] an owner economically viable use of his
land.” . . . Our cases have not elaborated on the
standards for determining what constitutes a
“legitimate state interest” or what type of
connection between the regulation and the state
interest satisfies the requirement that the former
“substantially advance” the latter. They have made
clear, however, that a broad range of
governmental purposes and regulations satisfies
these requirements. The Commission argues that
among these permissible purposes are protecting
the public’s ability to see the beach, assisting the
public in overcoming the “psychological barrier”
to using the beach created by a developed
shorefront, and preventing congestion on the
public beaches. We assume, without deciding, that
this is so—in which case the Commission
unquestionably would be able to deny the Nollans
their permit outright if their new house (alone, or
by reason of the cumulative impact produced in
conjunction with other construction) would
substantially impede these purposes, unless the
denial would interfere so drastically with the
Nollans’ use of their property as to constitute a
taking.
. . . Thus, if the Commission attached to the permit

some condition that would have protected the
public’s ability to see the beach notwithstanding
construction of the new house—for example, a
height limitation, a width restriction or a ban on
fences—so long as the Commission could have
exercised its police power (as we have assumed it
could) to forbid construction of the house
altogether, imposition of the condition would also
be constitutional. Moreover (and here we come
closer to the facts of the present case), the
condition would be constitutional even if it
consisted of the requirement that the Nollans
provide a viewing spot on their property for
passersby with whose sighting of the ocean their
new house would interfere. Although such a
requirement, constituting a permanent grant of
continuous access to the property, would have to
be considered a taking if it were not attached to a
development permit, the Commission’s assumed
power to forbid construction of the house in order
to protect the public’s view of the beach must
surely include the power to condition construction
upon some concession by the owner, even a
concession of property rights, that serves the
same end. If a prohibition designed to accomplish
that purpose would be a legitimate exercise of the
police power rather than a taking, it would be
strange to conclude that providing the owner an
alternative to that prohibition which accomplishes
the same purpose is not.
The evident constitutional propriety disappears,

however, if the condition substituted for the
prohibition utterly fails to further the end
advanced as the justification for the prohibition. . .
. The purpose then becomes, quite simply, the
obtaining of an easement to serve some valid
governmental purpose, but without payment of
compensation. Whatever may be the outer limits
of “legitimate state interests” in the takings and
land-use context, this is not one of them. In short,
unless the permit condition serves the same
governmental purpose as the development ban,
the building restriction is not a valid regulation of
land use but “an out-and-out plan of extortion.” . .
.
It is quite impossible to understand how a

requirement that people already on the public
beaches be able to walk across the Nollans’
property reduces any obstacles to viewing the
beach created by the new house. It is also
impossible to understand how it lowers any
“psychological barrier” to using the public
beaches, or how it helps to remedy any additional
congestion on them caused by construction of the
Nollans’ new house. We therefore find that the
Commission’s imposition of the permit condition
cannot be treated as an exercise of its land-use
power for any of these purposes. Our conclusion
on this point is consistent with the approach taken
by every other court that has considered the
question, with the exception of the California state
courts. . . .
California is free to advance its “comprehensive

program,” if it wishes, by using its power of
eminent domain for this “public purpose,” but if it
wants an easement across the Nollans’ property, it
must pay for it.
Reversed.
JUSTICE BRENNAN, with whom

JUSTICE MARSHALL joins,
dissenting.
The Court’s conclusion that the permit condition
imposed on appellants is unreasonable cannot
withstand analysis. First, the Court demands a
degree of exactitude that is inconsistent with our
standard for reviewing the rationality of a State’s
exercise of its police power for the welfare of its
citizens. Second, even if the nature of the public-
access condition imposed must be identical to the
precise burden on access created by appellants,
this requirement is plainly satisfied.
There can be no dispute that the police power of

the States encompasses the authority to impose
conditions on private development. It is also by
now commonplace that this Court’s view of the
rationality of a State’s exercise of its police power
demands only that the State “could rationally have
decided” that the measure adopted might achieve
the State’s objective. In this case, California has
employed its police power in order to condition
development upon preservation of public access to
the ocean and tidelands. The Coastal Commission,
if it had so chosen, could have denied the Nollans’
request for a development permit, since the
property would have remained economically viable
without the requested new development. Instead,
the State sought to accommodate the Nollans’
desire for new development, on the condition that
the development not diminish the overall amount
of public access to the coastline. Appellants’
proposed development would reduce public access
by restricting visual access to the beach, by
contributing to an increased need for community
facilities, and by moving private development
closer to public beach property. The Commission
sought to offset this diminution in access, and
thereby preserve the overall balance of access, by
requesting a deed restriction that would ensure
“lateral” access: the right of the public to pass and
repass along the dry sand parallel to the shoreline
in order to reach the tidelands and the ocean. In
the expert opinion of the Coastal Commission,
development conditioned on such a restriction
would fairly attend to both public and private
interests.
The Court finds fault with this measure because it

regards the condition as insufficiently tailored to
address the precise type of reduction in access
produced by the new development. The Nollans’
development blocks visual access, the Court tells
us, while the Commission seeks to preserve lateral
access along the coastline. Thus, it concludes, the
State acted irrationally. Such a narrow conception
of rationality, however, has long since been
discredited as a judicial arrogation of legislative
authority. . . .
Imposition of the permit condition in this case

represents the State’s reasonable exercise of its
police power. The Coastal Commission has drawn
on its expertise to preserve the balance between
private development and public access, by
requiring that any project that intensifies
development on the increasingly crowded
California coast must be offset by gains in public
access. Under the normal standard for review of
the police power, this provision is eminently
reasonable. . . .
State agencies . . . require considerable flexibility

in responding to private desires for development
in a way that guarantees the preservation of
public access to the coast. They should be
encouraged to regulate development in the
context of the overall balance of competing uses of
the shoreline. The Court today does precisely the
opposite, overruling an eminently reasonable
exercise of an expert state agency’s judgment,
substituting its own narrow view of how this
balance should be struck. Its reasoning is hardly
suited to the complex reality of natural resource
protection in the 20th century. I can only hope
that today’s decision is an aberration, and that the
broader vision ultimately prevails.
I dissent.
Justice Brennan’s hope that Nollan would be an

aberration was not fulfilled. In the years following
this opinion, the personnel on the Court continued to
change. He and Justice Marshall, firm supporters of
public interests over private property rights, retired.
Joining the Court were two supporters of private
property, Justices Anthony Kennedy and Clarence
Thomas. These changes strengthened the chief
justice’s efforts to breathe new life into the
Constitution’s private property protections.
There is no invariable rule to assist courts in

determining whether a challenged government
regulation has gone too far and become a taking.
Rather, in line with the Penn Central decision, courts
engage in an ad hoc evaluation of the government’s
actions, weighing all relevant facts and
circumstances, including the nature of the
government’s actions, the economic impact of the
regulation on the claimant, and the extent to which
the regulation has interfered with distinct
investment-backed expectations.
However, there are two conditions under which

courts find no need to engage in such a searching
analysis. If either of these two conditions exists,
there is no question that the government action
constitutes a taking that requires compensation. The
first condition is when the government’s action
completely deprives the owner of all economically
beneficial use of the property. The second occurs
when the government permanently occupies the
property. Either situation categorically requires
compensation. These are often referred to as “per
se” takings.
The Court’s decision in Lucas v. South Carolina

Coastal Council (1992) involves a litigant who
claimed that the state government’s environmental
regulations stripped his land of any economic value.
Do you think the government’s action was a
reasonable regulation to protect the coastal
environment, or do you agree with the Court’s
majority that a taking occurred, requiring
compensation?
Lucas v. South Carolina Coastal Council 505 U.S.

1003 (1992)
court/505/1003.html


Thomas, White)
3 (Blackmun, Souter, Stevens)

OPINION CONCURRING IN THE JUDGMENT:
Kennedy
DISSENTING OPINIONS: Blackmun,
Stevens
SEPARATE STATEMENT: Souter
Facts:
David Lucas owned two vacant oceanfront lots on
the Isle of Palms, a barrier island near Charleston,
South Carolina. He acquired the property with the
intention of building single-family homes similar to
those already built on adjacent lots. When Lucas
bought the land there were no regulations
prohibiting such use. Shortly thereafter, however,
the state passed the Beachfront Management Act,
an environmental law that increased the state
coastal council’s authority to protect certain
shoreline areas against erosion and other dangers.
The council decided that the Lucas lots were in a
“critical area” and prohibited any new
construction there.
There is no doubt that under its police powers the

state has the right to pass such legislation, but
Lucas claimed that the new regulations amounted
to a taking of his property for a public purpose.
The Fifth Amendment, he argued, required the
state to pay him for the loss of his property. A
state trial judge agreed that the regulations had
made the Lucas property essentially worthless and
ordered the state to compensate him for his loss.
On appeal, the South Carolina Supreme Court
reversed, holding that the environmental
legislation was not a taking under the meaning of
the Constitution. Lucas appealed to the U.S.
Supreme Court.
Many legal experts saw this case as presenting

the Supreme Court with the opportunity to reset
the constitutional balance between private
property rights and the government’s authority to
regulate for the common good. As a consequence,
it is not surprising that a large number of
governments and organizations submitted amicus
curiae briefs. The administration of President
George H. W. Bush, conservative legal
organizations such as Pacific Legal Foundation,
and a long list of groups whose economic interests
were threatened by government land-use
regulations filed in behalf of Lucas. Among these
groups were the National Association of Home
Builders, the American Mining Congress, and the
American Farm Bureau Federation. Urging the
Court to support South Carolina’s position were
briefs from more than half the states, the U.S.
Conference of Mayors and other local government
groups, and organizations favoring government
protection of the environment, such as the
National Trust for Historic Preservation and the
Sierra Club. The stakes were high.
Arguments:
For the petitioner, David H. Lucas:
The state law is a valid exercise of the police

power, but it involves a taking for which Lucas
is constitutionally entitled to just
compensation.
The state cannot avoid the obligations of the
takings clause by claiming that its policy is a
regulation of a nuisance. The construction of a
home is not a nuisance.
The state’s regulation has rendered the
property economically worthless. When
regulation is that extensive, it becomes a
taking. Pennsylvania Coal Co. v. Mahon (1922).
The burden of confiscatory environmental
regulation should fall on society, not on
individual landowners.
For the respondent, state of

South Carolina:
Whether a compensable taking has occurred is
not determined exclusively by the reduction in
the property’s value, but also by the character
of the government’s actions, the government’s
interference with realistic investment
expectations, and the economic impact of the
regulations.
The beachfront environment was suffering
from ill-planned development, creating a
serious harm to public health and safety as
well as damage to other property. Regulation
was required to prevent continued harm.
Lucas was well aware that regulation was
necessary. He could not reasonably expect to
be free from future government restrictions
that would limit how he used his land and
reduce the property’s value. Such regulation is
not a taking.
Although Lucas has lost what he deems the
“highest and best” use of his land, the property
has not been rendered economically worthless.
One of two lots on the Isle of Palms that David

Lucas purchased with the intention of building
houses on them. Shortly after the sale was
completed, the South Carolina Coastal Council
determined that building on the lots would be
detrimental to the environment and prohibited
future development there. In 1992 the Supreme
Court agreed with Lucas that the state’s action
violated the takings clause.
Photograph by William A. Fischel

Court.
Prior to Justice Holmes’ exposition in Pennsylvania

Coal Co. v. Mahon (1922), it was generally thought
that the Takings Clause reached only a “direct
appropriation” of property or the functional
equivalent of a “practical ouster of [the owner’s]
possession.” Justice Holmes recognized in Mahon,
however, that, if the protection against physical
appropriations of private property was to be
meaningfully enforced, the government’s power to
redefine the range of interests included in the
ownership of property was necessarily constrained
by constitutional limits. If, instead, the uses of
private property were subject to unbridled,
uncompensated qualification under the police
power, the natural tendency of human nature
[would be] to extend the qualification more and
more until at last private property disappear[ed].
These considerations gave birth in that case to the
oft-cited maxim that, “while property may be
regulated to a certain extent, if regulation goes
too far, it will be recognized as a taking.”
Nevertheless, our decision in Mahon offered little

insight into when, and under what circumstances,
a given regulation would be seen as going “too
far” for purposes of the Fifth Amendment. In 70-
odd years of succeeding “regulatory takings”
jurisprudence, we have generally eschewed any
“‘set formula’” for determining how far is too far,
preferring to “engag[e] in . . . essentially ad hoc,
factual inquiries,” Penn Central Transportation Co.
v. New York City (1978). We have, however,
described at least two discrete categories of
regulatory action as compensable without case-
specific inquiry into the public interest advanced
in support of the restraint. The first encompasses
regulations that compel the property owner to
suffer a physical “invasion” of his property. In
general (at least with regard to permanent
invasions), no matter how minute the intrusion,
and no matter how weighty the public purpose
behind it, we have required compensation. For
example, in Loretto v. Teleprompter Manhattan
CATV Corp. (1982), we determined that New
York’s law requiring landlords to allow television
cable companies to emplace cable facilities in
their apartment buildings constituted a taking,
even though the facilities occupied, at most, only 1
1/2 cubic feet of the landlords’ property.
The second situation in which we have found

categorical treatment appropriate is where
regulation denies all economically beneficial or
productive use of land. As we have said on
numerous occasions, the Fifth Amendment is
violated when land use regulation “does not
substantially advance legitimate state interests or
denies an owner economically viable use of his
land.”
We have never set forth the justification for this

rule. Perhaps it is simply, as Justice Brennan
suggested, that total deprivation of beneficial use
is, from the landowner’s point of view, the
equivalent of a physical appropriation. Surely, at
least, in the extraordinary circumstance when no
productive or economically beneficial use of land
is permitted, it is less realistic to indulge our usual
assumption that the legislature is simply
“adjusting the benefits and burdens of economic
life” in a manner that secures an “average
reciprocity of advantage” to everyone concerned.
Pennsylvania Coal Co. v. Mahon. And the
functional basis for permitting the government, by
regulation, to affect property values without
compensation—that Government hardly could go
on if, to some extent, values incident to property
could not be diminished without paying for every
such change in the general law—does not apply to
the relatively rare situations where the
government has deprived a landowner of all
economically beneficial uses.
On the other side of the balance, affirmatively

supporting a compensation requirement, is the
fact that regulations that leave the owner of land
without economically beneficial or productive
options for its use—typically, as here, by requiring
land to be left substantially in its natural state—
carry with them a heightened risk that private
property is being pressed into some form of public
service under the guise of mitigating serious
public harm. . . .
We think, in short, that there are good reasons for

our frequently expressed belief that, when the
owner of real property has been called upon to
sacrifice all economically beneficial uses in the
name of the common good, that is, to leave his
property economically idle, he has suffered a
taking.
The trial court found Lucas’ two beachfront lots to

have been rendered valueless by respondent’s
enforcement of the coastal-zone construction ban.
Under Lucas’ theory of the case, which rested
upon our “no economically viable use” statements,
that finding entitled him to compensation. Lucas
believed it unnecessary to take issue with either
the purposes behind the Beachfront Management
Act or the means chosen by the South Carolina
Legislature to effectuate those purposes. The
South Carolina Supreme Court, however, thought
otherwise. In its view, the Beachfront
Management Act was no ordinary enactment, but
involved an exercise of South Carolina’s “police
powers” to mitigate the harm to the public
interest that petitioner’s use of his land might
occasion. . . .
It is correct that many of our prior opinions have

suggested that “harmful or noxious uses” of
property may be proscribed by government
regulation without the requirement of
compensation. For a number of reasons, however,
we think the South Carolina Supreme Court was
too quick to conclude that that principle decides
the present case. . . .
Where the State seeks to sustain regulation that

deprives land of all economically beneficial use,
we think it may resist compensation only if the
logically antecedent inquiry into the nature of the
owner’s estate shows that the proscribed use
interests were not part of his title to begin with.
This accords, we think, with our “takings”
jurisprudence, which has traditionally been guided
by the understandings of our citizens regarding
the content of, and the State’s power over, the
“bundle of rights” that they acquire when they
obtain title to property. It seems to us that the
property owner necessarily expects the uses of his
property to be restricted, from time to time, by
various measures newly enacted by the State in
legitimate exercise of its police powers; “[a]s long
recognized, some values are enjoyed under an
implied limitation, and must yield to the police
power.” Pennsylvania Coal Co. v. Mahon. . . . In the
case of land, . . . we think the notion pressed by
the Council that title is somehow held subject to
the “implied limitation” that the State may
subsequently eliminate all economically valuable
use is inconsistent with the historical compact
recorded in the Takings Clause that has become
part of our constitutional culture.
Where “permanent physical occupation” of land is

concerned, we have refused to allow the
government to decree it anew (without
compensation), no matter how weighty the
asserted “public interests” involved, Loretto v.
Teleprompter Manhattan CATV Corp.—though we
assuredly would permit the government to assert
a permanent easement that was a preexisting
limitation upon the landowner’s title. . . . We
believe similar treatment must be accorded
confiscatory regulations, i.e., regulations that
prohibit all economically beneficial use of land:
any limitation so severe cannot be newly
legislated or decreed (without compensation), but
must inhere in the title itself, in the restrictions
that background principles of the State’s law of
property and nuisance already place upon land
ownership. A law or decree with such an effect
must, in other words, do no more than duplicate
the result that could have been achieved in the
courts—by adjacent landowners (or other uniquely
affected persons) under the State’s law of private
nuisance, or by the State under its complementary
power to abate nuisances that affect the public
generally, or otherwise.
On this analysis, the owner of a lakebed, for

example, would not be entitled to compensation
when he is denied the requisite permit to engage
in a landfilling operation that would have the
effect of flooding others’ land. Nor the corporate
owner of a nuclear generating plant, when it is
directed to remove all improvements from its land
upon discovery that the plant sits astride an
earthquake fault. Such regulatory action may well
have the effect of eliminating the land’s only
economically productive use, but it does not
proscribe a productive use that was previously
permissible under relevant property and nuisance
principles. The use of these properties for what
are now expressly prohibited purposes was always
unlawful, and (subject to other constitutional
limitations) it was open to the State at any point to
make the implication of those background
principles of nuisance and property law explicit. . .
. When, however, a regulation that declares “off
limits” all economically productive or beneficial
uses of land goes beyond what the relevant
background principles would dictate,
compensation must be paid to sustain it.
The judgment is reversed, and the cause

remanded for proceedings not inconsistent with
this opinion.
So ordered.
JUSTICE BLACKMUN,
dissenting.
Today the Court launches a missile to kill a mouse.
The State of South Carolina prohibited petitioner

Lucas from building a permanent structure on his
property. . . . Relying on an unreviewed (and
implausible) state trial court finding that this
restriction left Lucas’ property valueless, this
Court granted review to determine whether
compensation must be paid in cases where the
State prohibits all economic use of real estate.
According to the Court, such an occasion never
has arisen in any of our prior cases, and the Court
imagines that it will arise “relatively rarely” or
only in “extraordinary circumstances.” Almost
certainly, it did not happen in this case.
Nonetheless, the Court presses on to decide the

issue, and as it does, it ignores its jurisdictional
limits, remakes its traditional rules of review, and
creates simultaneously a new categorical rule and
an exception (neither of which is rooted in our
prior case law, common law, or common sense). I
protest not only the Court’s decision, but each
step taken to reach it. More fundamentally, I
question the Court’s wisdom in issuing sweeping
new rules to decide such a narrow case. Surely . . .
the Court could have reached the result it wanted
without inflicting this damage upon our Takings
Clause jurisprudence. . . .
The Court makes . . . , in my view, misguided and

unsupported changes in our taking doctrine. While
it limits these changes to the most narrow subset
of government regulation—those that eliminate all
economic value from land—these changes go far
beyond what is necessary to secure petitioner
Lucas’ private benefit. One hopes they do not go
beyond the narrow confines the Court assigns
them to today.
I dissent.
The Just Compensation Clause was designed to
bar Government from forcing some people alone
to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.
Accordingly, one of the central concerns of our
takings jurisprudence is “prevent[ing] the public
from loading upon one individual more than his
just share of the burdens of government.”
Monongahela Navigation Co. v. United States
(1893). We have, therefore, in our takings law
frequently looked to the generality of a regulation
of property. . . .
In analyzing takings claims, courts have long

recognized the difference between a regulation
that targets one or two parcels of land and a
regulation that enforces a state-wide policy. As
one early court stated with regard to a waterfront
regulation,
If such restraint were in fact imposed upon the

estate of one proprietor only, out of several estates
on the same line of shore, the objection would be
much more formidable.
Commonwealth v. Alger (1851).
In considering Lucas’ claim, the generality of the

Beachfront Management Act is significant. The
Act does not target particular landowners, but
rather regulates the use of the coastline of the
entire State. Indeed, South Carolina’s Act is best
understood as part of a national effort to protect
the coastline, one initiated by the Federal Coastal
Zone Management Act of 1972. Pursuant to the
Federal Act, every coastal State has implemented
coastline regulations. Moreover, the Act did not
single out owners of undeveloped land. The Act
also prohibited owners of developed land from
rebuilding if their structures were destroyed, and
what is equally significant, from repairing erosion
control devices, such as seawalls. In addition, in
some situations, owners of developed land were
required to renouris[h] the beach . . . on a yearly
basis with an amount . . . of sand . . . not . . . less
than one and one-half times the yearly volume of
sand lost due to erosion. In short, the South
Carolina Act imposed substantial burdens on
owners of developed and undeveloped land alike.
This generality indicates that the Act is not an
effort to expropriate owners of undeveloped land.
Admittedly, the economic impact of this regulation

is dramatic, and petitioner’s investment-backed
expectations are substantial. Yet, if anything, the
costs to and expectations of the owners of
developed land are even greater: I doubt,
however, that the cost to owners of developed land
of renourishing the beach and allowing their
seawalls to deteriorate effects a taking. The costs
imposed on the owners of undeveloped land, such
as petitioner, differ from these costs only in
degree, not in kind.
The impact of the ban on developmental uses must

also be viewed in light of the purposes of the Act.
The legislature stated the purposes of the Act as
“protect[ing], preserv[ing], restor[ing] and
enhanc[ing] the beach/dune system” of the State
not only for recreational and ecological purposes,
but also to “protec[t] life and property.” The State,
with much science on its side, believes that the
“beach/dune system [acts] as a buffer from high
tides, storm surge, [and] hurricanes.” This is a
traditional and important exercise of the State’s
police power. . . .
In view of all of these factors, even assuming that

petitioner’s property was rendered valueless, the
risk inherent in investments of the sort made by
petitioner, the generality of the Act, and the
compelling purpose motivating the South Carolina
Legislature persuade me that the Act did not
effect a taking of petitioner’s property.
Accordingly, I respectfully dissent.
The Court’s decision meant that David Lucas was

entitled to compensation in return for being denied
the right to develop his land (see Box 11-1). It also
meant that the Court was continuing to broaden its
definition of what constitutes a taking and to expand
the range of situations in which government is
required to provide compensation to private
landowners.
Box 11-1 Aftermath . . . Lucas v. South

Carolina Coastal Council
IN 1986 David Lucas, a developer of residential

properties, purchased two lots on the Isle of Palms
in South Carolina for $975,000. He intended to
build two houses on the land, keeping one for
himself and selling the other. Because of
environmental concerns, however, the state
coastal council denied Lucas permission to build.
In response, Lucas took legal action, demanding
compensation for his economic loss. He won a
$1.23 million judgment in the state trial court, but
the state supreme court reversed that ruling. In
1992 the U.S. Supreme Court found that Lucas
had been deprived of property for a public
purpose and was entitled to be compensated. The
justices remanded the case back to the South
Carolina courts for further proceedings.
No additional court action was required, however.

The state had lost the essential issue presented in
the case, and only the determination of adequate
compensation remained to be decided. South
Carolina was understandably eager to settle the
dispute rather than prolong the legal battle. Lucas
and the state came to a quick out-of-court
settlement in which the state agreed to pay Lucas
$1.5 million in return for the property.
To recoup the funds lost in the Lucas settlement

and related litigation costs, the state decided to
sell the properties. Ironically, to increase the lots’
value prior to sale, the state announced that the
new owners would be allowed to build houses on
them. A new home of about 5,000 square feet now
sits on one of the lots formerly owned by Lucas.
Sources: Arizona Republic, November 2, 1994;

Chicago Sun-Times, July 28, 1995; Christian
Science Monitor, September 27, 1993; San Diego
Union-Tribune, July 21, 1993; William A. Fischel,
“A Photographic Update on Lucas v. South
Carolina Coastal Council: A Photographic Essay,”
March 30, 2000 (original posted February 1995),
http://www.dartmouth.edu/~wfischel/lucasupdate.
html.
The justices further clarified the meaning of per se

takings in Horne v. Department of Agriculture
(2015), a case involving the government’s permanent
possession of the seized property. The decision also
addressed the question of whether the takings
clause applies only to real property or whether the
government seizure of personal property also
requires compensation.
Horne v. Department of Agriculture 576 U.S. ____

(2015)
275.html


Roberts, Scalia, Thomas)
1 (Sotomayor)

DISSENTING IN PART: Breyer
DISSENTING OPINION: Sotomayor
Facts:
The Agricultural Marketing Agreement Act of
1937 authorizes the secretary of agriculture to
develop marketing orders to help maintain stable
markets for various agricultural products. The
secretary’s marketing orders for raisins created a
Raisin Administrative Committee that imposed a
reserve requirement obliging growers to set aside
a certain percentage of their crop for the
government’s use free of charge. The government
makes use of those reserved raisins by selling
them in noncompetitive markets, donating them,
or disposing of them by other means consistent
with establishing an orderly market. Any profits
left over from this operation, less administrative
costs, are returned to the growers. In 2002–2003,
the reserve requirement was 47 percent of the
raisin crop. In 2003–2004, it was 30 percent.
Raisins retained by the growers after the reserved
raisins are set aside (known as “free tonnage
raisins”) may be used or sold by the growers at
their discretion.
For several decades Californians Marvin and

Laura Horne have produced raisins from the
Thompson seedless grapes they grow on their
Fresno area farm. Because of their growing
dissatisfaction with the government’s raisin
marketing program, the Hornes in 2002 and 2003
refused to set aside any raisins. When government
trucks arrived at their Raisin Valley Farm, the
Hornes refused entry. In response, the
government assessed a fine equal to the market
value of the missing grapes ($480,000) and a civil
penalty just over $200,000 for failure to comply
with the government policy. The Hornes took legal
action against the Department of Agriculture,
claiming that the reserve requirement violates the
takings clause. After several years of litigation, the
U.S. Court of Appeals for the Ninth Circuit finally
upheld the government program, finding that the
reserve requirement was a reasonable response to
the government’s interest in ensuring an orderly
raisin market and not a taking.
Raisin farmer Marvin Horne, who successfully

challenged the federal government’s reserve
raisin program as a violation of the Fifth
Amendment’s takings clause.
AP Photo/Gary Kazanjian
Arguments:
For the petitioners, Marvin D. and Laura
A. Horne:
The core protection of the takings clause is the

requirement that the government must pay
just compensation whenever it physically takes
possession of property—that is, a per se
taking.
The raisin marketing order works as a physical
taking for which just compensation is
categorically required.
The Fifth Amendment duty to compensate for
physical takings applies to personal property
as much as it does to real property.
For the respondent, the U.S.

Department of Agriculture:
The marketing order preserves the producer’s
ownership in the net proceeds from the sale of
the reserved raisins. Thus, producers are not
absolutely dispossessed of their property.
Producers voluntarily choose to participate in
the commercial raisin market. They could
instead grow other crops or grow grapes for
purposes other than raisin production.
The producers receive economic benefits from
the creation and maintenance of an orderly
market that increases the value of their free
tonnage raisins, thus compensating them for
the loss of their reserve raisins.
Chief Justice Roberts Delivered the Opinion of
the Court.
The petition for certiorari poses three questions,

which we answer in turn.
The first question presented asks “Whether the

government’s ‘categorical duty’ under the Fifth
Amendment to pay just compensation when it
‘physically takes possession of an interest in
property,’ Arkansas Game & Fish Comm’n v.
United States (2012), applies only to real property
and not to personal property.” The answer is no.
There is no dispute that the “classic taking [is one]

in which the government directly appropriates
private property for its own use.” Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional
Planning Agency (2002). Nor is there any dispute
that, in the case of real property, such an
appropriation is a per se taking that requires just
compensation. See Loretto v. Teleprompter
Manhattan CATV Corp. (1982).
Nothing in the text or history of the Takings

Clause, or our precedents, suggests that the rule
is any different when it comes to appropriation of
personal property. The Government has a
categorical duty to pay just compensation when it
takes your car, just as when it takes your home.
The Takings Clause provides: “[N]or shall private

property be taken for public use, without just
compensation.” It protects “private property”
without any distinction between different types.
The principle reflected in the Clause goes back at
least 800 years to Magna Carta, which specifically
protected agricultural crops from uncompensated
takings. . . .
The colonists brought the principles of Magna

Carta with them to the New World, including that
charter’s protection against uncompensated
takings of personal property. . . .
Nothing in this history suggests that personal

property was any less protected against physical
appropriation than real property. . . .
Prior to this Court’s decision in Pennsylvania Coal

Co. v. Mahon (1922), the Takings Clause was
understood to provide protection only against a
direct appropriation of property—personal or real.
Pennsylvania Coal expanded the protection of the
Takings Clause, holding that compensation was
also required for a “regulatory taking”—a
restriction on the use of property that went “too
far.” And in Penn Central Transp. Co. v. New York
City (1978), the Court clarified that the test for
how far was “too far” required an “ad hoc” factual
inquiry. That inquiry required considering factors
such as the economic impact of the regulation, its
interference with reasonable investment-backed
expectations, and the character of the government
action.
Four years after Penn Central, however, the Court

reaffirmed the rule that a physical appropriation
of property gave rise to a per se taking, without
regard to other factors. In Loretto, the Court held
that requiring an owner of an apartment building
to allow installation of a cable box on her rooftop
was a physical taking of real property, for which
compensation was required. That was true without
regard to the claimed public benefit or the
economic impact on the owner. The Court
explained that such protection was justified not
only by history, but also because “[s]uch an
appropriation is perhaps the most serious form of
invasion of an owner’s property interests,”
depriving the owner of the “the rights to possess,
use and dispose of” the property. That reasoning—
both with respect to history and logic—is equally
applicable to a physical appropriation of personal
property. . . .
The reserve requirement imposed by the Raisin

Committee is a clear physical taking. Actual
raisins are transferred from the growers to the
Government. Title to the raisins passes to the
Raisin Committee. The Committee’s raisins must
be physically segregated from free-tonnage
raisins. . . . The Committee disposes of what
become its raisins as it wishes, to promote the
purposes of the raisin marketing order.
Raisin growers subject to the reserve requirement

thus lose the entire “bundle” of property rights in
the appropriated raisins—”the rights to possess,
use and dispose of” them, Loretto,—with the
exception of the speculative hope that some
residual proceeds may be left when the
Government is done with the raisins and has
deducted the expenses of implementing all
aspects of the marketing order. The Government’s
“actual taking of possession and control” of the
reserve raisins gives rise to a taking as clearly “as
if the Government held full title and ownership,”
as it essentially does. The Government’s formal
demand that the Hornes turn over a percentage of
their raisin crop without charge, for the
Government’s control and use, is “of such a
unique character that it is a taking without regard
to other factors that a court might ordinarily
examine.”
The Government thinks it “strange” and the

dissent “baffling” that the Hornes object to the
reserve requirement, when they nonetheless
concede that “the government may prohibit the
sale of raisins without effecting a per se taking.”
But that distinction flows naturally from the
settled difference in our takings jurisprudence
between appropriation and regulation. A physical
taking of raisins and a regulatory limit on
production may have the same economic impact
on a grower. The Constitution, however, is
concerned with means as well as ends. The
Government has broad powers, but the means it
uses to achieve its ends must be “consist[ent] with
the letter and spirit of the constitution.”
McCulloch v. Maryland (1819). As Justice Holmes
noted, “a strong public desire to improve the
public condition is not enough to warrant
achieving the desire by a shorter cut than the
constitutional way.” Pennsylvania Coal.
The second question presented asks “Whether the

government may avoid the categorical duty to pay
just compensation for a physical taking of
property by reserving to the property owner a
contingent interest in a portion of the value of the
property, set at the government’s discretion.” The
answer is no.
The Government and dissent argue that raisins

are fungible goods whose only value is in the
revenue from their sale. According to the
Government, the raisin marketing order leaves
that interest with the raisin growers: After selling
reserve raisins and deducting expenses and
subsidies for exporters, the Raisin Committee
returns any net proceeds to the growers. The
Government contends that because growers are
entitled to these net proceeds, they retain the
most important property interest in the reserve
raisins, so there is no taking in the first place. . . .
But when there has been a physical appropriation,

“we do not ask . . . whether it deprives the owner
of all economically valuable use” of the item
taken. Tahoe-Sierra Preservation Council (“When
the government physically takes possession of an
interest in property for some public purpose, it
has a categorical duty to compensate the former
owner, regardless of whether the interest that is
taken constitutes an entire parcel or merely a part
thereof.”) . . . The fact that the growers retain a
contingent interest of indeterminate value does
not mean there has been no physical taking,
particularly since the value of the interest
depends on the discretion of the taker, and may be
worthless, as it was for one of the two years at
issue here. . . .
The third question presented asks “Whether a

governmental mandate to relinquish specific,
identifiable property as a ‘condition’ on permission
to engage in commerce effects a per se taking.”
The answer, at least in this case, is yes.
The Government contends that the reserve

requirement is not a taking because raisin
growers voluntarily choose to participate in the
raisin market. According to the Government, if
raisin growers don’t like it, they can “plant
different crops,” or “sell their raisin-variety grapes
as table grapes or for use in juice or wine.”
“Let them sell wine” is probably not much more

comforting to the raisin growers than similar
retorts have been to others throughout history. In
any event, the Government is wrong as a matter of
law. In Loretto, we rejected the argument that the
New York law was not a taking because a landlord
could avoid the requirement by ceasing to be a
landlord. We held instead that “a landlord’s ability
to rent his property may not be conditioned on his
forfeiting the right to compensation for a physical
occupation.”. . .
The Government . . . [relies] heavily on

Ruckelshaus v. Monsanto Co. (1984). There we
held that the Environmental Protection Agency
could require companies manufacturing
pesticides, fungicides, and rodenticides to disclose
health, safety, and environmental information
about their products as a condition to receiving a
permit to sell those products. While such
information included trade secrets in which
pesticide manufacturers had a property interest,
those manufacturers were not subjected to a
taking because they received a “valuable
Government benefit” in exchange—a license to sell
dangerous chemicals.
The taking here cannot reasonably be

characterized as part of a similar voluntary
exchange. In one of the years at issue here, the
Government insisted that the Hornes turn over 47
percent of their raisin crop, in exchange for the
“benefit” of being allowed to sell the remaining 53
percent. The next year, the toll was 30 percent . . .
Selling produce in interstate commerce, although
certainly subject to reasonable government
regulation, is similarly not a special governmental
benefit that the Government may hold hostage, to
be ransomed by the waiver of constitutional
protection. Raisins are not dangerous pesticides;
they are a healthy snack. A case about
conditioning the sale of hazardous substances on
disclosure of health, safety, and environmental
information related to those hazards is hardly on
point. . . .
Finally, the Government briefly argues that if we

conclude that the reserve requirement effects a
taking, we should remand for the Court of Appeals
to calculate “what compensation would have been
due if petitioners had complied with the reserve
requirement.” The Government contends that the
calculation must consider what the value of the
reserve raisins would have been without the price
support program, as well as “other benefits . . .
from the regulatory program, such as higher
consumer demand for raisins spurred by
enforcement of quality standards and promotional
activities.” Indeed, according to the Government,
the Hornes would “likely” have a net gain under
this theory. . . .
The Government has already calculated the

amount of just compensation in this case, when it
fined the Hornes the fair market value of the
raisins: $483,843.53. The Government cannot now
disavow that valuation. . . . There is accordingly no
need for a remand; the Hornes should simply be
relieved of the obligation to pay the fine and
associated civil penalty they were assessed when
they resisted the Government’s effort to take their
raisins. This case, in litigation for more than a
decade, has gone on long enough.
The judgment of the United States Court of

Appeals for the Ninth Circuit is reversed.
It is so ordered.
JUSTICE BREYER, with whom JUSTICE

GINSBURG and JUSTICE KAGAN join, [concurs
with the conclusion that a taking occurred, but
dissents from the Court’s decision not to remand
the case to the court of appeals to determine the
amount of compensation due].
JUSTICE SOTOMAYOR,
dissenting.
The Hornes claim, and the Court agrees, that the
Raisin Marketing Order effects a per se taking
under our decision in Loretto v. Teleprompter
Manhattan CATV Corp. (1982). But Loretto sets a
high bar for such claims: It requires that each and
every property right be destroyed by
governmental action before that action can be said
to have effected a per se taking. Because the
Order does not deprive the Hornes of all of their
property rights, it does not effect a per se taking. I
respectfully dissent from the Court’s contrary
holding. . . .
What Constitutes a Public Use?

Although the Fifth Amendment recognizes the
government’s power to take private property, it does
not allow all such seizures. The takings clause
explicitly stipulates that the government may take
private property only for a “public use.” Even if the
government provides adequate compensation, it may
not take property against the owner’s will for the
sole benefit of a private individual or organization.
When the government plans to build a new
courthouse, road, or park, the public use is clear, but
it would be of doubtful constitutionality if a state
seized a piece of private property under the power of
eminent domain and gave it to a private fraternal
organization to construct a new lodge.
Throughout most of the nation’s history, the justices

were relatively insistent about the public use
requirement. The Court commented on this subject
as early as 1884 in Cole v. LaGrange. In this dispute
the city of LaGrange, Missouri, had issued twenty-
five bonds to LaGrange Iron and Steel Company to
help finance the operation of a mill. This act was
attacked on the ground that the bonds were being
used for a private, not public, use. For the Court,
Justice Horace Gray agreed:
The general grant of legislative power in the

Constitution of a state does not enable the
legislature, in the exercise either of the right of
eminent domain, or the right of taxation, to take
private property, without the owner’s consent,
for any but a public object.
A few years later, in Missouri Pacific Railway

Company v. Nebraska (1896), the Court ruled that
the taking of private property, without the owner’s
consent, for the private use of another violates due
process of law.
Even in the early twentieth century the Court

remained wedded to the strict enforcement of this
requirement. Cincinnati v. Vester (1930) illustrates
this point. The city of Cincinnati had confiscated
private property to carry out a road-widening
project. The amount of property seized, however,
was in excess of what was needed. The surplus
property was later sold at a profit or otherwise
transferred to another private party. The Court ruled
this taking to be unlawful for its failure to meet the
public use requirement.
After the New Deal, however, the Court’s position

began to change. In United States ex rel.
Tennessee Valley Authority [TVA] v. Welch (1946),
the justices upheld the authority of the federal
government to condemn private land that would be
flooded as a consequence of the TVA’s flood-control
programs. In doing so, the Court deferred to
Congress’s authority to determine what constitutes a
public use. That same position was articulated in the
Court’s unanimous decision in Berman v. Parker
(1954), in which the Court failed to provide relief to
a landowner whose property was taken from him as
part of an urban renewal project but later was
transferred to another private party. Is this decision
consistent with the letter and spirit of the takings
clause?
Berman v. Parker 348 U.S. 26 (1954)
court/348/26.html

Frankfurter, Minton, Reed, Warren)
Facts:
Concerned about growing slums and urban blight
in Washington, D.C., Congress passed the District
of Columbia Redevelopment Act of 1945. This law
authorized the National Capital Planning
Commission to develop comprehensive land-use
plans to improve the District’s “housing, business,
industry, recreation, education, public buildings,
public reservations, and other general categories
of public and private uses of the land” for the
public health, safety, morals, and welfare of its
citizens. The law required public hearings on any
proposals, and the plans were subject to the
approval of the District’s commissioners. Once the
urban renewal plans were approved, the District
of Columbia Redevelopment Land Agency was
empowered to acquire, through eminent domain if
necessary, the land needed to improve the
blighted conditions. After acquisition, the agency
would transfer title to government agencies as
necessary for public purposes such as streets,
utilities, recreational facilities, and schools. The
remainder would be leased or sold to private
concerns for redevelopment consistent with the
land-use plan.
Berman v. Parker arose over a comprehensive plan

for a section known as Project Area B in
Southwest Washington. The Planning Commission
reported the following facts about the area: 64.3
percent of the dwellings were beyond repair, and
18.4 percent needed major repairs; only 17.3
percent were satisfactory. In addition, 57.8
percent of the dwellings had outside toilets, 60.3
percent had no baths, 29.3 percent lacked
electricity, 82.2 percent had no wash basins or
laundry tubs, and 83.8 percent lacked central
heating. About five thousand people lived in Area
B, of whom 97.5 percent were African American.
The commission concluded that the area required
redevelopment in the interests of public health.
Max R. Morris owned a piece of property in Area
B, on which was located a department store. He
objected to the government’s acquisition of his
property on the ground that it was not slum
housing. Under the comprehensive plan, Morris’s
property would be sold or leased to other private
owners for redevelopment. After Morris died, his
executors, Samuel Berman and Solomon Feldman,
pursued legal action. Although it expressed
reservations, the federal district court upheld the
constitutionality of the government’s actions.
Berman and Feldman appealed.
Arguments:
For the appellants, Samuel Berman and
Solomon Feldman, executors of the
Morris estate:
The taking of private property for city
redevelopment and subsequent ownership by
other private parties is not a public use.
The law unconstitutionally seizes one man’s
land to be sold to another man merely to
create a community that better meets the
government’s idea of what is appropriate and
well planned.
The District may have the power to clear
slums, but the appellant’s property is not
blighted.
The government is seizing the property without
affording the appellant the opportunity to
remodel or redevelop his property to meet the
specifications of the redevelopment legislation.
For the appellees, Andrew
Parker, John A. Remon, and
James E. Colliflower,
commissioners of the District of
Columbia, et al.:
Congress and the District of Columbia have the
constitutional authority to eliminate slums and
prevent slum-breeding conditions in the
nation’s capital city. This is a public purpose.
The law of eminent domain does not require
the government to occupy the seized property.
The future private ownership of the
condemned properties does not negate the
public purpose of the legislation.
Congress concluded that the public good could
not be achieved on a piecemeal basis but
required redeveloping large areas of the
District.

the Court.
The power of Congress over the District of

Columbia includes all the legislative powers which
a state may exercise over its affairs. We deal, in
other words, with what traditionally has been
known as the police power. An attempt to define
its reach or trace its outer limits is fruitless, for
each case must turn on its own facts. The
definition is essentially the product of legislative
determinations addressed to the purposes of
government, purposes neither abstractly nor
historically capable of complete definition. Subject
to specific constitutional limitations, when the
legislature has spoken, the public interest has
been declared in terms well-nigh conclusive. In
such cases, the legislature, not the judiciary, is the
main guardian of the public needs to be served by
social legislation, whether it be Congress
legislating concerning the District of Columbia or
the States legislating concerning local affairs. This
principle admits of no exception merely because
the power of eminent domain is involved. The role
of the judiciary in determining whether that power
is being exercised for a public purpose is an
extremely narrow one.
Public safety, public health, morality, peace and

quiet, law and order—these are some of the more
conspicuous examples of the traditional
application of the police power to municipal
affairs. Yet they merely illustrate the scope of the
power and do not delimit it. Miserable and
disreputable housing conditions may do more than
spread disease and crime and immorality. They
may also suffocate the spirit by reducing the
people who live there to the status of cattle. They
may indeed make living an almost insufferable
burden. They may also be an ugly sore, a blight on
the community which robs it of charm, which
makes it a place from which men turn. The misery
of housing may despoil a community as an open
sewer may ruin a river.
We do not sit to determine whether a particular

housing project is or is not desirable. The concept
of public welfare is broad and inclusive. The
values it represents are spiritual as well as
physical, aesthetic as well as monetary. It is within
the power of the legislature to determine that the
community should be beautiful as well as healthy,
spacious as well as clean, well-balanced as well as
carefully patrolled. In the present case, the
Congress and its authorized agencies have made
determinations that take into account a wide
variety of values. It is not for us to reappraise
them. If those who govern the District of Columbia
decide that the Nation’s Capital should be
beautiful as well as sanitary, there is nothing in
the Fifth Amendment that stands in its way.
Once the object is within the authority of

Congress, the right to realize it through the
exercise of eminent domain is clear. For the power
of eminent domain is merely the means to an end.
Once the object is within the authority of
Congress, the means by which it will be attained is
also for Congress to determine. Here one of the
means chosen is the use of private enterprise for
redevelopment of the area. Appellants argue that
this makes the project a taking from one
businessman for the benefit of another
businessman. But the means of executing the
project are for Congress and Congress alone to
determine, once the public purpose has been
established. The public end may be as well or
better served through an agency of private
enterprise than through a department of
government—or so the Congress might conclude.
We cannot say that public ownership is the sole
method of promoting the public purposes of
community redevelopment projects. What we have
said also disposes of any contention concerning
the fact that certain property owners in the area
may be permitted to repurchase their properties
for redevelopment in harmony with the over-all
plan. That, too, is a legitimate means which
Congress and its agencies may adopt, if they
choose.
In the present case, Congress and its authorized

agencies attack the problem of the blighted parts
of the community on an area rather than on a
structure-by-structure basis. That, too, is opposed
by the appellants. They maintain that since their
building does not imperil health or safety nor
contribute to the making of a slum or a blighted
area, it cannot be swept into a redevelopment plan
by the mere dictum of the Planning Commission or
the Commissioners. The particular uses to be
made of the land in the project were determined
with regard to the needs of the particular
community. The experts concluded that if the
community were to be healthy, if it were not to
revert again to a blighted or slum area, as though
possessed of a congenital disease, the area must
be planned as a whole. It was not enough, they
believed, to remove existing buildings that were
insanitary or unsightly. It was important to
redesign the whole area so as to eliminate the
conditions that cause slums—the overcrowding of
dwellings, the lack of parks, the lack of adequate
streets and alleys, the absence of recreational
areas, the lack of light and air, the presence of
outmoded street patterns. It was believed that the
piecemeal approach, the removal of individual
structures that were offensive, would only be a
palliative. The entire area needed redesigning so
that a balanced, integrated plan could be
developed for the region, including not only new
homes but also schools, churches, parks, streets,
and shopping centers. In this way it was hoped
that the cycle of decay of the area could be
controlled and the birth of future slums prevented.
Such diversification in future use is plainly
relevant to the maintenance of the desired
housing standards and therefore within
congressional power.
The District Court below suggested that, if such a

broad scope were intended for the statute, the
standards contained in the Act would not be
sufficiently definite to sustain the delegation of
authority. We do not agree. We think the standards
prescribed were adequate for executing the plan
to eliminate not only slums as narrowly defined by
the District Court but also the blighted areas that
tend to produce slums. Property may of course be
taken for this redevelopment which, standing by
itself, is innocuous and unoffending. But we have
said enough to indicate that it is the need of the
area as a whole which Congress and its agencies
are evaluating. If owner after owner were
permitted to resist these redevelopment programs
on the ground that his particular property was not
being used against the public interest, integrated
plans for redevelopment would suffer greatly. The
argument pressed on us is, indeed, a plea to
substitute the landowner’s standard of the public
need for the standard prescribed by Congress. But
as we have already stated, community
redevelopment programs need not, by force of the
Constitution, be on a piecemeal basis—lot by lot,
building by building.
It is not for the courts to oversee the choice of the
boundary line nor to sit in review on the size of a
particular project area. Once the question of the
public purpose has been decided, the amount and
character of land to be taken for the project and
the need for a particular tract to complete the
integrated plan rests in the discretion of the
legislative branch.
The District Court indicated grave doubts

concerning the Agency’s right to take full title to
the land as distinguished from the objectionable
buildings located on it. We do not share those
doubts. If the Agency considers it necessary in
carrying out the redevelopment project to take full
title to the real property involved, it may do so. It
is not for the courts to determine whether it is
necessary for successful consummation of the
project that unsafe, unsightly, or insanitary
buildings alone be taken or whether title to the
land be included, any more than it is the function
of the courts to sort and choose among the various
parcels selected for condemnation.
The rights of these property owners are satisfied

when they receive that just compensation which
the Fifth Amendment exacts as the price of the
taking.
The judgment of the District Court, as modified by

this opinion, is
Affirmed.
The Court’s deference to the legislature on questions

of what constitutes a public purpose was extended to
the state level in Hawaii Housing Authority v. Midkiff
(1984). Challenged here was Hawaii’s plan to
redistribute land using the power of eminent domain
to force large landowners to sell their properties to
the people who leased them. The transfer of land
was clearly from one private owner to another. Was
this program a benefit to the public generally, or did
it serve only the private interests of those who now
were able to become landowners?
Hawaii Housing Authority v. Midkiff 467 U.S. 229

(1984)
court/467/229.html

Vote: 8 (Blackmun, Brennan, Burger, O’Connor,

Powell, Rehnquist, Stevens, White)
OPINION OF THE COURT: O’Connor

NOT PARTICIPATING: Marshall
Facts:
The Hawaiian Islands were settled by Polynesians
who developed a political and economic system
based on principles of monarchy and feudalism.
Ownership and control of the land rested with the
islands’ high chief, who distributed parcels to
various lower-ranking chiefs. At the end of the
chain, tenant farmers and their families lived on
the land and worked it. Private ownership of real
property was not permitted. Ultimate ownership of
all lands rested with the family of the islands’ high
chief.
The monarchy was overthrown in 1893, and, after

a brief period as a republic, the islands were
annexed by the United States in 1898. When
Hawaii became the fiftieth state in 1959, the land
still remained in the hands of a few. In the mid-
1960s the federal government owned 49 percent
of the land in Hawaii, and just seventy-two private
landowners held another 47 percent. On Oahu, the
most commercially developed island, twenty-two
landowners controlled more than 72 percent of
the private real estate. The Hawaiian legislature
determined that this land concentration condition
was detrimental to the state’s economy and
general welfare. The legislative goal was to
expand significantly the number of individuals
who owned real estate and create a competitive
housing market.
The legislature first decided to compel landowners

to sell large portions of their holdings to those
individuals who leased the land from them. The
landowners opposed this plan because it would
result in exceedingly high capital gains that would
increase their federal taxes. The legislature then
revised its plans and enacted the Land Reform Act
of 1967. This legislation allowed the state to
condemn tracts of residential real estate. The
Hawaii Housing Authority (HHA) would then seize
the condemned property and help arrange the sale
of individual parcels to the private parties who
had been leasing the land. Compensation for land
seized by the government enjoyed a more
favorable tax status than did profits from outright
sales, making the legislation more acceptable to
the landowners.
Frank Midkiff and others owned a large tract of

land that was condemned under the land reform
program, but Midkiff, the HHA, and residents
currently leasing lots could not agree on a fair
price. Midkiff and his co-owners filed suit in
federal district court to have the Land Reform Act
declared unconstitutional as a violation of the
takings clause. Among the arguments presented
was the claim that redistributing land ownership
was not an appropriate “public use” under the
meaning of the Fifth Amendment. The district
court rejected this argument, but the U.S. Court of
Appeals for the Ninth Circuit reversed. The
housing authority appealed to the Supreme Court.
Arguments:
For the appellant, Hawaii Housing
Authority:
Berman v. Parker’s treatment of the public use

requirement should control. The fact that
seized private property is ultimately
transferred to another private party does not
mean that the public use requirement has not
been met.
Deference should be given to the legislature’s
determination of what constitutes public use.
Breaking up the land oligopoly and creating a
competitive housing market is undoubtedly a
public use.
Given the unique conditions in Hawaii, the
creation of a competitive housing market could
not occur without legislation such as the Land
Reform Act.
For the appellees, Frank E.

Midkiff et al.:
That the state legislature declared there to be
a public use does not make it so. The Court
should not surrender that question to the
legislature.
This is an unprecedented state transfer of
property from one set of private owners to
other private owners.
The government is not purchasing the land, but
only acting as a conduit to facilitate the
purchase of individual parcels by private
parties.
Unlike in Berman v. Parker and other eminent
domain actions, no change in the usage of the
land is contemplated. Residential housing lots
will remain residential housing lots, and the
current resident will continue to be the
resident. The only change is in the ownership
of the property, a change that benefits a
private party and not the public.
Justice O’Connor Delivered the Opinion of the
Court.
The Fifth Amendment of the United States

Constitution provides, in pertinent part, that
“private property [shall not] be taken for public
use, without just compensation.” These cases
present the question whether the Public Use
Clause of that Amendment, made applicable to the
States through the Fourteenth Amendment,
prohibits the State of Hawaii from taking, with
just compensation, title in real property from
lessors and transferring it to lessees in order to
reduce the concentration of ownership of fees
simple in the State. We conclude that it does not. .
..
The majority of the Court of Appeals . . .

determined that the Act violates the “public use”
requirement of the Fifth and Fourteenth
Amendments. On this argument, however, we find
ourselves in agreement with the dissenting judge
in the Court of Appeals.
The starting point for our analysis of the Act’s

constitutionality is the Court’s decision in Berman
v. Parker (1954). In Berman, the Court held
constitutional the District of Columbia
Redevelopment Act of 1945. That Act provided
both for the comprehensive use of the eminent
domain power to redevelop slum areas and for the
possible sale or lease of the condemned lands to
private interests. In discussing whether the
takings authorized by that Act were for a “public
use,” the Court stated:
“We deal . . . with what traditionally has been

known as the police power. An attempt to
define its reach or trace its outer limits is
fruitless, for each case must turn on its own
facts. The definition is essentially the product
of legislative determinations addressed to the
purposes of government, purposes neither
abstractly nor historically capable of complete
definition. Subject to specific constitutional
limitations, when the legislature has spoken,
the public interest has been declared in terms
well-nigh conclusive. In such cases the
legislature, not the judiciary, is the main
guardian of the public needs to be served by
social legislation, whether it be Congress
legislating concerning the District of Columbia
. . . or the States legislating concerning local
affairs. . . . This principle admits of no
exception merely because the power of
eminent domain is involved. . . .”
The Court explicitly recognized the breadth of the

principle it was announcing, noting:
“Once the object is within the authority of

Congress, the right to realize it through the
exercise of eminent domain is clear. For the
power of eminent domain is merely the means
to the end. . . . Once the object is within the
authority of Congress, the means by which it
will be attained is also for Congress to
determine. Here one of the means chosen is
the use of private enterprise for
redevelopment of the area. Appellants argue
that this makes the project a taking from one
businessman for the benefit of another
businessman. But the means of executing the
project are for Congress and Congress alone
to determine, once the public purpose has
been established.”
The “public use” requirement is thus coterminous

with the scope of a sovereign’s police powers.
There is, of course, a role for courts to play in

reviewing a legislature’s judgment of what
constitutes a public use, even when the eminent
domain power is equated with the police power.
But the Court in Berman made clear that it is “an
extremely narrow” one. The Court in Berman cited
with approval the Court’s decision in Old
Dominion Co. v. United States (1925), which held
that deference to the legislature’s “public use”
determination is required “until it is shown to
involve an impossibility.” The Berman Court also
cited to United States ex rel. TVA v. Welch (1946),
which emphasized that “[a]ny departure from this
judicial restraint would result in courts deciding
on what is and is not a governmental function and
in their invalidating legislation on the basis of
their view on that question at the moment of
decision, a practice which has proved
impracticable in other fields.” In short, the Court
has made clear that it will not substitute its
judgment for a legislature’s judgment as to what
constitutes a public use “unless the use be
palpably without reasonable foundation.”
To be sure, the Court’s cases have repeatedly

stated that “one person’s property may not be
taken for the benefit of another private person
without a justifying public purpose, even though
compensation be paid.” Thus, in Missouri Pacific
R. Co. v. Nebraska (1896), where the “order in
question was not, and was not claimed to be, . . . a
taking of private property for a public use under
the right of eminent domain,” the Court
invalidated a compensated taking of property for
lack of a justifying public purpose. But where the
exercise of the eminent domain power is rationally
related to a conceivable public purpose, the Court
has never held a compensated taking to be
proscribed by the Public Use Clause.
On this basis, we have no trouble concluding that

the Hawaii Act is constitutional. The people of
Hawaii have attempted, much as the settlers of
the original 13 Colonies did, to reduce the
perceived social and economic evils of a land
oligopoly traceable to their monarchs. The land
oligopoly has, according to the Hawaii Legislature,
created artificial deterrents to the normal
functioning of the State’s residential land market
and forced thousands of individual homeowners to
lease, rather than buy, the land underneath their
homes. Regulating oligopoly and the evils
associated with it is a classic exercise of a State’s
police powers. We cannot disapprove of Hawaii’s
exercise of this power.
Nor can we condemn as irrational the Act’s
approach to correcting the land oligopoly problem.
The Act presumes that when a sufficiently large
number of persons declare that they are willing
but unable to buy lots at fair prices the land
market is malfunctioning. When such a
malfunction is signaled, the Act authorizes HHA to
condemn lots in the relevant tract. The Act limits
the number of lots any one tenant can purchase
and authorizes HHA to use public funds to ensure
that the market dilution goals will be achieved.
This is a comprehensive and rational approach to
identifying and correcting market failure.
Of course, this Act, like any other, may not be

successful in achieving its intended goals. But
“whether in fact the provision will accomplish its
objectives is not the question: the [constitutional
requirement] is satisfied if . . . the . . . [state]
Legislature rationally could have believed that the
[Act] would promote its objective.” When the
legislature’s purpose is legitimate and its means
are not irrational, our cases make clear that
empirical debates over the wisdom of takings—no
less than debates over the wisdom of other kinds
of socioeconomic legislation—are not to be carried
out in the federal courts. Redistribution of fees
simple to correct deficiencies in the market
determined by the state legislature to be
attributable to land oligopoly is a rational exercise
of the eminent domain power. Therefore, the
Hawaii statute must pass the scrutiny of the
Public Use Clause. . . .
The mere fact that property taken outright by

eminent domain is transferred in the first instance
to private beneficiaries does not condemn that
taking as having only a private purpose. The Court
long ago rejected any literal requirement that
condemned property be put into use for the
general public. “It is not essential that the entire
community, nor even any considerable portion, . . .
directly enjoy or participate in any improvement in
order [for it] to constitute a public use.” As the
unique way titles were held in Hawaii skewed the
land market, exercise of the power of eminent
domain was justified. The Act advances its
purposes without the State’s taking actual
possession of the land. In such cases, government
does not itself have to use property to legitimate
the taking, it is only the taking’s purpose, and not
its mechanics, that must pass scrutiny under the
Public Use Clause. . . .
The State of Hawaii has never denied that the

Constitution forbids even a compensated taking of
property when executed for no reason other than
to confer a private benefit on a particular private
party. A purely private taking could not withstand
the scrutiny of the public use requirement; it
would serve no legitimate purpose of government
and would thus be void. But no purely private
taking is involved in these cases. The Hawaii
Legislature enacted its Land Reform Act not to
benefit a particular class of identifiable individuals
but to attack certain perceived evils of
concentrated property ownership in Hawaii—a
legitimate public purpose. Use of the
condemnation power to achieve this purpose is not
irrational. Since we assume for purposes of these
appeals that the weighty demand of just
compensation has been met, the requirements of
the Fifth and Fourteenth Amendments have been
satisfied. Accordingly, we reverse the judgment of
the Court of Appeals, and remand these cases for
further proceedings in conformity with this
opinion.
It is so ordered.
Decisions such as Berman and Midkiff made

important changes in the way the Court dealt with
takings clause appeals. No longer did the justices
independently examine the nature of the public
purpose of the taking. Instead, the Court gave wide
latitude to legislatures to determine what constitutes
public use. To this extent private property rights
became political as well as legal questions,
increasing the power of the legislature at the
expense of traditional property considerations.
These decisions also reduced the extent to which
landowners could use “public use” objections to
thwart the legislative redistribution of wealth and
property for the public good.
The Supreme Court’s announced policy of deferring

to the elected branches on the question of public use
encouraged expanded government use of the power
of eminent domain. Many local governments
aggressively exercised their authority to seize
private property as part of a strategy to improve
their fiscal standing. Assume that a town with a
sagging economy and shrinking revenues is
presented with an opportunity to lure a company to
build a new shopping mall in the community. The
company is willing to consider such an investment
only if it can secure a prime piece of property for the
mall site. When the owner of that land refuses to
sell, the city seizes the property under the power of
eminent domain and sells it to the company for the
price of the compensation the city was required to
pay the landowner. The company is happy with the
parcel of land, and the city is happy because the new
stores will create employment and increased tax
revenues. But is this a proper exercise of the power
of eminent domain? Does it meet the Fifth
Amendment’s public use requirement? Or is it simply
a government-engineered forced transfer of property
from one private party to another?
Such scenarios have not been uncommon, especially

in some of the nation’s older cities, where cash-
starved local governments have used the power of
eminent domain to attempt to improve the declining
economic conditions of their communities. To do so,
a city might have to condemn relatively large
residential tracts—not because they are blighted, but
because the land could be redeveloped with more
valuable properties that would add to the tax base.
Private property owners and groups devoted to their
interests began to organize against such government
actions. It was clear that a major legal confrontation
was inevitable. The Supreme Court tackled the issue
in Kelo v. City of New London (2005), a decision that
resulted in widespread controversy.
Kelo v. City of New London 545 U.S. 469 (2005)
court/545/469.html


Stevens)
4 (O’Connor, Rehnquist, Scalia, Thomas)

Facts:
For decades the city of New London, Connecticut,
had suffered serious economic decline. By 1998
the city’s unemployment rate was double that of
the state, and the population had declined to
24,000, the same number of residents as in 1920.
In response, state and local officials created the
New London Development Corporation (NLDC) to
devise strategies to stimulate the city’s economy.
Efforts to revitalize the city resulted in a tentative
commitment by a drug company, Pfizer, Inc., to
build a $300 million research facility in the city’s
Fort Trumbull area. Officials believed this new
development not only would bring jobs and tax
revenues to the city, but also would spur
additional economic revitalization efforts.
The NLDC developed a master plan for the area
surrounding the proposed Pfizer operation. This
plan, which the city adopted in 2000, called for a
hotel, conference center, museum, restaurants,
shops, office space, marina, river walk, and new
residential housing. To begin the development, the
city had to acquire approximately 115 privately
owned parcels of land. The city successfully
negotiated the purchase of most of the parcels,
but some landowners refused to sell. The city
responded by condemning their properties
through the use of eminent domain.
Nine landowners who were unwilling to sell their

homes filed suit, claiming the city’s actions
violated the Fifth Amendment’s takings clause.
Among them were Susette Kelo, who had bought
her water-view home in 1997 and had spent
considerable time and money renovating it, and
Wilhelmina Dery, who had lived in her Fort
Trumbull home since her birth in 1918. The
properties involved were not blighted or in poor
condition; the city condemned them only because
they stood in the path of the redevelopment plan.
The petitioners claimed that the plan failed to
meet the Fifth Amendment’s public use
requirement. After the Connecticut Supreme
Court ruled in favor of the city, Kelo and the other
petitioners requested review by the U.S. Supreme
Court.
Arguments:
For the petitioners, Susette Kelo et al.:
The use of eminent domain purely for private
business development is not a public use
under the Fifth Amendment.
Allowing increased taxes and jobs to be
considered a public use opens the door to the
seizure of any private property. The distinction
between public and private purposes is erased.
Economic development interests do not justify
using government power forcibly to seize one
person’s property and give it to another private
party.
Unlike seizures for other purposes (to combat a
slum, build a road, etc.) that have clearly
defined standards and geographical limits,
economic development seizures are open-
ended and without natural limits. Any property
can be taken for any purpose.
Economic development seizures usually target
the residential areas of the working and lower
classes.
The home of Susette Kelo is shown here in

February 2005, just four months before the
Supreme Court ruled that the city of New London
could seize it as part of an economic revitalization
program.
AP Photo/Jack Sauer
The construction of the $300 million Pfizer Global

Research and Development headquarters was the
centerpiece of New London’s revitalization
program that culminated in the Supreme Court’s
takings clause ruling in Kelo v. City of New
London (2005).
John Nordell/The Christian Science Monitor
via Getty Images
For the respondents, city of New

London and the New London
Development Corporation:
Combating the deteriorating economic
conditions in New London through this
redevelopment program is a public use.
The Court should continue its policy of
deferring to the political branches of
government to decide what is a public purpose.
The courts are ill suited to make such a
determination.
The primary purpose of the takings clause is
not to limit the use of eminent domain, but to
ensure fair compensation for seized property.
The democratic process provides the electorate
the power to curb abuses of eminent domain.

Court.
Two polar propositions are perfectly clear. On the

one hand, it has long been accepted that the
sovereign may not take the property of A for the
sole purpose of transferring it to another private
party B, even though A is paid just compensation.
On the other hand, it is equally clear that a State
may transfer property from one private party to
another if future “use by the public” is the
purpose of the taking; the condemnation of land
for a railroad with common-carrier duties is a
familiar example. Neither of these propositions,
however, determines the disposition of this case.
As for the first proposition, the City would no

doubt be forbidden from taking petitioners’ land
for the purpose of conferring a private benefit on a
particular private party. . . . Nor would the City be
allowed to take property under the mere pretext
of a public purpose, when its actual purpose was
to bestow a private benefit. The takings before us,
however, would be executed pursuant to a
“carefully considered” development plan. The trial
judge and all the members of the Supreme Court
of Connecticut agreed that there was no evidence
of an illegitimate purpose in this case. Therefore,
as was true of the statute challenged in [Hawaii
Housing Authority v.] Midkiff [1984], the City’s
development plan was not adopted “to benefit a
particular class of identifiable individuals.”
On the other hand, this is not a case in which the

City is planning to open the condemned land—at
least not in its entirety—to use by the general
public. Nor will the private lessees of the land in
any sense be required to operate like common
carriers, making their services available to all
comers. But although such a projected use would
be sufficient to satisfy the public use requirement,
this “Court long ago rejected any literal
requirement that condemned property be put into
use for the general public.” [Midkiff.] Indeed,
while many state courts in the mid-19th century
endorsed “use by the public” as the proper
definition of public use, that narrow view steadily
eroded over time. Not only was the “use by the
public” test difficult to administer (e.g., what
proportion of the public need have access to the
property? at what price?), but it proved to be
impractical given the diverse and always evolving
needs of society. . . .
The disposition of this case therefore turns on the

question whether the City’s development plan
serves a “public purpose.” Without exception, our
cases have defined that concept broadly, reflecting
our longstanding policy of deference to legislative
judgments in this field.
In Berman v. Parker (1954), this Court upheld a

redevelopment plan targeting a blighted area of
Washington, D.C., in which most of the housing for
the area’s 5,000 inhabitants was beyond repair.
Under the plan, the area would be condemned and
part of it utilized for the construction of streets,
schools, and other public facilities. The remainder
of the land would be leased or sold to private
parties for the purpose of redevelopment,
including the construction of low-cost housing. . . .
In Hawaii Housing Authority v. Midkiff (1984), the

Court considered a Hawaii statute whereby fee
title was taken from lessors and transferred to
lessees (for just compensation) in order to reduce
the concentration of land ownership. We
unanimously upheld the statute and rejected the
Ninth Circuit’s view that it was “a naked attempt
on the part of the state of Hawaii to take the
property of A and transfer it to B solely for B’s
private use and benefit.” Reaffirming Berman’s
deferential approach to legislative judgments in
this field, we concluded that the State’s purpose of
eliminating the “social and economic evils of a
land oligopoly” qualified as a valid public use. Our
opinion also rejected the contention that the mere
fact that the State immediately transferred the
properties to private individuals upon
condemnation somehow diminished the public
character of the taking. “[I]t is only the taking’s
purpose, and not its mechanics,” we explained,
that matters in determining public use. . . .
. . . For more than a century, our public use

jurisprudence has wisely eschewed rigid formulas
and intrusive scrutiny in favor of affording
legislatures broad latitude in determining what
public needs justify the use of the takings power.
Those who govern the City were not confronted

with the need to remove blight in the Fort
Trumbull area, but their determination that the
area was sufficiently distressed to justify a
program of economic rejuvenation is entitled to
our deference. The City has carefully formulated
an economic development plan that it believes will
provide appreciable benefits to the community,
including—but by no means limited to—new jobs
and increased tax revenue. As with other exercises
in urban planning and development, the City is
endeavoring to coordinate a variety of
commercial, residential, and recreational uses of
land, with the hope that they will form a whole
greater than the sum of its parts. To effectuate
this plan, the City has invoked a state statute that
specifically authorizes the use of eminent domain
to promote economic development. Given the
comprehensive character of the plan, the thorough
deliberation that preceded its adoption, and the
limited scope of our review, it is appropriate for
us, as it was in Berman, to resolve the challenges
of the individual owners, not on a piecemeal basis,
but rather in light of the entire plan. Because that
plan unquestionably serves a public purpose, the
takings challenged here satisfy the public use
requirement of the Fifth Amendment.
To avoid this result, petitioners urge us to adopt a

new bright-line rule that economic development
does not qualify as a public use. Putting aside the
unpersuasive suggestion that the City’s plan will
provide only purely economic benefits, neither
precedent nor logic supports petitioners’ proposal.
Promoting economic development is a traditional
and long accepted function of government. There
is, moreover, no principled way of distinguishing
economic development from the other public
purposes that we have recognized. . . . “Clearly,
there is no basis for exempting economic
development from our traditionally broad
understanding of public purpose.
Petitioners contend that using eminent domain for

economic development impermissibly blurs the
boundary between public and private takings.
Again, our cases foreclose this objection. Quite
simply, the government’s pursuit of a public
purpose will often benefit individual private
parties . . . “We cannot say that public ownership
is the sole method of promoting the public
purposes of community redevelopment projects.”
It is further argued that without a bright-line rule

nothing would stop a city from transferring citizen
A’s property to citizen B for the sole reason that
citizen B will put the property to a more
productive use and thus pay more taxes. Such a
one-to-one transfer of property, executed outside
the confines of an integrated development plan, is
not presented in this case. While such an unusual
exercise of government power would certainly
raise a suspicion that a private purpose was afoot,
the hypothetical cases posited by petitioners can
be confronted if and when they arise. They do not
warrant the crafting of an artificial restriction on
the concept of public use. . . .
Just as we decline to second-guess the City’s

considered judgments about the efficacy of its
development plan, we also decline to second-guess
the City’s determinations as to what lands it needs
to acquire in order to effectuate the project. “It is
not for the courts to oversee the choice of the
boundary line nor to sit in review on the size of a
particular project area. Once the question of the
public purpose has been decided, the amount and
character of land to be taken for the project and
the need for a particular tract to complete the
integrated plan rests in the discretion of the
legislative branch.”
In affirming the City’s authority to take

petitioners’ properties, we do not minimize the
hardship that condemnations may entail,
notwithstanding the payment of just
compensation. We emphasize that nothing in our
opinion precludes any State from placing further
restrictions on its exercise of the takings power.
Indeed, many States already impose “public use”
requirements that are stricter than the federal
baseline. Some of these requirements have been
established as a matter of state constitutional law,
while others are expressed in state eminent
domain statutes that carefully limit the grounds
upon which takings may be exercised. As the
submissions of the parties and their amici make
clear, the necessity and wisdom of using eminent
domain to promote economic development are
certainly matters of legitimate public debate. This
Court’s authority, however, extends only to
determining whether the City’s proposed
condemnations are for a “public use” within the
meaning of the Fifth Amendment to the Federal
Constitution. Because over a century of our case
law interpreting that provision dictates an
affirmative answer to that question, we may not
grant petitioners the relief that they seek.
The judgment of the Supreme Court of
Connecticut is affirmed.
It is so ordered.
JUSTICE KENNEDY, concurring.

I join the opinion for the Court and add these
further observations.
This Court has declared that a taking should be

upheld as consistent with the Public Use Clause as
long as it is “rationally related to a conceivable
public purpose.” Hawaii Housing Authority v.
Midkiff (1984); see also Berman v. Parker (1954).
This deferential standard of review echoes the
rational-basis test used to review economic
regulation under the Due Process and Equal
Protection Clauses. The determination that a
rational-basis standard of review is appropriate
does not, however, alter the fact that transfers
intended to confer benefits on particular, favored
private entities, and with only incidental or
pretextual public benefits, are forbidden by the
Public Use Clause.
A court applying rational-basis review under the

Public Use Clause should strike down a taking
that, by a clear showing, is intended to favor a
particular private party, with only incidental or
pretextual public benefits. . . .
This is not the occasion for conjecture as to what

sort of cases might justify a more demanding
standard, but it is appropriate to underscore
aspects of the instant case that convince me no
departure from Berman and Midkiff is appropriate
here. This taking occurred in the context of a
comprehensive development plan meant to
address a serious city-wide depression, and the
projected economic benefits of the project cannot
be characterized as de minimus. The identity of
most of the private beneficiaries were unknown at
the time the city formulated its plans. The city
complied with elaborate procedural requirements
that facilitate review of the record and inquiry into
the city’s purposes. In sum, while there may be
categories of cases in which the transfers are so
suspicious, or the procedures employed so prone
to abuse, or the purported benefits are so trivial or
implausible, that courts should presume an
impermissible private purpose, no such
circumstances are present in this case.

whom THE CHIEF JUSTICE,
JUSTICE SCALIA, and JUSTICE
THOMAS join, dissenting.
Over two centuries ago, just after the Bill of
Rights was ratified, Justice Chase wrote:
“An act of the Legislature (for I cannot call it a

law) contrary to the great first principles of
the social compact, cannot be considered a
rightful exercise of legislative authority. . . . A
few instances will suffice to explain what I
mean. . . . [A] law that takes property from A
and gives it to B: It is against all reason and
justice, for a people to entrust a Legislature
with such powers; and, therefore, it cannot be
presumed that they have done it.” Calder v.
Bull (1798).
Today the Court abandons this long-held, basic

limitation on government power. Under the
banner of economic development, all private
property is now vulnerable to being taken and
transferred to another private owner, so long as it
might be upgraded—i.e., given to an owner who
will use it in a way that the legislature deems
more beneficial to the public—in the process. To
reason, as the Court does, that the incidental
public benefits resulting from the subsequent
ordinary use of private property render economic
development takings “for public use” is to wash
out any distinction between private and public use
of property—and thereby effectively to delete the
words “for public use” from the Takings Clause of
the Fifth Amendment. Accordingly I respectfully
dissent. . . .
This case returns us for the first time in over 20

years to the hard question of when a purportedly
“public purpose” taking meets the public use
requirement. It presents an issue of first
impression: Are economic development takings
constitutional? I would hold that they are not. We
are guided by two precedents about the taking of
real property by eminent domain. In Berman, we
upheld takings within a blighted neighborhood of
Washington, D.C. The neighborhood had so
deteriorated that, for example, 64.3% of its
dwellings were beyond repair. It had become
burdened with “overcrowding of dwellings,” “lack
of adequate streets and alleys,” and “lack of light
and air.” Congress had determined that the
neighborhood had become “injurious to the public
health, safety, morals, and welfare” and that it was
necessary to “eliminat[e] all such injurious
conditions by employing all means necessary and
appropriate for the purpose,” including eminent
domain. Mr. Berman’s department store was not
itself blighted. Having approved of Congress’
decision to eliminate the harm to the public
emanating from the blighted neighborhood,
however, we did not second-guess its decision to
treat the neighborhood as a whole rather than lot-
by-lot.
In Midkiff, we upheld a land condemnation scheme

in Hawaii whereby title in real property was taken
from lessors and transferred to lessees. At that
time, the State and Federal Governments owned
nearly 49% of the State’s land, and another 47%
was in the hands of only 72 private landowners.
Concentration of land ownership was so dramatic
that on the State’s most urbanized island, Oahu,
22 landowners owned 72.5% of the fee simple
titles. The Hawaii Legislature had concluded that
the oligopoly in land ownership was “skewing the
State’s residential fee simple market, inflating
land prices, and injuring the public tranquility and
welfare,” and therefore enacted a condemnation
scheme for redistributing title. . . .
The Court’s holdings in Berman and Midkiff were

true to the principle underlying the Public Use
Clause. In both those cases, the extraordinary,
precondemnation use of the targeted property
inflicted affirmative harm on society— in Berman
through blight resulting from extreme poverty and
in Midkiff through oligopoly resulting from
extreme wealth. And in both cases, the relevant
legislative body had found that eliminating the
existing property use was necessary to remedy the
harm. Thus a public purpose was realized when
the harmful use was eliminated. Because each
taking directly achieved a public benefit, it did not
matter that the property was turned over to
private use. Here, in contrast, New London does
not claim that Susette Kelo’s and Wilhelmina
Dery’s well-maintained homes are the source of
any social harm. Indeed, it could not so claim
without adopting the absurd argument that any
single-family home that might be razed to make
way for an apartment building, or any church that
might be replaced with a retail store, or any small
business that might be more lucrative if it were
instead part of a national franchise, is inherently
harmful to society and thus within the
government’s power to condemn.
In moving away from our decisions sanctioning

the condemnation of harmful property use, the
Court today significantly expands the meaning of
public use. It holds that the sovereign may take
private property currently put to ordinary private
use, and give it over for new, ordinary private use,
so long as the new use is predicted to generate
some secondary benefit for the public—such as
increased tax revenue, more jobs, maybe even
aesthetic pleasure. But nearly any lawful use of
real private property can be said to generate some
incidental benefit to the public. Thus, if predicted
(or even guaranteed) positive side-effects are
enough to render transfer from one private party
to another constitutional, then the words “for
public use” do not realistically exclude any
takings, and thus do not exert any constraint on
the eminent domain power. . . .
Finally,. . . the Court suggests that property

owners should turn to the States, who may or may
not choose to impose appropriate limits on
economic development takings. This is an
abdication of our responsibility. States play many
important functions in our system of dual
sovereignty, but compensating for our refusal to
enforce properly the Federal Constitution (and a
provision meant to curtail state action, no less) is
not among them. . . .
Any property may now be taken for the benefit of

another private party, but the fallout from this
decision will not be random. The beneficiaries are
likely to be those citizens with disproportionate
influence and power in the political process,
including large corporations and development
firms. As for the victims, the government now has
license to transfer property from those with fewer
resources to those with more. The Founders
cannot have intended this perverse result.

Today’s decision is simply the latest in a string of
our cases construing the Public Use Clause to be a
virtual nullity, without the slightest nod to its
original meaning. In my view, the Public Use
Clause, originally understood, is a meaningful
limit on the government’s eminent domain power.
...
. . . I would revisit our Public Use Clause cases

and consider returning to the original meaning of
the Public Use Clause: that the government may
take property only if it actually uses or gives the
public a legal right to use the property.
The consequences of today’s decision are not

difficult to predict, and promise to be harmful. So-
called “urban renewal” programs provide some
compensation for the properties they take, but no
compensation is possible for the subjective value
of these lands to the individuals displaced and the
indignity inflicted by uprooting them from their
homes. Allowing the government to take property
solely for public purposes is bad enough, but
extending the concept of public purpose to
encompass any economically beneficial goal
guarantees that these losses will fall
disproportionately on poor communities. Those
communities are not only systematically less likely
to put their lands to the highest and best social
use, but are also the least politically powerful. If
ever there were justification for intrusive judicial
review of constitutional provisions that protect
“discrete and insular minorities,” United States v.
Carolene Products Co. (1938), surely that
principle would apply with great force to the
powerless groups and individuals the Public Use
Clause protects. The deferential standard this
Court has adopted for the Public Use Clause is
therefore deeply perverse. It encourages “those
citizens with disproportionate influence and power
in the political process, including large
corporations and development firms” to victimize
the weak. (O’Connor, J., dissenting). . . .
The Court relies almost exclusively on this Court’s

prior cases to derive today’s far-reaching, and
dangerous, result. But the principles this Court
should employ to dispose of this case are found in
the Public Use Clause itself. . . . When faced with a
clash of constitutional principle and a line of
unreasoned cases wholly divorced from the text,
history, and structure of our founding document,
we should not hesitate to resolve the tension in
favor of the Constitution’s original meaning. For
the reasons I have given, and for the reasons
given in Justice O’Connor’s dissent, the conflict of
principle raised by this boundless use of the
eminent domain power should be resolved in
petitioners’ favor. I would reverse the judgment of
the Connecticut Supreme Court.
Box 11-2 Aftermath . . . Kelo v. City of New

London
THE Kelo decision touched off a storm of protest

by private property rights advocates, and public
opinion ran decidedly against the decision. Taking
the Court’s admonishment that nothing in the
decision prohibits the states from imposing their
own limits, forty-four state legislatures reacted to
the public opposition to Kelo by placing new
restrictions on the use of eminent domain.
Supporters of eminent domain, including the
National League of Cities, countered by
persuading legislators in several states to modify
many of the more extreme anti-Kelo proposals.
Two months after the Kelo decision, its author,

Justice John Paul Stevens, acknowledged that the
ruling was “unwise” and that he would have
opposed it had he been a legislator and not a
federal judge bound by precedent.
Some protests were directed at the justices

themselves. In Weare, New Hampshire, private
property activists secured sufficient petition
signatures to place a proposal on the ballot to
have the town seize the two-hundred-year-old
farmhouse home of Justice David Souter, who
voted with the majority in Kelo. Under the
proposal the property would be turned over to
private investors who would build an inn to be
named the “Lost Liberty Hotel,” featuring the
“Just Desserts Café.” One of the proposal’s
supporters said, “It would be more like a bed and
breakfast. . . . There would be nine suites, with a
black robe in each of the closets.” In March 2006
the Weare voters rejected the proposal 1,167 to
493, endorsing instead a resolution asking the
state legislature to forbid the use of eminent
domain approved in the Kelo decision.
In a related but also unsuccessful effort, members

of the state Libertarian Party urged the city of
Plainfield, New Hampshire, to seize a 167-acre
vacation retreat owned by Justice Stephen Breyer.
In its place they planned to create a “Constitution
Park” including monuments to the U.S. and New
Hampshire Constitutions.
In a reversal of sorts, the city of Hercules,
California, in 2006 used Kelo to stop development.
Wal-Mart Stores, Inc., had purchased a 17-acre
parcel near the town’s waterfront for $15 million,
intending to construct a 140,000-square-foot store
on the property. The city council opposed the
development and voted to seize the land to “ward
off urban blight.” Wal-Mart vowed to take legal
action against this use of eminent domain. In
2009, however, the dispute ended when the city
purchased the property from Wal-Mart for $13.5
million.
New London used its victory in Kelo to continue

its program of redeveloping the Fort Trumbull
neighborhood. Pfizer built a $300 million research
complex that served as the centerpiece for the
project. The condemned houses were torn down,
but the city’s dream that they would be replaced
by new commercial, entertainment, lodging, and
residential facilities did not materialize. In 2009,
to the city’s great disappointment, Pfizer
announced that it would abandon its New London
facility and move its projects and most of its 1,400
jobs to another Pfizer operation in nearby Groton,
Connecticut. The New London research facility
had been in operation only eight years.
As for Susette Kelo, the New London nurse

continued the fight to save her home from
government seizure. She was aided by the
Institute for Justice, a Washington, D.C.,
organization committed to property rights and
other libertarian causes. In the end Kelo was
forced to leave her home; she moved across the
river to Groton. Her little pink house, however,
avoided the city’s wrecking ball. It was
disassembled and moved to another section of
New London, where it was rebuilt. With the
support of private property advocates, it was
named the Kelo House and a monument was
placed outside the home to commemorate the
legal battle against New London’s use of eminent
domain.
Kelo continues to oppose what she considers to be

abuses of the power of eminent domain. “Do I feel
like I won? No, I didn’t win. But other people did
win. They got their properties back. People tell me
all the time about towns that have passed a law
limiting eminent domain,” she explains. “People
have to be continually made aware of how wrong
it was. It’s still wrong today.”
Sources: Valley News, July 28, 2005; Financial

Times, January 26, 2006; New York Times,
February 21, 2006, March 14, 2006, November
12, 2009; Associated Press, March 14, 2006; Los
Angeles Times, May 25, 2006; San Francisco
Chronicle, May 25, 2006, May 30, 2006; Money,
September 2006, August 2012; Contra Costa
Times, April 16, 2009; Norwich Bulletin,
November 9, 2009; The Day, November 11, 2009.
In its takings clause decisions the Court has

consistently favored neither private property
interests nor the government’s power of eminent
domain. With respect to defining a “taking,” the
justices have tended to favor property owners by
expanding the range of government actions that
come under the authority of the Fifth Amendment.11
At the same time, the Court has given broad latitude
to the government to define what constitutes a
“public use.” The Court’s decisions reveal deep
internal divisions between those justices who place
primary value on the rights of individual property
owners and those who accord greater value to the
interests of the larger community.
11 Such expansive views of a taking, however, have

not extended to temporary measures. For example,
in Tahoe-Sierra Preservation Council v. Tahoe
Regional Planning Agency (2002), the Court found
that a temporary moratorium on new construction in
the Lake Tahoe basin while the government
conducted a study of appropriate land-use
regulations did not constitute a taking even when
that moratorium was in effect for over thirty-two
months.
Decisions such as Kelo have turned a once-obscure

constitutional provision into a subject of intense
political controversy (see Box 11-2). Local
governments have increasingly turned to the power
of eminent domain as a method of spurring economic
development and raising tax revenues. With each
such action, groups dedicated to private property
rights have become more organized and politically
active. This political conflict ensures that takings
clause disputes will continue to find their way to the
nation’s courts for some time to come.
Annotated Readings
A number of works have examined the history and
constitutional foundations of private property rights
in America. These include Bruce Ackerman,
Economic Foundations of Property Law (Boston:
Little, Brown, 1975); Bruce Ackerman, Private
Property and the Constitution (New Haven, CT: Yale
University Press, 1977); James W. Ely Jr., The
Guardian of Every Other Right: A Constitutional
History of Property Rights (New York: Oxford
University Press, 1992); Nicholas Mercuro, Taking
Property and Just Compensation (Boston: Kluwer,
1992); Jennifer Nedelsky, Private Property and the
Limits of American Constitutionalism: The
Madisonian Framework and Its Legacy (Chicago:
University of Chicago Press, 1990); Ellen Frankel
Paul, Liberty, Property, and the Foundations of the
American Constitution (Albany: State University of
New York Press, 1988); and David A. Schultz,
Property, Power, and American Democracy (New
Brunswick, NJ: Transaction, 1992).
Other works have specifically focused on the power

of eminent domain and the government’s use of that
authority. Examples are Alan T. Ackerman, Current
Condemnation Law: Takings, Compensation, and
Benefits (Chicago, IL: American Bar Association,
1994); Richard A. Epstein, Takings: Private Property
and the Power of Eminent Domain (Cambridge, MA:
Harvard University Press, 1985); Steven Greenhut,
Abuse of Power: How the Government Misuses
Eminent Domain (Santa Ana, CA: Seven Locks Press,
2004); Robin Paul Malloy, ed., Private Property,
Community Development, and Eminent Domain
(Burlington, VT: Ashgate, 2008); Ellen Frankel Paul,
Property Rights and Eminent Domain (New
Brunswick, NJ: Transaction, 1987); John Ryskamp,
The Eminent Domain Revolt (New York: Algora,
2007); and William B. Stoebuck, Nontrespassory
Takings in Eminent Domain (Charlottesville, VA:
Michie, 1977).
The growing concern over the use of regulation as a

form of property taking is explored in the following
works: Dennis J. Coyle, Property Rights and the
Constitution: Shaping Society through Land Use
Regulation (Albany: State University of New York
Press, 1993); Steven J. Eagle, Regulatory Takings
(Newark, NJ: LexisNexis, 2005); William A. Fischel,
Regulatory Takings: Law, Economics, and Politics
Thomas J. Miceli and Kathleen Segerson,
Compensation for Regulatory Takings (Greenwich,
CT: JAI Press, 1996); and Alfred M. Olivetti, This
Land Is Your Land, This Land Is My Land: The
Property Rights Movement and Regulatory Takings
(New York: LFB Scholarly Publishing, 2003).
Works examining individual cases that have been

significant in developing the Court’s takings clause
jurisprudence are also available. See, for example,
Jeff Benedict, Little Pink House: A True Story of
Defiance and Courage (New York: Grand Central
Publishing, 2009); Guy F. Burnette, The Safeguard of
Liberty and Property: The Supreme Court, Kelo v.
New London, and the Takings Clause (Lanham, MD:
Lexington Books, 2015); Gerald Korngold and
Andrew P. Morriss, eds., Property Stories (New York:
Thomson Reuters/Foundation Press, 2009); Carla T.
Main, Bulldozed: “Kelo,” Eminent Domain, and the
American Lust for Land (New York: Encounter
Books, 2007); Dwight H. Merriam and Mary
Massaron Ross, eds., Eminent Domain Use and
Abuse: Kelo in Context (Chicago: American Bar
Association, 2006); Thomas E. Roberts, ed., Taking
Sides on Takings Issues: The Impact of Tahoe-Sierra
(Chicago, IL: American Bar Association, 2003); David
A. Schultz, Evicted: Property Rights and Eminent
Domain in America (Westport, CT: Praeger, 2009);
and Ilya Somin, The Grasping Hand: Kelo v. City of
New London and the Limits of Eminent Domain
(Chicago, IL: University of Chicago Press, 2015).
Reference Material
Appendixes
1. Constitution of the United States
2. The Justices
3. Glossary
4. Online Case Archive Index
Appendix 1 Constitution of
the United States
WE THE PEOPLE of the United States, in Order to

form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution
for the United States of America.
Article I
Section 1. All legislative Powers herein granted
shall be vested in a Congress of the United States,
which shall consist of a Senate and House of
Representatives.
Section 2. The House of Representatives shall be

composed of Members chosen every second Year by
the People of the several States, and the Electors in
each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State
Legislature.
No Person shall be a Representative who shall not

have attained to the age of twenty five Years, and
been seven Years a Citizen of the United States, and
who shall not, when elected, be an Inhabitant of that
State in which he shall be chosen.
[Representatives and direct Taxes shall be

apportioned among the several States which may be
included within this Union, according to their
respective Numbers, which shall be determined by
adding to the whole Number of free Persons,
including those bound to Service for a Term of Years,
and excluding Indians not taxed, three fifths of all
other Persons.]1 The actual Enumeration shall be
made within three Years after the first Meeting of
the Congress of the United States, and within every
subsequent Term of ten Years, in such Manner as
they shall by Law direct. The Number of
Representatives shall not exceed one for every thirty
Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be
made, the State of New Hampshire shall be entitled
to chuse three, Massachusetts eight, Rhode-Island
and Providence Plantations one, Connecticut five,
New-York six, New Jersey four, Pennsylvania eight,
Delaware one, Maryland six, Virginia ten, North
Carolina five, South Carolina five, and Georgia three.
1 The part in brackets was changed by Section 2 of

the Fourteenth Amendment.
When vacancies happen in the Representation from

any State, the Executive Authority thereof shall issue
Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their
Speaker and other Officers; and shall have the sole
Power of Impeachment.
Section 3. The Senate of the United States shall be

composed of two Senators from each State, [chosen
by the Legislature thereof,]2 for six Years; and each
Senator shall have one Vote.
2 The part in brackets was changed by the first

paragraph of the Seventeenth Amendment.
Immediately after they shall be assembled in

Consequence of the first Election, they shall be
divided as equally as may be into three Classes. The
Seats of the Senators of the first Class shall be
vacated at the Expiration of the second Year, of the
second Class at the Expiration of the fourth Year, and
of the third Class at the Expiration of the sixth Year,
so that one third may be chosen every second Year;
[and if Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of
any State, the Executive thereof may make
temporary Appointments until the next Meeting of
the Legislature, which shall then fill such
Vacancies].3
3 The part in brackets was changed by the second

paragraph of the Seventeenth Amendment.
No Person shall be a Senator who shall not have

attained to the Age of thirty Years, and been nine
Years a Citizen of the United States, and who shall
not, when elected, be an Inhabitant of that State for
which he shall be chosen.
The Vice President of the United States shall be

President of the Senate, but shall have no Vote,
unless they be equally divided.
The Senate shall chuse their other Officers, and also

a President pro tempore, in the Absence of the Vice
President, or when he shall exercise the Office of
President of the United States.
The Senate shall have the sole Power to try all

Impeachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President
of the United States is tried, the Chief Justice shall
preside: And no Person shall be convicted without
the Concurrence of two thirds of the Members
present.
Judgment in Cases of Impeachment shall not extend

further than to removal from Office, and
disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment,
according to Law.
Section 4. The Times, Places and Manner of holding

Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof;
but the Congress may at any time by Law make or
alter such Regulations, except as to the Places of
chusing Senators.
The Congress shall assemble at least once in every

Year, and such Meeting shall [be on the first Monday
in December],4 unless they shall by Law appoint a
different Day.
4 The part in brackets was changed by Section 2 of

the Twentieth Amendment.
Section 5. Each House shall be the Judge of the

Elections, Returns and Qualifications of its own
Members, and a Majority of each shall constitute a
Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to
compel the Attendance of absent Members, in such
Manner, and under such Penalties as each House
may provide.
Each House may determine the Rules of its

Proceedings, punish its Members for disorderly
Behaviour, and, with the Concurrence of two thirds,
expel a Member.
Each House shall keep a Journal of its Proceedings,

and from time to time publish the same, excepting
such Parts as may in their Judgment require
Secrecy; and the Yeas and Nays of the Members of
either House on any question shall, at the Desire of
one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress,
shall, without the Consent of the other, adjourn for
more than three days, nor to any other Place than
that in which the two Houses shall be sitting.
Section 6. The Senators and Representatives shall

receive a Compensation for their Services, to be
ascertained by Law, and paid out of the Treasury of
the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the
Session of their respective Houses, and in going to
and returning from the same; and for any Speech or
Debate in either House, they shall not be questioned
in any other Place.
No Senator or Representative shall, during the Time

for which he was elected, be appointed to any civil
Office under the Authority of the United States,
which shall have been created, or the Emoluments
whereof shall have been encreased during such
time; and no Person holding any Office under the
United States, shall be a Member of either House
during his Continuance in Office.
Section 7. All Bills for raising Revenue shall

originate in the House of Representatives; but the
Senate may propose or concur with Amendments as
on other Bills.
Every Bill which shall have passed the House of

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

Concurrence of the Senate and House of
Representatives may be necessary (except on a
question of Adjournment) shall be presented to the
President of the United States; and before the Same
shall take Effect, shall be approved by him, or being
disapproved by him, shall be repassed by two thirds
of the Senate and House of Representatives,
according to the Rules and Limitations prescribed in
the Case of a Bill.
Section 8. The Congress shall have Power To lay
and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence
and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform
throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and

Tribes;
To establish an uniform Rule of Naturalization, and

uniform Laws on the subject of Bankruptcies
throughout the United States;
To coin Money, regulate the Value thereof, and of

foreign Coin, and fix the Standard of Weights and
Measures;
To provide for the Punishment of counterfeiting the

Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts,

by securing for limited Times to Authors and
Inventors the exclusive Right to their respective
Writings and Discoveries;
To constitute Tribunals inferior to the supreme

Court;
To define and punish Piracies and Felonies
committed on the high Seas, and Offences against
the Law of Nations;
To declare War, grant Letters of Marque and

Reprisal, and make Rules concerning Captures on
Land and Water;
To raise and support Armies, but no Appropriation of

Money to that Use shall be for a longer Term than
two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of

the land and naval Forces;
To provide for calling forth the Militia to execute the

Laws of the Union, suppress Insurrections and repel
Invasions;
To provide for organizing, arming, and disciplining,

the Militia, and for governing such Part of them as
may be employed in the Service of the United States,
reserving to the States respectively, the Appointment
of the Officers, and the Authority of training the
Militia according to the discipline prescribed by
Congress;
To exercise exclusive Legislation in all Cases

whatsoever, over such District (not exceeding ten
Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the
Seat of the Government of the United States, and to
exercise like Authority over all Places purchased by
the Consent of the Legislature of the State in which
the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful
Buildings;—And
To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United States,
or in any Department or Officer thereof.
Section 9. The Migration or Importation of such

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

be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be

passed.
No Capitation, or other direct, Tax shall be laid,

unless in Proportion to the Census or Enumeration
herein before directed to be taken.5
5 The Sixteenth Amendment gave Congress the
power to tax incomes.
No Tax or Duty shall be laid on Articles exported

from any State.
No Preference shall be given by any Regulation of

Commerce or Revenue to the Ports of one State over
those of another; nor shall Vessels bound to, or from,
one State, be obliged to enter, clear, or pay Duties in
another.
No Money shall be drawn from the Treasury, but in

Consequence of Appropriations made by Law; and a
regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published
from time to time.
No Title of Nobility shall be granted by the United

States: And no Person holding any Office of Profit or
Trust under them, shall, without the Consent of the
Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince,
or foreign State.
Section 10. No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of Marque
and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post
facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress,
lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for
executing it’s inspection Laws: and the net Produce
of all Duties and Imposts, laid by any State on
Imports or Exports, shall be for the Use of the
Treasury of the United States; and all such Laws
shall be subject to the Revision and Controul of the
Congress.
No State shall, without the Consent of Congress, lay

any Duty of Tonnage, keep Troops, or Ships of War in
time of Peace, enter into any Agreement or Compact
with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.
Article II
Section 1. The executive Power shall be vested in a
President of the United States of America. He shall
hold his Office during the Term of four Years, and,
together with the Vice President, chosen for the
same Term, be elected, as follows
Each State shall appoint, in such Manner as the

Legislature thereof may direct, a Number of
Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled
in the Congress: but no Senator or Representative,
or Person holding an Office of Trust or Profit under
the United States, shall be appointed an Elector.
[The Electors shall meet in their respective States,

and vote by Ballot for two Persons, of whom one at
least shall not be an Inhabitant of the same State
with themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for
each; which List they shall sign and certify, and
transmit sealed to the Seat of the Government of the
United States, directed to the President of the
Senate. The President of the Senate shall, in the
Presence of the Senate and House of
Representatives, open all the Certificates, and the
Votes shall then be counted. The Person having the
greatest Number of Votes shall be the President, if
such Number be a Majority of the whole Number of
Electors appointed; and if there be more than one
who have such Majority, and have an equal Number
of Votes, then the House of Representatives shall
immediately chuse by Ballot one of them for
President; and if no Person have a Majority, then
from the five highest on the list the said House shall
in like Manner chuse the President. But in chusing
the President, the Votes shall be taken by States, the
Representation from each State having one Vote; A
quorum for this Purpose shall consist of a Member
or Members from two thirds of the States, and a
Majority of all the States shall be necessary to a
Choice. In every Case, after the Choice of the
President, the Person having the greatest Number of
Votes of the Electors shall be the Vice President. But
if there should remain two or more who have equal
Votes, the Senate shall chuse from them by Ballot
the Vice President.]6
6 The material in brackets has been superseded by

the Twelfth Amendment.
The Congress may determine the Time of chusing

the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout
the United States.
No Person except a natural born Citizen, or a Citizen

of the United States, at the time of the Adoption of
this Constitution, shall be eligible to the Office of
President; neither shall any Person be eligible to that
Office who shall not have attained to the Age of
thirty five Years, and been fourteen Years a Resident
within the United States.
In Case of the Removal of the President from Office,

or of his Death, Resignation, or Inability to discharge
the Powers and Duties of the said Office,7 the Same
shall devolve on the Vice President, and the
Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the
President and Vice President, declaring what Officer
shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a
President shall be elected.
7 This provision has been affected by the Twenty-
fifth Amendment.
The President shall, at stated Times, receive for his

Services, a Compensation, which shall neither be
encreased nor diminished during the Period for
which he shall have been elected, and he shall not
receive within that Period any other Emolument
from the United States, or any of them.
Before he enter on the Execution of his Office, he

shall take the following Oath or Affirmation:—“I do
solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect
and defend the Constitution of the United States.”
Section 2. The President shall be Commander in

Chief of the Army and Navy of the United States, and
of the Militia of the several States, when called into
the actual Service of the United States; he may
require the Opinion, in writing, of the principal
Officer in each of the executive Departments, upon
any Subject relating to the Duties of their respective
Offices, and he shall have Power to grant Reprieves
and Pardons for Offences against the United States,
except in Cases of Impeachment.
He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided
two thirds of the Senators present concur; and he
shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United
States, whose Appointments are not herein
otherwise provided for, and which shall be
established by Law: but the Congress may by Law
vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all

Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire
at the End of their next Session.
Section 3. He shall from time to time give to the

Congress Information of the State of the Union, and
recommend to their Consideration such Measures as
he shall judge necessary and expedient; he may, on
extraordinary Occasions, convene both Houses, or
either of them, and in Case of Disagreement
between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as
he shall think proper; he shall receive Ambassadors
and other public Ministers; he shall take Care that
the Laws be faithfully executed, and shall
Commission all the Officers of the United States.
Section 4. The President, Vice President and all civil

Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and
Misdemeanors.
Article III
Section 1. The judicial Power of the United States,
shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices
during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which
shall not be diminished during their Continuance in
Office.
Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their
Authority;—to all Cases affecting Ambassadors,
other public Ministers and Consuls;—to all Cases of
admiralty and maritime Jurisdiction;—to
Controversies to which the United States shall be a
Party;—to Controversies between two or more
States;—between a State and Citizens of another
State;8—between Citizens of different States;—
between Citizens of the same State claiming Lands
under Grants of different States, and between a
State, or the Citizens thereof, and foreign States,
Citizens or Subjects.8
8 These clauses were affected by the Eleventh
Amendment.
In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State
shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury; and such Trial shall
be held in the State where the said Crimes shall
have been committed; but when not committed
within any State, the Trial shall be at such Place or
Places as the Congress may by Law have directed.
Section 3. Treason against the United States, shall

consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the

Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
Article IV
Section 1. Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress
may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved,
and the Effect thereof.
Section 2. The Citizens of each State shall be

entitled to all Privileges and Immunities of Citizens
in the several States.
A Person charged in any State with Treason, Felony,

or other Crime, who shall flee from Justice, and be
found in another State, shall on Demand of the
executive Authority of the State from which he fled,
be delivered up, to be removed to the State having
Jurisdiction of the Crime.
[No Person held to Service or Labour in one State,

under the Laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein, be
discharged from such Service or Labour, but shall be
delivered up on Claim of the Party to whom such
Service or Labour may be due.]9
9 This paragraph has been superseded by the

Thirteenth Amendment.
Section 3. New States may be admitted by the

Congress into this Union; but no new State shall be
formed or erected within the Jurisdiction of any
other State; nor any State be formed by the Junction
of two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned
as well as of the Congress.
The Congress shall have Power to dispose of and

make all needful Rules and Regulations respecting
the Territory or other Property belonging to the
United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the
United States, or of any particular State.
Section 4. The United States shall guarantee to

every State in this Union a Republican Form of
Government, and shall protect each of them against
Invasion; and on Application of the Legislature, or of
the Executive (when the Legislature cannot be
convened) against domestic Violence.
Article V
The Congress, whenever two thirds of both Houses
shall deem it necessary, shall propose Amendments
to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall
call a Convention for proposing Amendments, which,
in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified
by the Legislatures of three fourths of the several
States, or by Conventions in three fourths thereof, as
the one or the other Mode of Ratification may be
proposed by the Congress; Provided [that no
Amendment which may be made prior to the Year
One thousand eight hundred and eight shall in any
Manner affect the first and fourth Clauses in the
Ninth Section of the first Article; and]10 that no
State, without its Consent, shall be deprived of its
equal Suffrage in the Senate.
10 Obsolete.
Article VI
All Debts contracted and Engagements entered into,
before the Adoption of this Constitution, shall be as
valid against the United States under this
Constitution, as under the Confederation.
This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned,

and the Members of the several State Legislatures,
and all executive and judicial Officers, both of the
United States and of the several States, shall be
bound by Oath or Affirmation, to support this
Constitution; but no religious Test shall ever be
required as a Qualification to any Office or public
Trust under the United States.
Article VII
The Ratification of the Conventions of nine States,
shall be sufficient for the Establishment of this
Constitution between the States so ratifying the
Same. Done in Convention by the Unanimous
Consent of the States present the Seventeenth Day
of September in the Year of our Lord one thousand
seven hundred and Eighty seven and of the
Independence of the United States of America the
Twelfth. IN WITNESS whereof We have hereunto
subscribed our Names,
George Washington,
President and deputy from Virginia.
New Hampshire: John Langdon,

Nicholas Gilman.
Massachusetts: Nathaniel Gorham,
Rufus King.
Connecticut: William Samuel Johnson,
Roger Sherman.
New York: Alexander Hamilton.
New Jersey: William Livingston,
David Brearley,
William Paterson,
Jonathan Dayton.
Pennsylvania: Benjamin Franklin,
Thomas Mifflin,
Robert Morris,
George Clymer,
Thomas FitzSimons,
Jared Ingersoll,
James Wilson,
Gouverneur Morris.
Delaware: George Read,
Gunning Bedford Jr.,
John Dickinson,
Richard Bassett,
Jacob Broom.
Maryland: James McHenry,
Daniel of St. Thomas Jenifer,
Daniel Carroll.
Virginia: John Blair,
James Madison Jr.
North Carolina: William Blount,
Richard Dobbs Spaight,
Hugh Williamson.
South Carolina: John Rutledge,
Charles Cotesworth Pinckney,
Charles Pinckney,
Pierce Butler.
Georgia: William Few,
Abraham Baldwin.
[The language of the original Constitution, not

including the Amendments, was adopted by a
convention of the states on September 17, 1787, and
was subsequently ratified by the states on the
following dates: Delaware, December 7, 1787;
Pennsylvania, December 12, 1787; New Jersey,
December 18, 1787; Georgia, January 2, 1788;
Connecticut, January 9, 1788; Massachusetts,
February 6, 1788; Maryland, April 28, 1788; South
Carolina, May 23, 1788; New Hampshire, June 21,
1788.
Ratification was completed on June 21, 1788.
The Constitution subsequently was ratified by

Virginia, June 25, 1788; New York, July 26, 1788;
North Carolina, November 21, 1789; Rhode Island,
May 29, 1790; and Vermont, January 10, 1791.]
Amendments
Amendment I
(First ten amendments ratified December 15, 1791.)
Congress shall make no law respecting an

establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a
redress of grievances.
Amendment II
A well regulated Militia, being necessary to the
security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
Amendment III
No Soldier shall, in time of peace be quartered in
any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
Amendment V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use, without just
compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be
confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his
defence.
Amendment VII
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of the
common law.
Amendment VIII
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.
Amendment IX
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage
others retained by the people.
Amendment X
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the
people.
Amendment XI
(Ratified February 7, 1795)
The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
Amendment XII
(Ratified June 15, 1804)
The Electors shall meet in their respective states and
vote by ballot for President and Vice-President, one
of whom, at least, shall not be an inhabitant of the
same state with themselves; they shall name in their
ballots the person voted for as President, and in
distinct ballots the person voted for as Vice-
President, and they shall make distinct lists of all
persons voted for as President, and of all persons
voted for as Vice-President, and of the number of
votes for each, which lists they shall sign and certify,
and transmit sealed to the seat of the government of
the United States, directed to the President of the
Senate;—The President of the Senate shall, in the
presence of the Senate and House of
Representatives, open all the certificates and the
votes shall then be counted;—The person having the
greatest number of votes for President, shall be the
President, if such number be a majority of the whole
number of Electors appointed; and if no person have
such majority, then from the persons having the
highest numbers not exceeding three on the list of
those voted for as President, the House of
Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the
votes shall be taken by states, the representation
from each state having one vote; a quorum for this
purpose shall consist of a member or members from
two-thirds of the states, and a majority of all the
states shall be necessary to a choice. [And if the
House of Representatives shall not choose a
President whenever the right of choice shall devolve
upon them, before the fourth day of March next
following, then the Vice-President shall act as
President, as in the case of the death or other
constitutional disability of the President.]11 The
person having the greatest number of votes as Vice-
President, shall be the Vice-President, if such
number be a majority of the whole number of
Electors appointed, and if no person have a majority,
then from the two highest numbers on the list, the
Senate shall choose the Vice-President; a quorum for
the purpose shall consist of two-thirds of the whole
number of Senators, and a majority of the whole
number shall be necessary to a choice. But no
person constitutionally ineligible to the office of
President shall be eligible to that of Vice-President of
the United States.
11 The part in brackets has been superseded by

Section 3 of the Twentieth Amendment.
Amendment XIII
(Ratified December 6, 1865)
Section 1. Neither slavery nor involuntary

servitude, except as a punishment for crime whereof
the party shall have been duly convicted, shall exist
within the United States, or any place subject to
their jurisdiction.
Section 2. Congress shall have power to enforce

this article by appropriate legislation.
Amendment XIV
(Ratified July 9, 1868)
Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of
the laws.
Section 2. Representatives shall be apportioned

among the several States according to their
respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the
choice of electors for President and Vice President of
the United States, Representatives in Congress, the
Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any
of the male inhabitants of such State, being twenty-
one years of age,12 and citizens of the United States,
or in any way abridged, except for participation in
rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in
such State.
12 See the Nineteenth and Twenty-sixth

Amendments.
Section 3. No person shall be a Senator or

Representative in Congress, or elector of President
and Vice President, or hold any office, civil or
military, under the United States, or under any State,
who, having previously taken an oath, as a member
of Congress, or as an officer of the United States, or
as a member of any State legislature, or as an
executive or judicial officer of any State, to support
the Constitution of the United States, shall have
engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof.
But Congress may by a vote of two-thirds of each
House, remove such disability.
Section 4. The validity of the public debt of the

United States, authorized by law, including debts
incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United
States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss
or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to
enforce, by appropriate legislation, the provisions of
this article.
Amendment XV
Section 1. The right of citizens of the United States

to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or
previous condition of servitude.

enforce this article by appropriate legislation.
Amendment XVI
The Congress shall have power to lay and collect

taxes on incomes, from whatever source derived,
without apportionment among the several States,
and without regard to any census or enumeration.
Amendment XVII
(Ratified April 8, 1913)
The Senate of the United States shall be composed

of two Senators from each State, elected by the
people thereof, for six years; and each Senator shall
have one vote. The electors in each State shall have
the qualifications requisite for electors of the most
numerous branch of the State legislatures.
When vacancies happen in the representation of any

State in the Senate, the executive authority of such
State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any
State may empower the executive thereof to make
temporary appointments until the people fill the
vacancies by election as the legislature may direct.
This amendment shall not be so construed as to

affect the election or term of any Senator chosen
before it becomes valid as part of the Constitution.
Amendment XVIII
(Ratified January 16, 1919)
Section 1. After one year from the ratification of

this article the manufacture, sale, or transportation
of intoxicating liquors within, the importation
thereof into, or the exportation thereof from the
United States and all territory subject to the
jurisdiction thereof for beverage purposes is hereby
prohibited.
Section 2. The Congress and the several States

shall have concurrent power to enforce this article
by appropriate legislation.
Section 3. This article shall be inoperative unless it
shall have been ratified as an amendment to the
Constitution by the legislatures of the several States,
as provided in the Constitution, within seven years
from the date of the submission hereof to the States
by the Congress.13
13 This Amendment was repealed by Section 1 of the

Twenty-first Amendment.
Amendment XIX
(Ratified August 18, 1920)
The right of citizens of the United States to vote

shall not be denied or abridged by the United States
or by any State on account of sex.
Congress shall have power to enforce this article by

appropriate legislation.
Amendment XX
Section 1. The terms of the President and Vice

President shall end at noon on the 20th day of
January, and the terms of Senators and
Representatives at noon on the 3d day of January, of
the years in which such terms would have ended if
this article had not been ratified; and the terms of
their successors shall then begin.
Section 2. The Congress shall assemble at least

once in every year, and such meeting shall begin at
noon on the 3d day of January, unless they shall by
law appoint a different day.
Section 3.14 If, at the time fixed for the beginning of

the term of the President, the President elect shall
have died, the Vice President elect shall become
President. If a President shall not have been chosen
before the time fixed for the beginning of his term,
or if the President elect shall have failed to qualify,
then the Vice President elect shall act as President
until a President shall have qualified; and the
Congress may by law provide for the case wherein
neither a President elect nor a Vice President elect
shall have qualified, declaring who shall then act as
President, or the manner in which one who is to act
shall be selected, and such person shall act
accordingly until a President or Vice President shall
have qualified.
14 See the Twenty-fifth Amendment.
Section 4. The Congress may by law provide for the

case of the death of any of the persons from whom
the House of Representatives may choose a
President whenever the right of choice shall have
devolved upon them, and for the case of the death of
any of the persons from whom the Senate may
choose a Vice President whenever the right of choice
shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the

15th day of October following the ratification of this
article.

Constitution by the legislatures of three-fourths of
the several States within seven years from the date
of its submission.
Amendment XXI
(Ratified December 5, 1933)
Section 1. The eighteenth article of amendment to

the Constitution of the United States is hereby
repealed.
Section 2. The transportation or importation into

any State, Territory, or possession of the United
States for delivery or use therein of intoxicating
liquors, in violation of the laws thereof, is hereby
prohibited.

Constitution by conventions in the several States, as
provided in the Constitution, within seven years from
the date of the submission hereof to the States by
the Congress.
Amendment XXII
Section 1. No person shall be elected to the office of

the President more than twice, and no person who
has held the office of President, or acted as
President, for more than two years of a term to
which some other person was elected President shall
be elected to the office of the President more than
once. But this Article shall not apply to any person
holding the office of President when this Article was
proposed by the Congress, and shall not prevent any
person who may be holding the office of President,
or acting as President, during the term within which
this Article become operative from holding the office
of President or acting as President during the
remainder of such term.

Constitution by the legislatures of three-fourths of
the several States within seven years from the date
of its submission to the States by the Congress.
Amendment XXIII
(Ratified March 29, 1961)
Section 1. The District constituting the seat of
Government of the United States shall appoint in
such manner as the Congress may direct:
A number of electors of President and Vice President

equal to the whole number of Senators and
Representatives in Congress to which the District
would be entitled if it were a State, but in no event
more than the least populous State; they shall be in
addition to those appointed by the States, but they
shall be considered, for the purposes of the election
of President and Vice President, to be electors
appointed by a State; and they shall meet in the
District and perform such duties as provided by the
twelfth article of amendment.

Amendment XXIV
Section 1. The right of citizens of the United States

to vote in any primary or other election for President
or Vice President, for electors for President or Vice
President, or for Senator or Representative in
Congress, shall not be denied or abridged by the
United States or any State by reason of failure to pay
any poll tax or other tax.
Amendment XXV
Section 1. In case of the removal of the President

from office or of his death or resignation, the Vice
President shall become President.
Section 2. Whenever there is a vacancy in the office

of the Vice President, the President shall nominate a
Vice President who shall take office upon
confirmation by a majority vote of both Houses of
Congress.
Section 3. Whenever the President transmits to the

President pro tempore of the Senate and the
Speaker of the House of Representatives his written
declaration that he is unable to discharge the
powers and duties of his office, and until he
transmits to them a written declaration to the
contrary, such powers and duties shall be discharged
by the Vice President as Acting President.
Section 4. Whenever the Vice President and a

majority of either the principal officers of the
executive departments or of such other body as
Congress may by law provide, transmit to the
Speaker of the House of Representatives their
written declaration that the President is unable to
discharge the powers and duties of his office, the
Vice President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the

Speaker of the House of Representatives his written
declaration that no inability exists, he shall resume
the powers and duties of his office unless the Vice
President and a majority of either the principal
officers of the executive department or of such other
body as Congress may by law provide, transmit
within four days to the President pro tempore of the
Senate and the Speaker of the House of
Representatives their written declaration that the
President is unable to discharge the powers and
duties of his office. Thereupon Congress shall decide
the issue, assembling within forty-eight hours for
that purpose if not in session. If the Congress, within
twenty-one days after receipt of the latter written
declaration, or, if Congress is not in session, within
twenty-one days after Congress is required to
assemble, determines by two-thirds vote of both
Houses that the President is unable to discharge the
powers and duties of his office, the Vice President
shall continue to discharge the same as Acting
President; otherwise, the President shall resume the
powers and duties of his office.
Amendment XXVI
(Ratified July 1, 1971)
Section 1. The right of citizens of the United States,

who are eighteen years of age or older, to vote shall
not be denied or abridged by the United States or by
any State on account of age.

Amendment XXVII
(Ratified May 7, 1992)
No law varying the compensation for the services of

the Senators and Representatives shall take effect,
until an election of Representatives shall have
intervened.
Source: United States Government Manual, 1993–

94 (Washington, DC: Government Printing Office,
1993), 5–20.
Appendix 2 The Justices
The justices of the Supreme Court are listed below

in alphabetical order, each with birth and death
years, state from which he or she was appointed,
political party affiliation at time of appointment,
educational institutions attended, appointing
president, confirmation date and vote, date of
service termination, and major pre-appointment
offices and activities.
Alito, Samuel A., Jr. (1950–). New Jersey.

Republican. Princeton, Yale. Nominated associate
justice by George W. Bush; confirmed 2006 by 58–42
vote. U.S. attorney for New Jersey, federal appeals
court judge.
Baldwin, Henry (1780–1844). Pennsylvania.

Democrat. Yale. Nominated associate justice by
Andrew Jackson; confirmed 1830 by 41–2 vote; died
in office 1844. U.S. representative.
Barbour, Philip Pendleton (1783–1841). Virginia.

Democrat. College of William and Mary. Nominated
associate justice by Andrew Jackson; confirmed 1836
by 30–11 vote; died in office 1841. Virginia state
legislator, U.S. representative, U.S. Speaker of the
House, state court judge, federal district court
judge.
Black, Hugo Lafayette (1886–1971). Alabama.
Democrat. Birmingham Medical College, University
of Alabama. Nominated associate justice by Franklin
Roosevelt; confirmed 1937 by 63–16 vote; retired
1971. Alabama police court judge, county solicitor,
U.S. senator.
Blackmun, Harry Andrew (1908–1999).

Minnesota. Republican. Harvard. Nominated
associate justice by Richard Nixon; confirmed 1970
by 94–0 vote; retired 1994. Federal appeals court
judge.
Blair, John, Jr. (1732–1800). Virginia. Federalist.

College of William and Mary; Middle Temple
(England). Nominated associate justice by George
Washington; confirmed 1789 by voice vote; resigned
1796. Virginia legislator, state court judge, delegate
to Constitutional Convention.
Blatchford, Samuel (1820–1893). New York.

Republican. Columbia. Nominated associate justice
by Chester A. Arthur; confirmed 1882 by voice vote;
died in office 1893. Federal district court judge,
federal circuit court judge.
Bradley, Joseph P. (1813–1892). New Jersey.

Republican. Rutgers. Nominated associate justice by
Ulysses S. Grant; confirmed 1870 by 46–9 vote; died
in office 1892. Private practice.
Brandeis, Louis Dembitz (1856–1941).
Massachusetts. Republican. Harvard. Nominated
associate justice by Woodrow Wilson; confirmed
1916 by 47–22 vote; retired 1939. Private practice.
Brennan, William Joseph, Jr. (1906–1997). New

Jersey. Democrat. University of Pennsylvania,
Harvard. Received recess appointment from Dwight
Eisenhower to be associate justice 1956; confirmed
1957 by voice vote; retired 1990. New Jersey
Supreme Court.
Brewer, David Josiah (1837–1910). Kansas.

Republican. Wesleyan, Yale, Albany Law School.
Nominated associate justice by Benjamin Harrison;
confirmed 1889 by 53–11 vote; died in office 1910.
Kansas state court judge, federal circuit court judge.
Breyer, Stephen G. (1938–). Massachusetts.

Democrat. Stanford, Oxford, Harvard. Nominated
associate justice by William Clinton; confirmed 1994
by 87–9 vote. Law professor; chief counsel, Senate
Judiciary Committee; federal appeals court judge.
Brown, Henry B. (1836–1913). Michigan.

Republican. Yale, Harvard. Nominated associate
justice by Benjamin Harrison; confirmed 1890 by
voice vote; retired 1906. Michigan state court judge,
federal district court judge.
Burger, Warren Earl (1907–1995). Virginia.

Republican. University of Minnesota, St. Paul
College of Law. Nominated chief justice by Richard
Nixon; confirmed 1969 by 74–3 vote; retired 1986.
Assistant U.S. attorney general, federal appeals
court judge.
Burton, Harold Hitz (1888–1964). Ohio.

Republican. Bowdoin College, Harvard. Nominated
associate justice by Harry Truman; confirmed 1945
by voice vote; retired 1958. Ohio state legislator,
mayor of Cleveland, U.S. senator.
Butler, Pierce (1866–1939). Minnesota. Democrat.

Carleton College. Nominated associate justice by
Warren G. Harding; confirmed 1922 by 61–8 vote;
died in office 1939. Minnesota county attorney,
private practice.
Byrnes, James Francis (1879–1972). South

Carolina. Democrat. Privately educated. Nominated
associate justice by Franklin Roosevelt; confirmed
1941 by voice vote; resigned 1942. South Carolina
local solicitor, U.S. representative, U.S. senator.
Campbell, John Archibald (1811–1889). Alabama.

Democrat. Franklin College (University of Georgia),
U.S. Military Academy. Nominated associate justice
by Franklin Pierce; confirmed 1853 by voice vote;
resigned 1861. Alabama state legislator.
Cardozo, Benjamin Nathan (1870–1938). New

York. Democrat. Columbia. Nominated associate
justice by Herbert Hoover; confirmed 1932 by voice
vote; died in office 1938. State court judge.
Catron, John (1786–1865). Tennessee. Democrat.

Self-educated. Nominated associate justice by
Andrew Jackson; confirmed 1837 by 28–15 vote; died
in office 1865. Tennessee state court judge, state
chief justice.
Chase, Salmon Portland (1808–1873). Ohio.

Republican. Dartmouth. Nominated chief justice by
Abraham Lincoln; confirmed 1864 by voice vote;
died in office 1873. U.S. senator, Ohio governor, U.S.
secretary of the Treasury.
Chase, Samuel (1741–1811). Maryland. Federalist.

Privately educated. Nominated associate justice by
George Washington; confirmed 1796 by voice vote;
died in office 1811. Maryland state legislator,
delegate to Continental Congress, state court judge.
Clark, Tom Campbell (1899–1977). Texas.

Democrat. University of Texas. Nominated associate
justice by Harry Truman; confirmed 1949 by 73–8
vote; retired 1967. Texas local district attorney, U.S.
attorney general.
Clarke, John Hessin (1857–1945). Ohio. Democrat.

Western Reserve University. Nominated associate
justice by Woodrow Wilson; confirmed 1916 by voice
vote; resigned 1922. Federal district judge.
Clifford, Nathan (1803–1881). Maine. Democrat.
James Buchanan; confirmed 1858 by 26–23 vote;
died in office 1881. Maine state legislator, state
attorney general, U.S. representative, U.S. attorney
general, minister to Mexico.
Curtis, Benjamin Robbins (1809–1874).

Massachusetts. Whig. Harvard. Nominated associate
justice by Millard Fillmore; confirmed 1851 by voice
vote; resigned 1857. Massachusetts state legislator.
Cushing, William (1732–1810). Massachusetts.

Federalist. Harvard. Nominated associate justice by
died in office 1810. Massachusetts state court judge,
Electoral College delegate.
Daniel, Peter Vivian (1784–1860). Virginia.

Democrat. Princeton. Nominated associate justice by
Martin Van Buren; confirmed 1841 by 22–5 vote;
died in office 1860. Virginia state legislator, state
Privy Council member, federal district court judge.
Davis, David (1815–1886). Illinois. Republican.

Kenyon College, Yale. Nominated associate justice by
Abraham Lincoln; confirmed 1862 by voice vote;
resigned 1877. Illinois state legislator, state court
judge.
Day, William Rufus (1849–1923). Ohio. Republican.

University of Michigan. Nominated associate justice
by Theodore Roosevelt; confirmed 1903 by voice
vote; resigned 1922. Ohio state court judge, U.S.
secretary of state, federal appeals court judge.
Douglas, William Orville (1898–1980).

Connecticut. Democrat. Whitman College, Columbia.
Nominated associate justice by Franklin Roosevelt;
confirmed 1939 by 62–4 vote; retired 1975. Law
professor, Securities and Exchange Commission
chair.
Duvall, Gabriel (1752–1844). Maryland.

Democratic-Republican. Privately educated.
Nominated associate justice by James Madison;
confirmed 1811 by voice vote; resigned 1835.
Maryland state legislator, U.S. representative, state
court judge, presidential elector, comptroller of the
U.S. Treasury.
Ellsworth, Oliver (1745–1807). Connecticut.

Federalist. Princeton. Nominated chief justice by
George Washington; confirmed 1796 by 21–1 vote;
resigned 1800. Connecticut state legislator, delegate
to Continental Congress and Constitutional
Convention, state court judge, U.S. senator.
Field, Stephen J. (1816–1899). California.

Democrat. Williams College. Nominated associate
justice by Abraham Lincoln; confirmed 1863 by voice
vote; retired 1897. California state legislator,
California Supreme Court justice.
Fortas, Abe (1910–1982). Tennessee. Democrat.
Southwestern College, Yale. Nominated associate
justice by Lyndon Johnson; confirmed 1965 by voice
vote; resigned 1969. Counsel for numerous federal
agencies, private practice.
Frankfurter, Felix (1882–1965). Massachusetts.

Independent. College of the City of New York,
Harvard. Nominated associate justice by Franklin
Roosevelt; confirmed 1939 by voice vote; retired
1962. Law professor, War Department law officer,
assistant to secretary of war, assistant to secretary
of labor, War Labor Policies Board chair.
Fuller, Melville Weston (1833–1910). Illinois.

Democrat. Bowdoin College, Harvard. Nominated
chief justice by Grover Cleveland; confirmed 1888 by
41–20 vote; died in office 1910. Illinois state
legislator.
Ginsburg, Ruth Bader (1933–). New York.

Democrat. Cornell, Harvard, Columbia. Nominated
associate justice by Bill Clinton; confirmed 1993 by
96–3 vote. Law professor, federal appeals court
judge.
Goldberg, Arthur J. (1908–1990). Illinois.

Democrat. DePaul, Northwestern. Nominated
associate justice by John Kennedy; confirmed 1962
by voice vote; resigned 1965. Secretary of labor.
Gorsuch, Neil (1967–). Colorado. Republican.
Columbia, Harvard. Nominated associate justice by
Donald Trump; confirmed 2017 by 54–45 vote.
Federal appeals court judge.
Gray, Horace (1828–1902). Massachusetts.

Republican. Harvard. Nominated associate justice by
Chester A. Arthur; confirmed 1881 by 51–5 vote;
died in office 1902. Massachusetts Supreme Judicial
Court justice.
Grier, Robert Cooper (1794–1870). Pennsylvania.

Democrat. Dickinson College. Nominated associate
justice by James Polk; confirmed 1846 by voice vote;
retired 1870. Pennsylvania state court judge.
Harlan, John Marshall (1833–1911). Kentucky.

Republican. Centre College, Transylvania University.
Nominated associate justice by Rutherford B. Hayes;
confirmed 1877 by voice vote; died in office 1911.
Kentucky attorney general.
Harlan, John Marshall (1899–1971). New York.

Republican. Princeton, Oxford, New York Law
School. Nominated associate justice by Dwight
Eisenhower; confirmed 1955 by 71–11 vote; retired
1971. Chief counsel for New York State Crime
Commission, federal appeals court judge.
Holmes, Oliver Wendell, Jr. (1841–1935).

associate justice by Theodore Roosevelt; confirmed
1902 by voice vote; retired 1932. Law professor;
Massachusetts Supreme Judicial Court justice.
Hughes, Charles Evans (1862–1948). New York.

Republican. Colgate, Brown, Columbia. Nominated
associate justice by William Howard Taft; confirmed
1910 by voice vote; resigned 1916; nominated chief
justice by Herbert Hoover; confirmed 1930 by 52–26
vote; retired 1941. New York governor, U.S.
secretary of state, Court of International Justice
judge.
Hunt, Ward (1810–1886). New York. Republican.

Union College. Nominated associate justice by
Ulysses S. Grant; confirmed 1872 by voice vote;
retired 1882. New York state legislator, mayor of
Utica, state court judge.
Iredell, James (1751–1799). North Carolina.

Federalist. English schools. Nominated associate
justice by George Washington; confirmed 1790 by
voice vote; died in office 1799. Customs official, state
court judge, state attorney general.
Jackson, Howell Edmunds (1832–1895).

Tennessee. Democrat. West Tennessee College,
University of Virginia, Cumberland University.
Nominated associate justice by Benjamin Harrison;
Tennessee state legislator, U.S. senator, federal
circuit court judge, federal appeals court judge.
Jackson, Robert Houghwout (1892–1954). New
York. Democrat. Albany Law School. Nominated
1941 by voice vote; died in office 1954. Counsel for
Internal Revenue Bureau and Securities and
Exchange Commission, U.S. solicitor general, U.S.
attorney general.
Jay, John (1745–1829). New York. Federalist. King’s

College (Columbia University). Nominated chief
voice vote; resigned 1795. Delegate to Continental
Congress, chief justice of New York, minister to
Spain and Great Britain, secretary of foreign affairs.
Johnson, Thomas (1732–1819). Maryland.

Federalist. Privately educated. Nominated associate
voice vote; resigned 1793. Delegate to Annapolis
Convention and Continental Congress; Maryland
governor, state legislator, state court judge.
Johnson, William (1771–1834). South Carolina.

Democratic-Republican. Princeton. Nominated
associate justice by Thomas Jefferson; confirmed
1804 by voice vote; died in office 1834. South
Carolina state legislator, state court judge.
Kagan, Elena (1960–). Massachusetts. Democrat.

Princeton, Oxford, Harvard. Nominated associate
justice by Barack Obama; confirmed 2010 by 63–37
vote. Law professor and dean, U.S. solicitor general.
Kavanaugh, Brett M. (1965–). District of Columbia.
Republican. Yale. Nominated associate justice by
Donald Trump; confirmed 2018 by 50–48 vote.
Kennedy, Anthony McLeod (1936–). California.

Republican. Stanford, London School of Economics,
Harvard. Nominated associate justice by Ronald
Reagan; confirmed 1988 by 97–0 vote; retired 2018.
Lamar, Joseph Rucker (1857–1916). Georgia.

Democrat. University of Georgia, Bethany College,
Washington and Lee. Nominated associate justice by
William Howard Taft; confirmed 1910 by voice vote;
died in office 1916. Georgia state legislator, Georgia
Supreme Court justice.
Lamar, Lucius Quintus Cincinnatus (1825–1893).

Mississippi. Democrat. Emory College. Nominated
associate justice by Grover Cleveland; confirmed
1888 by 32–28 vote; died in office 1893. Georgia
state legislator, U.S. representative, U.S. senator,
U.S. secretary of the interior.
Livingston, Henry Brockholst (1757–1823). New

York. Democratic-Republican. Princeton. Nominated
associate justice by Thomas Jefferson; confirmed
1806 by voice vote; died in office 1823. New York
state legislator, state court judge.
Lurton, Horace Harmon (1844–1914). Tennessee.
Democrat. University of Chicago, Cumberland.
Nominated associate justice by William Howard Taft;
Tennessee Supreme Court justice, federal appeals
court judge.
Marshall, John (1755–1835). Virginia. Federalist.

Privately educated, College of William and Mary.
Nominated chief justice by John Adams; confirmed
1801 by voice vote; died in office 1835. Virginia state
legislator, minister to France, U.S. representative,
U.S. secretary of state.
Marshall, Thurgood (1908–1993). New York.

Democrat. Lincoln University, Howard University.
Nominated associate justice by Lyndon Johnson;
confirmed 1967 by 69–11 vote; retired 1991. Chief
counsel for NAACP Legal Defense Fund, federal
appeals court judge, U.S. solicitor general.
Matthews, Stanley (1824–1889). Ohio. Republican.

Kenyon College. Nominated associate justice by
Rutherford B. Hayes; no Senate action on
nomination; renominated associate justice by James
A. Garfield; confirmed 1881 by 24–23 vote; died in
office 1889. Ohio state legislator, state court judge,
U.S. attorney for southern Ohio, U.S. senator.
McKenna, Joseph (1843–1926). California.

Republican. Benicia Collegiate Institute. Nominated
associate justice by William McKinley; confirmed
1898 by voice vote; retired 1925. California state
legislator, U.S. representative, federal appeals court
judge, U.S. attorney general.
McKinley, John (1780–1852). Alabama. Democrat.

Self-educated. Nominated associate justice by
Martin Van Buren; confirmed 1837 by voice vote;
died in office 1852. Alabama state legislator, U.S.
senator, U.S. representative.
McLean, John (1785–1861). Ohio. Democrat.

Andrew Jackson; confirmed 1829 by voice vote; died
in office 1861. U.S. representative, Ohio Supreme
Court justice, commissioner of U.S. General Land
Office, U.S. postmaster general.
McReynolds, James Clark (1862–1946).

Tennessee. Democrat. Vanderbilt, University of
Virginia. Nominated associate justice by Woodrow
Wilson; confirmed 1914 by 44–6 vote; retired 1941.
U.S. attorney general.
Miller, Samuel Freeman (1816–1890). Iowa.

Republican. Transylvania University. Nominated
associate justice by Abraham Lincoln; confirmed
1862 by voice vote; died in office 1890. Medical
doctor, private law practice, justice of the peace.
Minton, Sherman (1890–1965). Indiana. Democrat.

Indiana University, Yale. Nominated associate justice
by Harry Truman; confirmed 1949 by 48–16 vote;
retired 1956. U.S. senator, federal appeals court
judge.
Moody, William Henry (1853–1917).

associate justice by Theodore Roosevelt; confirmed
1906 by voice vote; retired 1910. Massachusetts
local district attorney, U.S. representative, secretary
of the navy, U.S. attorney general.
Moore, Alfred (1755–1810). North Carolina.

Federalist. Privately educated. Nominated associate
justice by John Adams; confirmed 1799 by voice
vote; resigned 1804. North Carolina legislator, state
attorney general, state court judge.
Murphy, William Francis (Frank) (1880–1949).

Michigan. Democrat. University of Michigan,
London’s Inn (England), Trinity College (Ireland).
Nominated associate justice by Franklin Roosevelt;
Michigan state court judge, mayor of Detroit,
governor of the Philippines, governor of Michigan,
Nelson, Samuel (1792–1873). New York. Democrat.

Middlebury College. Nominated associate justice by
John Tyler; confirmed 1845 by voice vote; retired
1872. Presidential elector, state court judge, New
York Supreme Court chief justice.
O’Connor, Sandra Day (1930–). Arizona.
Republican. Stanford. Nominated associate justice
by Ronald Reagan; confirmed 1981 by 99–0 vote;
retired 2006. Arizona state legislator, state court
judge.
Paterson, William (1745–1806). New Jersey.

Federalist. Princeton. Nominated associate justice by
died in office 1806. New Jersey attorney general,
delegate to Constitutional Convention, U.S. senator,
New Jersey governor.
Peckham, Rufus Wheeler (1838–1909). New York.

Democrat. Albany Boys’ Academy. Nominated
associate justice by Grover Cleveland; confirmed
1895 by voice vote; died in office 1909. New York
local district attorney, city attorney, state court
judge.
Pitney, Mahlon (1858–1924). New Jersey.

Republican. Princeton. Nominated associate justice
by William Howard Taft; confirmed 1912 by 50–26
vote; retired 1922. U.S. representative, New Jersey
state legislator, New Jersey Supreme Court justice,
chancellor of New Jersey.
Powell, Lewis Franklin, Jr. (1907–1998). Virginia.

Democrat. Washington and Lee, Harvard. Nominated
associate justice by Richard Nixon; confirmed 1971
by 89–1 vote; retired 1987. Private practice, Virginia
State Board of Education president, American Bar
Association president, American College of Trial
Lawyers president.
Reed, Stanley Forman (1884–1980). Kentucky.

Democrat. Kentucky Wesleyan, Yale, Virginia,
Columbia, University of Paris. Nominated associate
justice by Franklin Roosevelt; confirmed 1938 by
voice vote; retired 1957. Federal Farm Board
general counsel, Reconstruction Finance
Corporation general counsel, U.S. solicitor general.
Rehnquist, William Hubbs (1924–2005). Arizona.

Republican. Stanford, Harvard. Nominated associate
justice by Richard Nixon; confirmed 1971 by 68–26
vote; nominated chief justice by Ronald Reagan;
Private practice, assistant U.S. attorney general.
Roberts, John G., Jr. (1955–). Maryland.

Republican. Harvard. Nominated associate justice by
George W. Bush 2005; nomination withdrawn;
nominated chief justice by George W. Bush;
confirmed 2005 by 78–22 vote. Deputy solicitor
general, federal appeals court judge.
Roberts, Owen Josephus (1875–1955).

Pennsylvania. Republican. University of
Pennsylvania. Nominated associate justice by
Herbert Hoover; confirmed 1930 by voice vote;
resigned 1945. Private practice, Pennsylvania local
prosecutor, special U.S. attorney.
Rutledge, John (1739–1800). South Carolina.
Federalist. Middle Temple (England). Nominated
associate justice by George Washington; confirmed
1789 by voice vote; resigned 1791. Nominated chief
justice by George Washington August 1795 and
served as recess appointment; confirmation denied
and service terminated December 1795. South
Carolina legislator, state attorney general, governor,
chief justice of South Carolina, delegate to
Continental Congress and Constitutional Convention.
Rutledge, Wiley Blount (1894–1949). Iowa.

Democrat. Maryville College, University of
Wisconsin, University of Colorado. Nominated
1943 by voice vote; died in office 1949. Law
professor, federal appeals court judge.
Sanford, Edward Terry (1865–1930). Tennessee.

Republican. University of Tennessee, Harvard.
Nominated associate justice by Warren G. Harding;
Assistant U.S. attorney general, federal district court
judge.
Scalia, Antonin (1936–2016). Virginia. Republican.

Georgetown, Harvard. Nominated associate justice
by Ronald Reagan; confirmed 1986 by 98–0 vote;
died in office 2016. Assistant U.S. attorney general,
law professor, federal appeals court judge.
Shiras, George, Jr. (1832–1924). Pennsylvania.
Republican. Ohio University, Yale. Nominated
associate justice by Benjamin Harrison; confirmed
1892 by voice vote; retired 1903. Private practice.
Sotomayor, Sonia (1954–). New York. Democrat

(later a registered Independent). Princeton, Yale.
Nominated associate justice by Barack Obama;
confirmed 2009 by 68–31 vote. New York state
assistant district attorney, federal district court
judge, federal appeals court judge.
Souter, David Hackett (1939–). New Hampshire.

Republican. Harvard, Oxford. Nominated associate
justice by George H. W. Bush; confirmed 1990 by 90–
9 vote; retired 2009. New Hampshire attorney
general, state court judge, federal appeals court
judge.
Stevens, John Paul (1920–). Illinois. Republican.

Chicago, Northwestern. Nominated associate justice
by Gerald Ford; confirmed 1975 by 98–0 vote;
retired 2010. Federal appeals court judge.
Stewart, Potter (1915–1985). Ohio. Republican.

Yale, Cambridge. Received recess appointment from
Dwight Eisenhower to be associate justice in 1958;
confirmed 1959 by 70–17 vote; retired 1981.
Cincinnati city council member, federal appeals
court judge.
Stone, Harlan Fiske (1872–1946). New York.
Republican. Amherst College, Columbia. Nominated
associate justice by Calvin Coolidge; confirmed 1925
by 71–6 vote; nominated chief justice by Franklin
Roosevelt; confirmed 1941 by voice vote; died in
office 1946. Law professor, U.S. attorney general.
Story, Joseph (1779–1845). Massachusetts.

Democratic-Republican. Harvard. Nominated
associate justice by James Madison; confirmed 1811
by voice vote; died in office 1845. Massachusetts
state legislator, U.S. representative.
Strong, William (1808–1895). Pennsylvania.

Republican. Yale. Nominated associate justice by
Ulysses S. Grant; confirmed 1870 by voice vote;
retired 1880. U.S. representative, Pennsylvania
Supreme Court justice.
Sutherland, George (1862–1942). Utah.

Republican. Brigham Young, University of Michigan.
Nominated associate justice by Warren G. Harding;
confirmed 1922 by voice vote; retired 1938. Utah
state legislator, U.S. representative, U.S. senator.
Swayne, Noah Haynes (1804–1884). Ohio.

Republican. Privately educated. Nominated associate
justice by Abraham Lincoln; confirmed 1862 by 38–1
vote; retired 1881. Ohio state legislator, local
prosecutor, U.S. attorney for Ohio, Columbus city
council member.
Taft, William Howard (1857–1930). Connecticut.
Republican. Yale, Cincinnati. Nominated chief justice
by Warren G. Harding; confirmed 1921 by voice vote;
retired 1930. Ohio local prosecutor, state court
judge, U.S. solicitor general, federal appeals court
judge, governor of the Philippines, secretary of war,
U.S. president.
Taney, Roger Brooke (1777–1864). Maryland.

Democrat. Dickinson College. Nominated associate
justice by Andrew Jackson; nomination not
confirmed 1835; nominated chief justice by Andrew
Jackson; confirmed 1836 by 29–15 vote; died in
office 1864. Maryland state legislator, state attorney
general, acting secretary of war, secretary of the
Treasury (nomination later rejected by Senate).
Thomas, Clarence (1948–). Georgia. Republican.

Holy Cross, Yale. Nominated associate justice by
George H. W. Bush; confirmed 1991 by 52–48 vote.
U.S. Department of Education assistant secretary for
civil rights, Equal Employment Opportunity
Commission chair, federal appeals court judge.
Thompson, Smith (1768–1843). New York.

Democratic-Republican. Princeton. Nominated
associate justice by James Monroe; confirmed 1823
by voice vote; died in office 1843. New York state
legislator, state court judge, secretary of the navy.
Todd, Thomas (1765–1826). Kentucky. Democratic-

Republican. Liberty Hall (Washington and Lee).
Nominated associate justice by Thomas Jefferson;
Kentucky state court judge, state chief justice.
Trimble, Robert (1776–1828). Kentucky.

Democratic-Republican. Kentucky Academy.
Nominated associate justice by John Quincy Adams;
Kentucky state legislator, state court judge, U.S.
attorney, federal district court judge.
Van Devanter, Willis (1859–1941). Wyoming.

Republican. Indiana Asbury University, University of
Cincinnati. Nominated associate justice by William
Howard Taft; confirmed 1910 by voice vote; retired
1937. Cheyenne city attorney, Wyoming Territory
legislator, Wyoming Supreme Court justice, assistant
U.S. attorney general, federal appeals court judge.
Vinson, Frederick Moore (1890–1953). Kentucky.

Democrat. Centre College. Nominated chief justice
by Harry Truman; confirmed 1946 by voice vote;
died in office 1953. U.S. representative, federal
appeals court judge, director of Office of Economic
Stabilization, secretary of the Treasury.
Waite, Morrison Remick (1816–1888). Ohio.

Republican. Yale. Nominated chief justice by Ulysses
S. Grant; confirmed 1874 by 63–0 vote; died in office
1888. Private practice, Ohio state legislator.
Warren, Earl (1891–1974). California. Republican.
University of California. Recess appointment as chief
justice by Dwight Eisenhower 1953; confirmed 1954
by voice vote; retired 1969. California local district
attorney, state attorney general, governor.
Washington, Bushrod (1762–1829). Virginia.

Federalist. College of William and Mary. Nominated
associate justice by John Adams; confirmed 1798 by
voice vote; died in office 1829. Virginia state
legislator.
Wayne, James Moore (1790–1867). Georgia.

Democrat. Princeton. Nominated associate justice by
Andrew Jackson; confirmed 1835 by voice vote; died
in office 1867. Georgia state legislator, mayor of
Savannah, state court judge, U.S. representative.
White, Byron Raymond (1917–2002). Colorado.

Democrat. University of Colorado, Oxford, Yale.
Nominated associate justice by John Kennedy;
confirmed 1962 by voice vote; retired 1993. Deputy
White, Edward Douglass (1845–1921). Louisiana.

Democrat. Mount St. Mary’s College, Georgetown.
Nominated associate justice by Grover Cleveland;
confirmed 1894 by voice vote; nominated chief
justice by William Howard Taft; confirmed 1910 by
voice vote; died in office 1921. Louisiana state
legislator, Louisiana Supreme Court justice, U.S.
senator.
Whittaker, Charles Evans (1901–1973). Missouri.
Republican. University of Kansas City. Nominated
associate justice by Dwight Eisenhower; confirmed
1957 by voice vote; retired 1962. Federal district
court judge, federal appeals court judge.
Wilson, James (1742–1798). Pennsylvania.

Federalist. University of St. Andrews (Scotland).
Nominated associate justice by George Washington;
Delegate to Continental Congress and Constitutional
Convention.
Woodbury, Levi (1789–1851). New Hampshire.

Democrat. Dartmouth, Tapping Reeve Law School.
Nominated associate justice by James Polk;
New Hampshire state legislator, state court judge,
governor, U.S. senator, secretary of the navy,
secretary of the Treasury.
Woods, William B. (1824–1887). Georgia.

Republican. Western Reserve College, Yale.
Nominated associate justice by Rutherford B. Hayes;
Ohio state legislator, Alabama chancellor, federal
circuit court judge.
Appendix 3 Glossary
Abstention: A doctrine or policy of the federal

courts to refrain from deciding a case so that the
issues involved may first be definitively resolved by
state courts.
Acquittal: A decision by a court that a person

charged with a crime is not guilty.
Advisory opinion: An opinion issued by a court

indicating how it would rule on a question of law
should such a question come before it in an actual
case. Federal courts do not hand down advisory
opinions, but some state courts do.
Affidavit: A written statement of facts voluntarily

made under oath or affirmation.
Affirm: To uphold a decision of a lower court.
A fortiori: “With greater force or reason.”
Aggravating circumstances: Conditions that

increase the seriousness of a crime but are not a
part of its legal definition.
Amicus curiae: “Friend of the court.” A person (or

group), not a party to a case, who submits views
(usually in the form of written briefs) on how the
case should be decided.
Ante: “Prior to.”
Appeal: The procedure by which a case is taken to a

superior court for a review of the lower court’s
decision.
Appellant: The party dissatisfied with a lower court

ruling who appeals the case to a superior court for
review.
Appellate jurisdiction: The legal authority of a

superior court to review and render judgment on a
decision by a lower court.
Appellee: The party usually satisfied with a lower

court ruling against whom an appeal is taken.
Arbitrary: Unreasonable; capricious; not done in

accordance with established principles.
Arguendo: “In the course of argument.”
Arraignment: A formal stage of the criminal

process in which the defendants are brought before
a judge, are confronted with the charges against
them, and then enter a plea to those charges.
Arrest: The act of physically taking into custody or

otherwise depriving of freedom a person suspected
of violating the law.
Attainder, bill of: A legislative act declaring a

person or easily identified group of people guilty of a
crime and imposing punishments without the benefit
of a trial. Such legislative acts are prohibited by the
U.S. Constitution.
Attest: To swear to; to be a witness.
Bail: A security deposit, usually in the form of cash

or bond, that allows a person accused of a crime to
be released from jail and guarantees the accused’s
appearance at trial.
Balancing test: A process of judicial decision

making in which the court weighs the relative merits
of the rights of the individual against the interests of
the government.
Bench trial: A trial, without a jury, conducted

before a judge.
Bicameral: Having two houses within a legislative

body, as does the U.S. Congress.
Bona fide: “Good faith.”
Brandeis brief: A legal argument that stresses

economic and sociological evidence along with
traditional legal authorities. Named for Louis D.
Brandeis, who pioneered the use of such briefs.
Brief: A written argument of law and fact submitted

to the court by an attorney representing a party
having an interest in a lawsuit.
Case: A legal dispute or controversy brought to a
court for resolution.
Case-in-chief: The primary evidence offered by a

party in a court case.
Case law: Law that has evolved from past court

decisions, as opposed to law created by legislative
acts.
Case or controversy rule: The constitutional

requirement that courts may hear only real disputes
brought by adverse parties.
Certification: A procedure whereby a lower court

requests that a superior court rule on specified legal
questions so that the lower court may correctly
apply the law.
Certiorari, writ of: An order of an appellate court

to an inferior court to send up the records of a case
that the appellate court has elected to review. The
primary method by which the U.S. Supreme Court
exercises its discretionary jurisdiction to accept
appeals for a full hearing.
Civil law: Law that deals with the private rights of

individuals (e.g., property, contracts, negligence), as
contrasted with criminal law.
Class action: A lawsuit brought by one or more

persons who represent themselves and all others
similarly situated.
Collateral estoppel: A rule of law that prohibits an
already settled issue from being relitigated in
another form.
Comity: The principle by which the courts of one

jurisdiction give respect and deference to the laws
and legal decisions of another jurisdiction.
Common law: Law that has evolved from usage and

custom as reflected in the decisions of courts.
Compensatory damages: A monetary award,

equivalent to the loss sustained, to be paid to the
injured party by the party at fault.
Concurrent powers: Authority that may be

exercised by both state and federal governments.
Concurring opinion: A separate opinion written by

a judge who agrees with the opinion of the court but
expresses additional views (called a regular
concurrence), or a separate opinion written by a
judge who agrees with the court’s disposition of a
case but disagrees with the rationale used by the
majority to reach that disposition (called a special
concurrence).
Confrontation: The right of a criminal defendant to

be present at the testimony of prosecution witnesses
and to subject such witnesses to cross-examination.
Consent decree: A court-ratified agreement

voluntarily reached by parties to settle a lawsuit.
Constitutional court: A court created under
authority of Article III of the Constitution. Judges
serve for terms of good behavior and are protected
against having their salaries reduced by the
legislature.
Contempt: A purposeful failure to carry out an

order of a court (civil contempt) or a willful display
of disrespect for the court (criminal contempt).
Contraband: Articles that are illegal to possess.
Courts of appeals (federal): The intermediate-

level appellate courts in the federal system, each of
which has jurisdiction over a particular region
known as a circuit.
Criminal law: Law governing the relationship

between individuals and society. Deals with the
enforcement of laws and the punishment of those
who, by breaking laws, commit crimes.
Curtilage: The land and outbuildings immediately

adjacent to a home and regularly used by its
occupants.
Declaratory judgment: A court ruling determining

a legal right or interpretation of the law, but not
imposing any relief or remedy.
De facto: “In fact, actual.”

Defendant: A party at the trial level being sued in a
civil case or charged with a crime in a criminal case.
De jure: “By law.” As a result of law or official

government action.
De minimis: “Small or unimportant.” An issue too

trivial for a court to consider.
Demurrer: A motion to dismiss a lawsuit in which

the defendant admits to the facts alleged by the
plaintiff but contends that those facts are insufficient
to justify a legal cause of action.
De novo: “New, from the beginning.”
Deposition: Sworn testimony taken out of court.
Dicta; obiter dicta: Those portions of a judge’s

opinion that are not essential to deciding the case.
Directed verdict: An action by a judge ordering a

jury to return a specified verdict.
Discovery: A pretrial procedure whereby one party

to a lawsuit gains access to information or evidence
held by the opposing party.
Dissenting opinion: A formal written expression by

a judge who disagrees with the result reached by the
majority.
Distinguish: A court’s explanation of why a
particular precedent is inapplicable to the case
under consideration.
District courts (federal): The trial courts of

general jurisdiction in the federal system.
Diversity jurisdiction: The authority of federal

courts to hear cases in which a party from one state
is suing a party from another state.
Docket: The schedule of cases to be heard by a

court.
Double jeopardy: The trying of a defendant a

second time for the same offense. Prohibited by the
Fifth Amendment to the Constitution.
Due process: Government procedures that follow

principles of essential fairness.
Eminent domain: The authority of the government

to take private property for public purpose.
En banc: An appellate court hearing with all the

judges of the court participating.
Enjoin: An order from a court requiring a party to

do or refrain from doing certain acts.
Entrapment: A situation in which law enforcement

officials induce an otherwise innocent person into
the commission of a criminal act.
Equity: Law based on principles of fairness rather
than strictly applied statutes.
Error, writ of: An order issued by an appeals court

commanding a lower court to send up the full record
of a case for review.
Exclusionary rule: A principle of law that illegally

gathered evidence may not be admitted in court.
Exclusive powers: Powers reserved for either the

federal government or the state governments, but
not exercised by both.
Ex parte: “By or for one party.” A hearing in which

only one party to a dispute is present.
Ex post facto law: A criminal law passed by the

legislature and made applicable to acts committed
prior to passage of the law. Prohibited by the U.S.
Constitution.
Ex rel: “Upon information from.” Used to designate

a court case instituted by the government but
instigated by a private party.
Ex vi termini: “From the force or very meaning of

the term or expression.”
Federal question: A legal issue based on the U.S.

Constitution, laws, or treaties.
Felony: A serious criminal offense, usually
punishable by incarceration of one year or more.
Gerrymander: To construct political boundaries for

the purpose of giving advantage to a particular
political party or interest.
Grand jury: A panel of twelve to twenty-three

citizens who review prosecutorial evidence to
determine if there are sufficient grounds to issue an
indictment binding an individual over for trial on
criminal charges.
Guilty verdict: A determination that a person

accused of a criminal offense is legally responsible
as charged.
Habeas corpus: “You have the body.” A writ issued

to determine if a person held in custody is being
unlawfully detained or imprisoned.
Harmless error: An error occurring in a court

proceeding that is insufficient in magnitude to justify
the overturning of the court’s final determination.
Hearsay: Testimony based not on the personal

knowledge of the witness but on a repetition of what
the witness has heard others say.
Immunity: An exemption from prosecution granted

in exchange for testimony.
In camera: “In chambers.” A legal hearing held in
the judge’s chambers or otherwise in private.
Incorporation: The process whereby provisions of

the Bill of Rights are declared to be included in the
due process guarantee of the Fourteenth
Amendment and made applicable to state and local
governments.
Indictment: A document issued by a grand jury

officially charging an individual with criminal
violations and binding the accused over for trial.
In forma pauperis: “In the form of a pauper.” A

special status granted to indigents that allows them
to proceed without payment of court fees and to be
exempt from certain procedural requirements.
Information: A document, serving the same

purpose as an indictment, but issued directly by the
prosecutor.
Infra: “Below.”
Injunction: A writ prohibiting the person to whom it

is directed from committing certain specified acts.
In pari materia: “On the same subject.”
In re: “In the matter of.” The designation used in a

judicial proceeding in which there are no formal
adversaries.
In rem: “Against the thing.” A legal action directed
against a thing rather than against a person.
Inter alia: “Among other things.”
Interlocutory decree: A provisional action that

temporarily settles a legal question pending the final
determination of a dispute.
Ipse dixit: “He himself said it.” A statement, not

supported by proof, that depends for its
persuasiveness on the authority of the one who said
it.
Judgment of the court: The final ruling of a court,

independent of the legal reasoning supporting it.
Judicial activism: A philosophy that courts should

not be reluctant to review and if necessary strike
down legislative and executive actions.
Judicial notice: The recognition by a court of the

truth of certain facts without requiring one of the
parties to put them into evidence.
Judicial restraint: A philosophy that courts should

defer to the legislative and executive branches
whenever possible.
Judicial review: The authority of a court to

determine the constitutionality of acts committed by
the legislative and executive branches and to strike
down acts judged to be in violation of the
Constitution.
Jurisdiction: The authority of a court to hear and

decide legal disputes and to enforce its rulings.
Justiciable: Capable of being heard and decided by

a court.
Legislative court: A court created by Congress

under authority of Article I of the Constitution to
assist in carrying out the powers of the legislature.
Litigant: A party to a lawsuit.
Magistrate: A low-level judge with limited authority.
Mandamus: “We command.” A writ issued by a

court commanding a public official to carry out a
particular act or duty.
Mandatory jurisdiction: A case that a court is

required to hear.
Marque and reprisal: An order from the

government of one country requesting and
legitimating the seizure of persons and property of
another country. Prohibited by the U.S. Constitution.
Merits: The central issues of a case.
Misdemeanor: A less serious criminal act, usually

punishable by less than one year of incarceration.
Mistrial: A trial that is prematurely ended by a
judge because of procedural irregularities.
Mitigating circumstances: Conditions that lower

the moral blame of a person who commits a criminal
act but do not justify or excuse the act.
Moot: A question presented in a lawsuit that cannot

be answered by a court either because the issue has
resolved itself or because conditions have so
changed that the court is unable to grant the
requested relief.
Motion: A request made to a court for a certain

ruling or action.
Natural law: Law considered applicable to all

persons in all nations because it is thought to be
basic to human nature.
Nolle prosequi: “We will no longer prosecute.” The

decision of a prosecutor to drop criminal charges
against an accused.
Nolo contendere: “I will not contest it.” A plea

entered by a criminal defendant in which the
accused does not admit guilt but submits to
sentencing and punishment as if guilty.
Opinion of the court: An opinion announcing the

judgment and reasoning of a court endorsed by a
majority of the judges participating.
Order: A written command issued by a judge.
Original jurisdiction: The authority of a court to

try a case and to decide it, as opposed to appellate
jurisdiction.
Per curiam: “By the court.” An unsigned or

collectively written opinion issued by a court.
Peremptory challenge: An action taken by an

attorney to excuse a prospective juror without
explaining the reasons for doing so.
Per se: “In and of itself.”
Petitioner: A party seeking relief in court.
Petit jury: A trial court jury to decide criminal or

civil cases.
Plaintiff: The party who brings a legal action to

court for resolution or remedy.
Plea bargain: An arrangement in a criminal case in

which the defendant agrees to plead guilty in return
for the prosecutor reducing the criminal charges or
recommending a lenient sentence.
Plurality opinion: An opinion announcing the

judgment of a court with supporting reasoning that
is not endorsed by a majority of the justices
participating.
Police powers: The power of the state to regulate
for the health, safety, morals, and general welfare of
its citizens.
Political question: An issue more appropriate for

determination by the legislative or executive branch
than by the judiciary.
Precedent: A previously decided case that serves as

a guide for deciding a current case.
Preemption: A doctrine under which an area of

authority previously left to the states is, by an act of
Congress, brought into the exclusive jurisdiction of
the federal government.
Prima facie: “At first sight.” A party’s argument that

is sufficient to prevail unless effectively countered by
the opposing side.
Pro bono publico: “For the public good.” Usually

refers to legal representation done without fee for
some charitable or public purpose.
Pro se: “For himself or herself.” A person who

appears in court without an attorney.
Punitive damages: A monetary award (separate

from compensatory damages) imposed by a court for
punishment purposes to be paid by the party at fault
to the injured party.
Quash: To annul, vacate, or totally do away with.

Ratio decidendi: “The rationale for the decision.” A
court’s primary reasoning for deciding a case the
way it did.
Recusal: The action taken by a judge who decides

not to participate in a case because of a conflict of
interest or another disqualifying condition.
Remand: To send a case back to an inferior court

for additional action.
Res judicata: “A matter already judged.” A legal

issue that has been finally settled by a court
judgment.
Respondent: The party against whom a legal action

is filed.
Reverse: An action by an appellate court setting

aside or changing a decision of a lower court.
Ripeness: A condition in which a legal dispute has

evolved to the point where a court can resolve the
issues it presents.
Selective incorporation: The policy of the Supreme

Court to decide incorporation issues on a case-by-
case, right-by-right basis.
Show cause: A judicial order commanding a party

to appear in court and explain why the court should
not take a proposed action.
Solicitor general: The Justice Department official
whose office represents the federal government in
all litigation before the U.S. Supreme Court.
Standing; standing to sue: The right of parties to

bring legal actions because they are directly affected
by the legal issues raised.
Stare decisis: “Let the decision stand.” The

doctrine that once a legal issue has been settled it
should be followed as precedent in future cases
presenting the same question.
State action: An action taken by an agency or

official of a state or local government.
Stay: To stop or suspend.
Strict construction: Narrow interpretation of the

provisions of laws.
Subpoena ad testificandum: An order compelling

a person to testify before a court, legislative hearing,
or grand jury.
Subpoena duces tecum: An order compelling a

person to produce a document or other piece of
physical evidence that is relevant to issues pending
before a court, legislative hearing, or grand jury.
Sub silentio: “Under silence.” A court action taken

without explicit notice or indication.
Summary judgment: A decision by a court made
without a full hearing or without the presentation of
briefs or oral arguments.
Supra: “Above.”
Temporary restraining order: A judicial order

prohibiting certain challenged actions from being
taken prior to a full hearing on the question.
Test: A criterion or set of criteria used by courts to

determine if certain legal thresholds have been met
or constitutional provisions violated.
Three-judge court: A special federal court made up

of appellate and trial court judges, created to
expedite the processing of certain issues made
eligible for such priority treatment by congressional
statute.
Ultra vires: “Beyond the powers.” Actions taken

that exceed the legal authority of the person or
agency performing them.
Usus loquendi: “The common usage of ordinary

language.”
Vacate: To void or rescind.
Vel non: “Or not.”
Venireman: A juror.
Venue: The geographic jurisdiction in which a case
is heard.
Voir dire: “To speak the truth.” The stage of a trial

in which potential jurors are questioned to
determine their competence to sit in judgment of a
case.
Warrant: A judicial order authorizing an arrest or

search and seizure.
Writ: A written order of a court commanding the

recipient to perform or not to perform certain
specified acts.
Appendix 4 Online Case
Archive Index
Space limitations prevent us from including in this

volume excerpts of every important Supreme Court
decision dealing with constitutional powers and
constraints. To make a larger number of decisions
available to instructors and students, we have
created an online archive of additional case
excerpts. The archive includes excerpts of those
cases that appear in boldface in the text as well as
additional decisions not discussed in the text but
relevant to the subjects covered (see list below). As
the Court hands down new rulings of significance,
we will add them to the archive to ensure that the
materials available to our readers will always be
current. Access the archive at
https://edge.sagepub.com/conlaw.
Allied Structural Steel Co. v. Spannaus (1978)

American Insurance Association v. Garamendi
(2003)
Arizona v. Inter-Tribal Council of Arizona (2013)
Arizona Christian School Tuition Organization v.
Winn (2011)
Barron v. Baltimore (1833)
Board of Trustees of the University of Alabama v.
Garrett (2001)
Boumediene v. Bush (2008)
Brown v. Maryland (1827)
Buckley v. Valeo (1976)
Bunting v. Oregon (1917)
Carter v. Carter Coal Company (1936)
Central Virginia Community College v. Katz (2006)
Chicago, Burlington & Quincy Railroad Company
v. Chicago (1897)
Chicago, Milwaukee & St. Paul Railway v.
Minnesota (1890)
Chisholm v. Georgia (1793)
City of Boerne v. Flores (1997)
Cohens v. Virginia (1821)
Colegrove v. Green (1946)
Collector v. Day (1871)
Daniel v. Paul (1969)
DeFunis v. Odegaard (1974)
Department of Revenue of Kentucky v. Davis
(2008)
Dickerson v. United States (2000)
El Paso v. Simmons (1965)
Energy Reserves Group, Inc. v. Kansas Power and
Light Company (1983)
Ex parte Endo (1944)
Ex parte Quirin (1942)
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles (1987)
Free Enterprise Fund v. Public Company
Accounting Oversight Board (2010)
Frothingham v. Mellon (1923)
Gill v. Whitford (2018)
Goldwater v. Carter (1979)
Graves v. New York ex rel. O’Keefe (1939)
Griswold v. Connecticut (1965)
Haig v. Agee (1981)
Hamdan v. Rumsfeld (2006)
Hampton & Co. v. United States (1928)
Hein v. Freedom from Religion Foundation (2007)
Helvering v. Gerhardt (1938)
Hirabayashi v. United States (1943)
Holden v. Hardy (1898)
Hollingsworth v. Perry (2013)
Houston, E. & W. Texas Railway Co. v. United
States (1914)
Hutchinson v. Proxmire (1979)
Hylton v. United States (1796)
DeBenedictis (1987)
Kidd v. Pearson (1888)
Kilbourn v. Thompson (1881)
Kimel v. Florida Board of Regents (2000)
Lawrence v. Texas (2003)
Loretto v. Teleprompter Manhattan CATV Corp.
(1982)
Loving v. United States (1996)
Low v. Austin (1872)
Lucia v. Securities and Exchange Commission
(2018)
Lujan v. Defenders of Wildlife (1992)
Luther v. Borden (1849)
Marchetti v. United States (1968)
Mayor of New York v. Miln (1837)
Medellin v. Texas (2008)
Meyer v. Nebraska (1923)
Michigan v. Long (1983)
Morehead v. New York ex rel. Tipaldo (1936)
Mugler v. Kansas (1887)
Murdock v. City of Memphis (1875)
National Bellas Hess, Inc. v. Department of
Revenue of Illinois (1967)
National League of Cities v. Usery (1976)
Nevada Department of Human Resources v. Hibbs
(2003)
Northern Securities Company v. United States
(1904)
Northwestern Fertilizing Company v. Hyde Park
(1878)
Panama Refining Company v. Ryan (1935)
Pennell v. City of San Jose (1988)
Pennsylvania Coal Co. v. Mahon (1922)
Perez v. United States (1971)
Quill Corp. v. North Dakota (1992)
Raines v. Byrd (1997)
Rasul v. Bush (2004)
Roe v. Wade (1973)
Saenz v. Roe (1999)
Seminole Tribe of Florida v. Florida (1996)
Shelby County v. Holder (2013)
Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers (2001)
South Carolina State Highway Department v.
Barnwell Brothers (1938)
South Central Bell Telephone v. Alabama (1999)
Spector Motor Service v. O’Connor (1951)
Springer v. United States (1881)
State Farm Mutual Automobile Insurance Co. v.
Campbell (2003)
Summers v. Earth Island Institute (2009)
Swift & Company v. United States (1905)
Tahoe-Sierra Preservation Council v. Tahoe
Regional Planning Agency (2002)
Train v. City of New York (1975)
Trump v. Hawaii (2018)
Trump v. International Refugee Assistance Project
(2017)
United States ex rel. Tennessee Valley Authority v.
Welch (1946)
United States Trust v. New Jersey (1977)
United States v. Belmont (1937)
United States v. Comstock (2010)
United States v. Curtiss-Wright Export Corp.
(1936)
United States v. Kahriger (1953)
United States v. Sanchez-Gomez (2018)
United States v. Windsor (2013)
Veazie Bank v. Fenno (1869)
Wayman v. Southard (1825)
West Lynn Creamery v. Healy (1994)
Williams-Yulee v. Florida Bar (2015)
Wyeth v. Levine (2009)
Zivotofsky v. Clinton (2012)
Case Index
Excerpted cases are indicated by bold typeface.
Addyston Pipe & Steel Co. v. United States 175

U.S. 211 (1899), 417n
Adkins v. Children’s Hospital 261 U.S. 525
(1923), 647–650, 655, 656–659
Agins v. City of Tiburon 447 U.S. 255 (1980), 682n
Alabama v. King and Boozer 314 U.S. 1 (1941),
529n
A.L.A. Schechter Poultry v. United States
295 U.S. 495 (1935), 267–269, 271, 273n, 359,
432, 433–438, 444, 466, 475, 477, 618t
Alden v. Maine 527 U.S. 706 (1999), 384–389
Allgeyer v. Louisiana 165 U.S. 578 (1897),
293–294, 299, 618t, 632–634, 636, 640, 645
Allied Structural Steel Co. v. Spannaus 438 U.S.
234 (1978), 613, 614
Alvarez-Machain, United States v. 504 U.S. 655
(1992), 33
American Insurance Association v. Garamendi 539
U.S. 396 (2003), 396
Andrews v. Andrews 188 U.S. 14 (1903), 390
Arizona Christian School Tuition Organization v.
Winn 563 U.S.___ (2011), 113n
Arizona v. United States 567 U.S. 387
(2012), 398, 399–404
Arkansas Game & Fish Commission v. United
States 568 U.S. 23 (2012), 696
Armstrong v. United States 364 U.S. 40 (1960),
677n
Ashton v. Cameron County District Court (1936),
432
Ashwander v. Tennessee Valley Authority 297 U.S.
288 (1936), 116, 117
Atlantic Coast Line Railroad Co. v. Brotherhood of
Locomotive Engineers 398 U.S. 281 (1970), 56n
Bailey v. Drexel Furniture Co. 259 U.S. 20

(1922), 539–542, 558, 618t
Baker, South Carolina v. 485 U.S. 505 (1988),
529–532, 533
Baker v. Carr 369 U.S. 186 (1962), 96–102,
106, 111, 121, 127
Bakke, Regents of the University of California v.
438 U.S. 265 (1978), 41, 93
Barenblatt v. United States 360 U.S. 109
(1959), 30, 165–169
Barron v. Baltimore 32 U.S. (7 PET) 243 (1833),
677
Barry v. United States ex rel. Cunningham 279
U.S. 597 (1929), 124n
Bass, United States v. 404 U.S. 346 (1971), 468
Belmont, United States v. 310 U.S. 324 (1937),
220, 263, 303
Berman v. Parker 348 U.S. 26 (1954), 699,
700–702, 703–704, 708, 710–711
Bibb v. Navajo Freight Lines 359 U.S. 520 (1959),
508
Biddle v. Perovich 274 U.S. 480 (1927), 255n
BMW of North America v. Gore 517 U.S. 559
(1996), 662–667
Board of Trustees of University of Alabama v.
Garrett 531 U.S. 356 (2001), 389n
Boerne, City of, v. Flores 521 U.S. 507 (1997), 80,
81, 116, 175, 176, 179, 274
Boston Beer Company v. Massachusetts (1877),
610
Boumediene v. Bush 553 U.S. 723 (2008), 324t,
332
Bowsher v. Synar 478 U.S. 714 (1986), 280–
283, 284
Brewster, United States v. 408 U.S. 501 (1972),
142t, 255n
Bronson v. Kinzie 1 How. 311 (1843), 604
Brown v. Board of Education (I) 347 U.S. 483
(1954), 21, 42, 75, 87, 168, 458
Brown v. Maryland 12 Wheat. 419 (1827), 494n,
565–568
Brushaber v. Union Pacific Railroad 240 U.S. 1
(1916), 525
Buckley v. Valeo 424 U.S. 1 (1976), 214n
Bunting v. Oregon 243 U.S. 426 (1917), 646, 649
Burdick v. United States 236 U.S. 79 (1915), 255n
Burton v. Wilmington Parking Authority 365 U.S.
715 (1961), 123t
Bush v. Gore 531 U.S. 98 (2000), 40, 76, 108,
184–192
Bush v. Palm Beach Canvassing Board 531 U.S. 70
(2000), 185
Butler, United States v. 297 U.S. 1 (1936),
359, 432, 543–548, 551, 554, 555, 556, 618t
Butz v. Economou 438 U.S. 478 (1978), 247
C & A Carbone Inc. v. Town of Clarkstown New

York 511 U.S. 383 (1994), 508, 513
Calder v. Bull (1798), 710
Camps Newfound Owatoona v. Town of Harrison
520 U.S. 564 (1997), 508
Caperton v. A. T. Massey Coal Co. 556 U.S. 868
(2009), 55
Caperton v. A. T. Massey Coal Corp. 556 U.S.
868 (2009), 667–672
Cappaert v. United States 426 U.S. 128 (1976),
509
Carter v. Carter Coal Co. 298 U.S. 238 (1936), 94,
359, 432, 439, 450, 454, 463, 466, 475, 477, 493,
618t
Chadha, Immigration and Naturalization Service v.
462 U.S. 919 (1983), 29–30, 54, 76, 118, 211,
275–279, 282
Champion v. Ames (Lottery Case) 188 U.S.
321 (1903), 421, 422–425, 452, 459, 463
Chapman, In re 166 U.S. 661 (1897), 124n
Chemical Waste Management Inc. v. Hunt 504
U.S. 334 (1992), 513, 578, 579, 581
Chicago, Burlington & Quincy Railroad v. Chicago
166 U.S. 226 (1897), 657, 678
Chicago, Milwaukee & St. Paul Railway v.
Minnesota (1890), 630–631
Chicago Board of Trade v. Olsen 262 U.S. 1
(1923), 421
Chisholm v. Georgia 2 U.S. 419 (1793), 74–75,
383, 385
Cincinnati v. Vester 281 U.S. 439 (1930), 699
City of Boerne v. Flores 521 U.S. 507 (1997), 80,
81, 116, 175, 176, 179, 274
City of Burbank v. Lockheed Air Terminal 411 U.S.
624 (1973), 397t
City of Cuyahoga Falls, Ohio v. Buckeye
Community Hope Foundation 538 U.S. 188 (2003),
662n
City of New York v. Miln 33 U.S. 120 (1837), 497
City of Richmond v. J.A. Croson Co. 488 U.S. 469
(1989), 82
Clinton v. City of New York 524 U.S. 417
(1998), 114, 208, 209–213, 265–266, 273–274
Clinton v. Jones 520 U.S. 681 (1997), 249–
255
Cohens v. Virginia 6 Wheat. 264 (1821), 60n, 74,
342, 383, 601
Colegrove v. Green 328 U.S. 459 (1946), 96, 97,
98
Coleman v. Court of Appeals of Maryland 566 U.S.
___ (2012), 389n
Coleman v. Miller 307 U.S. 433 (1939), 116
Cole v. LaGrange 113 U.S. 1 (1884), 699
Collector v. Day 11 Wall. 113 (1871), 528, 529,
533
Commonwealth v. Alger 61 Mass. 53 (1851), 694
Complete Auto Transit v. Brady 430 U.S. 274
(1977), 568–572, 573, 579
Comptroller of the Treasury of Maryland v. Wynne
575 U.S. ___ (2015), 508
Comstock, United States v. 560 U.S. 126 (2010),
486, 489
Consolidated Edison Company v. NLRB 305 U.S.
197 (1938), 450
Constantine, United States v. 296 U.S. 287 (1935),
558
Cook v. Gralike 531 U.S. 510 (2001), 135
Cooley v. Board of Wardens 53 U.S. (12
How.) 299 (1852), 495, 496–499, 501, 514
Cooper Industries v. Leatherman Tool Group 532
U.S. 424 (2001), 667
Cooper v. Aaron 358 U.S. 1 (1958), 75
Corfield v. Coryell 6 Fed. Cas. 546 (C.C.E.D. Pa.
1823), 621
Corwin, Edward S., 68
Coyle v. Smith 221 U.S. 559 (1911), 356–358
Crandall v. Nevada 73 U.S. 35 (1868), 622
Crosby v. National Foreign Trade council 530
U.S. 363 (2000), 391–396, 400
Curtiss-Wright Export Corporation, United States
v. 299 U.S. 304 (1936), 177, 261, 262, 266, 267,
269n, 313, 317, 323
Cutter v. Wilkinson 544 U.S. 709 (2005), 80n
Cuyahoga Falls, Ohio v. Buckeye Community Hope
Foundation 538 U.S. 188 (2003), 662n
Dames & Moore v. Regan 453 U.S. 654

(1981), 311–313, 394
Daniel v. Paul 395 U.S. 298 (1969), 461, 463
Darby, United States v. 312 U.S. 100 (1941),
94, 360, 368, 449, 450–454, 455, 466, 477, 479,
490, 542
Dartmouth College v. Woodward 17 U.S. (4
Wheat.) 518 (1819), 594–599, 601, 606
Davidson v. New Orleans 96 U.S. 97 (1878), 625n
Davis v. Michigan Dept. of Treasury 489 U.S.
803 (1989), 532–535
Davis v. Passman 442 U.S. 228 (1979), 142t
Dean Milk Co. v. Madison 340 U.S. 349 (1951),
508, 512
Debs, In re 158 U.S. 564 (1895), 206
De Canas v. Bic 424 U.S. 351 (1976), 404
DeFunis v. Odegaard 416 U.S. 312 (1974), 94
Department of Agriculture v. Moreno 413 U.S. 528
(1973), 199n
Department of Commerce v. Montana 503 U.S.
442 (1992), 121n
D. H. Holmes v. McNamara 486 U.S. 24 (1988),
573
Dobbins v. Commissioners of Erie County 16 Pet.
435 (1842), 528, 533
Dr. Bonham’s Case (1610, England), 76–77
Doe v. McMillan 412 U.S. 306 (1973), 142t
Donovan v. San Antonio Metropolitan Transit
Authority (1985), 362
Doremus, United States v. 249 U.S. 86 (1919),
542
Eakin v. Raub 12 Sargent & Rawle 330

(1825), 77, 78–79
Eastland v. U.S. Servicemen’s Fund 421 U.S. 491
(1975), 142t
E. C. Knight Co., United States v. 156 U.S. 1
(1895), 358–359, 413–417, 421, 428, 438, 449,
463, 466, 477
Edwards v. California 314 U.S. 160 (1941), 495,
508
El Paso v. Simmons 379 U.S. 497 (1965), 612
Employment Division, Department of Human
Resources of Oregon v. Smith 494 U.S. 872
(1990), 80, 175, 274
Energy Reserves Group Inc. v. Kansas Power and
Light Company 459 U.S. 400 (1983), 613n, 614,
615
Evansville-Vanderburgh Airport Authority Dist. v.
Delta Airlines Inc., 527
Ex parte Endo 323 U.S. 283 (1944), 303
Ex parte Garland 71 U.S. 333 (1867), 255n, 259
Ex parte Grossman 267 U.S. 87 (1925), 255–
257
Ex parte McCardle 74 U.S. (7 WALL) 506 (1869),
83, 89, 90, 91, 116, 331n
Ex parte Milligan 71 U.S. (24 Wall.) 2 (1866),
290–295, 327–328
Ex parte Virginia 100 U.S. 339 (1880), 173
Ex parte William Wells 59 U.S. 307 (1855), 257
Ex parte Yerger 8 Wall. 85 (1869), 87
Exxon Corporation v. Eagerton 462 U.S. 176
(1983), 613n
Fairfax’s Devisee v. Hunter’s Lessee 7 Cr. 603

(1813), 70
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles 482 U.S. 304
(1987), 686
Fisher v. University of Texas 579 U.S. ____ (2016),
41
Fitzpatrick v. Bitzer 427 U.S. 445 (1976), 383, 387
Flast v. Cohen 392 U.S. 83 (1968), 92n, 110,
111–113
Fletcher v. Peck 10 U.S. (6 Cr.) 87 (1810),
589–592, 593
Fletcher v. Rhode Island (1847), 495n
Florida Lime & Avocado Growers Inc. v. Paul 373
U.S. 132 (1963), 397t
Free Enterprise Fund v. Public Company
Accounting Oversight Bd. (2010), 487
Freeman v. Hewit 329 U.S. 249 (1946), 569–570
Freytag v. Commissioner 501 U.S. 868 (1991),
213n
Frothingham v. Mellon 262 U.S. 447 (1923), 110,
111, 112, 113

Authority 469 U.S. 528 (1985), 341, 361, 362–
366, 367, 368, 369, 388, 463
Garland, Ex parte 71 U.S. 333 (1867), 259
Georgia v. Stanton 6 Wall. 50 (1868), 244
Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974),
663
Gibbons v. Ogden 22 U.S. (9 Wheat) 1
(1824), 19, 69, 143, 400, 407–412, 421, 422,
423, 452, 456, 463n, 466, 477, 486, 494, 501,
601
Gibson v. Florida Legislative Investigating
Commission 372 U.S. 539 (1963), 169
Gillespie v. Oklahoma 257 U.S. 501 (1922), 528n
Gill v. Whitford 585 U.S. ___ (2018), 93n
Glidden Co. v. Zdanok 370 U.S. 530 (1962), 87n
Gobeille v. Liberty Mutual Insurance Co. 577 U.S.
___ (2015), 398t
Goldberg v. Sweet 488 U.S. 252 (1989), 571
Goldblatt v. Hempstead 369 U.S. 590 (1962),
682n
Goldwater v. Carter 444 U.S. 996 (1979), 103, 262
Gonzales v. Raich 545 U.S. 1 (2005), 463n,
478–484, 492
Granholm v. Heald 544 U.S. 460 (2005), 508,
511–514, 573
Gravel v. United States 408 U.S. 606 (1972),
136, 137–140
Graves v. New York ex rel. O’Keefe 306 U.S. 466
(1939), 529, 533, 535
Great Atlantic and Pacific Tea Company Inc. v.
Cottrell 424 U.S. 366 (1976), 508
Green v. Biddle 1 U.S. 1 (1823), 615
Gregory v. Ashcroft 501 U.S. 542 (1991), 381, 466
Griswold v. Connecticut 381 U.S. 479 (1965), 38,
672
Grossman, Ex parte 267 U.S. 87 (1925), 255–
257
Grutter v. Bollinger 539 U.S. 306 (2003), 41
Guy v. Baltimore 100 U.S. 434 (1880), 580
Hadacheck v. Los Angeles 239 U.S. 394 (1915),

682n
Hamdan v. Rumsfeld 548 U.S. 557 (2006), 116,
199, 296, 324t, 331–332
Hamdi v. Rumsfeld 542 U.S. 507 (2004), 198,
318, 323, 324t, 325–332
Hammer v. Dagenhart 247 U.S. 251 (1918),
359, 425–428, 452, 539, 540, 618t
Hampton & Co. v. United States 276 U.S. 394
(1928), 267, 269, 271, 535–536
Hans v. Louisiana 134 U.S. 1 (1890), 383
Hatter, United States v. 532 U.S. 557 (2001), 55n
Hawaii Housing Authority v. Midkiff 467 U.S.
229 (1984), 702–705, 708, 710–711
Haywood v. Drown 556 U.S. 729 (2009), 403
Healy v. Beer Institute 491 U.S. 324 (1989), 508
Heart of Atlanta Motel v. United States 379
U.S. 241 (1964), 458–462
Hein v. Freedom from Religion Foundation 551
U.S. 587 (2007), 113
Helstoski, United States v. 442 U.S. 477 (1979),
140, 142t
Helvering v. Davis 301 U.S. 619 (1937), 450,
552n, 562
Helvering v. Gerhardt 304 U.S. 405 (1938), 528–
529, 533
Hines v. Davidowitz 312 U.S. 52 (1941), 400, 401,
404
Hipolite Egg Company v. United States 220 U.S.
45 (1911), 425n
Hirabayashi v. United States 320 U.S. 81 (1943),
298, 299, 300, 306
Hoffman Plastic compounds, Inc. v. NLRB (2002),
401
Hoke v. United States 227 U.S. 308 (1913), 421,
452
Holden v. Hardy 169 U.S. 366 (1898), 634–635,
637, 640, 649
Holland, State of Missouri v. 252 U.S. 416
(1920), 389–391
Hollingsworth v. Perry 570 U.S. ____ (2013), 110n,
114–115
Home Building & Loan Assn. v. Blaisdell 290
U.S. 398 (1934), 608–612
Hopkins Savings Association v. Cleary 296 U.S.
315 (1935), 432
Horne v. Department of Agriculture 576 U.S.
___ (2015), 695–699
Houston, E. & W. Texas Railway Co. v. United
States 234 U.S. 342 (1914) (Shreveport Rate
Case), 418, 453, 463, 466, 477
H. P. Hood & Sons, Inc. v. Du Mond 336 U.S. 525
(1949), 579
Hughes v. Oklahoma 441 U.S. 322 (1979), 507,
508, 512, 579
Humphrey’s Executor v. United States 295
U.S. 602 (1935), 198n, 232–235, 281
Commission 432 U.S. 333 (1977), 504–507,
510
Hustler Magazine v. Falwell 485 U.S. 46 (1988), 24
Hutchinson v. Proxmire 443 U.S. 111 (1979), 140,
142t
Hylton v. United States 3 Dall. 171 (1796), 24,
517–519, 559
Immigration and Naturalization Service v. Chadha

462 U.S. 919 (1983), 29–30, 54, 76, 118, 211,
275–279, 282–283
Immigration and Naturalization Service v. Lopez-
Mendoza 468 U.S. 1032 (1984), 402
Indian Motorcycle Co. v. United States 238 U.S.
570 (1931), 528n
In re Chapman 166 U.S. 661 (1897), 124n
In re Debs 158 U.S. 564 (1894), 206
In re Neagle 135 U.S. 1 (1890), 201, 202–206,
306
International Business Machines Corp., U.S. v. 517
U.S. 843 (1996), 526
Interstate Commerce Commission v. Alabama-
Midland Railway Co. 168 U.S. 144 (1897), 417n
Interstate Commerce Commission v. Brimson 154
U.S. 447 (1894), 417n
Interstate Commerce Commission v. Cincinnati,
New Orleans & Texas Pacific Railway Co., 417n
IRAP v. Trump 883 F. 3d 233 (CA4 2018), 199n
Jones v. United States 529 U.S. 848 (2000), 475
Kahriger, United States v. 345 U.S. 22 (1953), 542

Kassell v. Consolidated Freightways 450 U.S. 662
(1981), 508
Katzenbach, South Carolina v. 383 U.S. 301
(1966), 171–175
Kelo v. City of New London 545 U.S. 469
(2005), 706–713
DeBenedictis 480 U.S. 470 (1987), 613n, 686
Kidd v. Pearson 128 U.S. 1 (1888), 413, 415, 447
Kilbourn v. Thompson 103 U.S. 168 (1881), 136,
140, 155, 156, 157, 163
Kimel v. Florida Board of Regents 528 U.S. 62
(2000), 389n
Klein, United States v. 13 Wall. 128 (1871), 87, 88,
89, 90
Knowlton v. Moore 178 U.S. 41 (1900), 537
Korematsu v. United States 323 U.S. 214
(1944), 39, 297–304, 323, 333
Lane County v. Oregon 74 U.S. 71 (1869), 358

Lawrence, United States v. 3 U.S. 42 (1795), 62
Lawrence v. Texas 539 U.S. 558 (2003), 88t, 674
Leon, United States v. 468 U.S. 897 (1984), 32
License Cases 5 How. 504 (1847), 495
License Tax Cases 72 U.S. 462 (1866), 558
Lochner v. New York 198 U.S. 45 (1905),
635–640, 645, 646, 649
Long v. Rockwood 277 U.S. 142 (1928), 528n
Lopez, United States v. 514 U.S. 549 (1995),
378, 386, 464–471, 472–475, 478, 480, 481, 556
Lopez-Mendoza, INS v. 468 U.S. 1032 (1984), 402
Lord v. Veazie 29 U.S. 251 (1850), 93n
Loretto v. Teleprompter Manhattan CATV Corp.
458 U.S. 419 (1982), 679, 688, 692, 693, 699
Lorillard Tobacco Co. v. Reilly 533 U.S. 525 (2000),
397t
Lottery Case (Champion v. Ames) 188 U.S.
321 (1903), 421, 422–425, 452, 459, 463
Louisville Bank v. Radford 295 U.S. 555 (1935),
432, 433n
Loving v. United States 517 U.S. 748 (1996), 273n
Low v. Austin 13 Wall. 29 (1872), 565–568
Lucas v. South Carolina Coastal Council 505
U.S. 1003 (1992), 690–695
Lucia v. Securities and Exchange Commission
[SEC] 585 U.S. ___ (2018), 213n
Lujan v. Defenders of Wildlife 504 U.S. 555 (1992),
110n
Luther v. Borden 7 How. 1 (1849), 96, 100, 367n,
601
Maine v. Taylor 477 U.S. 131 (1986), 507,

509–511, 514
Mapp v. Ohio 367 U.S. 643 (1961), 32
Marbury v. Madison 5. U.S. (1 CR) 137
(1803), 12, 40, 58, 60, 61–68, 69, 76, 80–81, 83,
95, 115n, 117–118, 239, 243, 248, 365, 388, 487,
499, 519
Marchetti v. United States 390 U.S. 39 (1968),
542–543
Martin v. Hunter’s Lessee 14 U.S. 304 (1816), 60,
70–74, 338n, 348, 368
Maryland v. Louisiana 452 U.S. 456 (1981), 579
Massachusetts v. United States 435 U.S. 444
(1978), 527
Mayor of New York v. Miln 11 Pet. 102 (1837),
494–495
McCardle, Ex parte 74 U.S. (7 WALL) 506 (1869),
83, 89, 90, 91, 116
McCray v. United States 195 U.S. 27 (1904),
536–539, 540
McCullagh, United States v. 221 F. 288 (D. Kan.
1915), 390
McCulloch v. Maryland 17 U.S. 316 (1819),
19, 29, 69, 144–153, 171–175, 173, 175, 343,
344–348, 365, 368, 388, 453, 457, 486, 527–528,
533, 534, 535, 537, 601, 610, 697
McGrain v. Daugherty 273 U.S. 135 (1927), 155–
159
Meyer v. Nebraska 262 U.S. 390 (1923), 299, 672
Michelin Tire Corp. v. Wages 423 U.S. 276
(1976), 565–568
Miller v. California 413 U.S. 15 (1973), 475
Miller v. Schoene 276 U.S. 272 (1928), 682n
Milligan, Ex parte 71 U.S. (24 Wall.) 2
(1986), 290–295, 327–328
Miln, City of New York v. 33 U.S. 120 (1837), 497
Minnesota Rate Cases 230 U.S. 352 (1913), 436
Miranda v. Arizona 384 U.S. 436 (1966), 88t
Mississippi v. Johnson 71 U.S. (4 WALL)
(1867), 242–244
Missouri Pacific Railway Company v. Nebraska 164
U.S. 403 (1896), 699, 704
Missouri v. Holland 252 U.S. 416 (1920),
389–391, 610
Mistretta v. United States 488 U.S. 361
(1989), 43–44, 80, 270–273
Monogahela Navigation Co. v. United States 148
U.S. 312 (1893), 83, 694
Morehead v. New York ex rel. Tipaldo 298
U.S. 587 (1936), 443n, 618t, 655, 656, 659
Moreno, United States Dept. of Agriculture v. 413
U.S. 528 (1973), 199n
Morrison, United States v. 529 U.S. 598
(2000), 471–476, 478, 480, 481, 486
Morrison v. Olson 487 U.S. 654 (1988), 214,
215–220, 283–284
Motor Coach Employees v. Lockridge 403 U.S. 274
(1971), 401
Mugler v. Kansas 123 U.S. 623 (1887), 630
Mulford v. Smith 307 U.S. 38 (1939), 450, 548n
Muller v. Oregon 208 U.S. 412 (1908), 36,
640, 641–646, 649, 658
Munn v. Illinois 94 U.S. 113 (1877), 626–630,
661
Murphy v. Ford 390 F. SUPP 1372 (1975),
259–260
Association 584 U.S. ___ (2018), 380–382
Muskrat v. United States 219 U.S. 346 (1911), 93–
94
Myers v. United States 272 U.S. 52 (1926),
200n, 207, 227–232, 234
National Bellas Hess Inc. v. Department of

Revenue of Illinois 383 U.S. 753 (1967), 571–572,
573–577
Business v. Sebelius 567 U.S. 519 (2012), 20,
154, 379, 478, 484, 485–494, 556–564
National Labor Relations Board v. Fainblatt 306
U.S. 601 (1939), 450
National Labor Relations Board v. Friedman-Harry
Marks Clothing Company 301 U.S. 58 (1937), 450
National Labor Relations Board v. Fruehaf Trailer
Company 301 U.S. 49 (1937), 450
National Labor Relations Board v. Jones & Laughlin
Steel Corporation (1937), 453, 459, 463, 466,
467, 470, 477, 480, 490
Laughlin Steel Corporation 301 U.S. 1
(1937), 360, 443–448
Canning 573 U.S. ____ (2014), 221–226
National League of Cities v. Usery 426 U.S. 833
(1976), 342, 464n, 470, 475
National Meat Association v. Harris 565 U.S. ___
(2012), 398t
National Mutual Insurance Co. v. Tidewater
Transfer Co. 337 U.S. 582 (1949), 86n
Neagle, In re 135 U.S. 1 (1890), 201, 202–
206, 306
Nebbia v. New York 291 U.S. 502 (1934),
651–655
Nevada Department of Human Resources v.
Hibbs 538 U.S. 721 (2003), 389n
Newdow v. U.S. Congress 542 U.S. 1 (2004), 88t
New Energy Co. of Indiana v. Limbach 486 U.S.
269 (1988), 507, 512, 579
New England Power Company v. New Hampshire
455 U.S. 331 (1982), 508
New Jersey v. Wilson 7 Cr. 164 (1812), 592
Newport v. Fact Concerts Inc. 453 U.S. 247 (1981),
663
New State Ice Co. v. Liebmann 285 U.S. 262
(1932), 336n, 482
New York v. United States 505 U.S. 144
(1992), 367–373, 374, 375, 377, 378, 380, 463–
464, 470, 555, 558
Nigro v. United States 276 U.S. 332 (1928), 542
Nixon, United States v. 418 U.S. 683 (1974),
76, 237–242
Nixon v. Fitzgerald 457 U.S. 731 (1982), 245–
248, 250
Nixon v. United States 506 U.S. 224 (1993),
26, 103–108, 129, 215
Nollan v. California Coastal Commission 483
U.S. 825 (1987), 687–689
Norris v. Boston 7 How. 283 (1849), 495
Northern Securities Company v. United States 193
U.S. 197 (1904), 417
Northwestern Fertilizing Co. v. Hyde Park 97 U.S.
659 (1878), 604–605, 610
Obergefell v. Hodges 576 U.S. ____ (2015), 88t,

115, 674
Ogden v. Saunders 12 Wheat. 213 (1827), 594n,
601
Oklahoma Tax Commission v. Jefferson Lines 514
U.S. 175 (1995), 571
Old Dominion Land Co. v. United States 269 U.S.
55 (1925), 704
Oregon Waste Systems, Inc. v. Department
of Environmental Quality of Oregon 511 U.S.
93 (1994), 512, 577, 578–581
Osborn v. Bank of the United States 9 Wheat. 783
(1824), 601
Otis v. Parker 187 U.S. 606 (1903), 640
Pace v. Burgess 92 U.S. 372 (1876), 527

Pacific Gas and Electric Company v. State Energy
Resources Conservation and Development
Commission 461 U.S. 190 (1983), 397t
Pacific Mutual Life Insurance Co. v. Haslip 499 U.S.
1 (1991), 663, 664, 665, 666
Padelford, United States v. 76 U.S. (9 Wall.) 531
(1869), 87
Panama Refining Company v. Ryan 293 U.S. 388
(1935), 177, 267, 268t, 269n, 271, 273n, 432,
433n, 618t
Panhandle Oil Co. v. Mississippi 277 U.S. 218
(1928), 528n
Passenger Cases 7 How. 283 (1849), 460, 495
Patchak v. Zinke 583 U.S. ___ (2018), 87n, 88,
88t, 89–91
Paul v. Virginia 8 Wall. 168 (1869), 621
Pearson v. Callahan 555 U.S. 223 (2009), 575
Peirce v. New Hampshire 5 How. 504 (1847), 495n
Penn Central Transportation Company v.
City of New York 438 U.S. 104 (1978), 682–
686, 697
Pennell v. City of San Jose 485 U.S. 1 (1988),
662n
Pennsylvania Coal Co. v. Mahon 260 U.S. 393
(1922), 681, 684, 686, 691, 692, 693, 697
Pennsylvania v. Union Gas Co. 491 U.S. 1 (1989),
383–384
Perez v. United States 402 U.S. 146 (1971), 461–
463, 465, 480, 482, 487, 493
Philadelphia v. New Jersey 437 U.S. 617 (1978),
508, 512, 581
Phillips Chemical Co. v. Dumas Independent
School District 361 U.S. 376 (1960), 534
Pike v. Bruce Church 397 U.S. 137 (1970), 508,
573
Pink, United States v. 315 U.S. 203 (1942), 312,
313
Piqua Branch of the State Bank of Ohio v. Knoop
16 How. 369 (1854), 604
Polar Tankers, Inc. v. City of Valdez 557 U.S. 1
(2009), 576
Pollock v. Farmers’ Loan and Trust Co. 157 U.S.
429 (1895), 520n, 530, 531
Pollock v. Farmers’ Loan and Trust Co. 158
U.S. 601 (1895), 94, 519–524
Powell v. McCormack 395 U.S. 486 (1969),
24, 124n, 125–129, 130
Printz v. United States 521 U.S. 898 (1997),
29, 373–379, 380, 381, 489, 556, 560
Prize Cases 67 U.S. (22 Bl.) 635 (1863), 286,
287–290
Proprietors of Warren Bridge 36 U.S. (11
Pet.) 420 (1837), 599, 600–604
Quill Corp. v. North Dakota 504 U.S. 298 (1992),

499, 572, 573–577
Quirin, Ex parte 317 U.S. 1 (1942), 296–297, 326,
327
Railroad Retirement Board v. Alton Railroad Co.

295 U.S. 300 (1935), 432, 433n
Raines v. Byrd 521 U.S. 811 (1997), 113, 208, 210
Rasul v. Bush 542 U.S. 466 (2004), 324t, 331
Raymond Motor Transportation Inc. v. Rice 434
U.S. 429 (1978), 508
Redrup v. New York 386 U.S. 767 (1967), 475
Regents of the University of California v. Bakke
438 U.S. 265 (1978), 41, 93
Reorganized CF&I Fabricators of Utah, Inc., United
States v. 518 U.S. 213 (1996), 559, 563
Rice v. Santa Fe Elevator Corp. 331 U.S. 218
(1947), 400
Richmond, City of, v. J. A. Croson Co. 488 U.S. 469
(1989), 82
Riegel v. Medtronic 552 U.S. 312 (2008), 397t
Rochin v. California (1952), 32
Rock Royal Cooperative, United States v. 307 U.S.
533 (1939), 450
Roe v. Wade 410 U.S. 113 (1973), 19, 36, 37, 76,
82, 87, 88t, 94–95, 674
Ruckelshaus v. Monsanto Co. (1984), 698
Saenz v. Roe 526 U.S. 489 (1999), 625n

Sanchez, United States v. 340 U.S. 42 (1950), 542
Sanchez-Gomez, United States v. 584 U.S. ___
(2018), 95n
Santa Cruz Fruit Packing v. NLRB 303 U.S. 453
(1938), 450
Savage v. Jones 225 U.S. 501 (1912), 393
Schechter Poultry v. United States 295 U.S.
495 (1935), 267–269, 271, 273n, 359, 432, 433–
438, 444, 466, 475, 477, 618t
Schick v. Reed 419 U.S. 256 (1974), 255n
Scott v. Sandford 60 U.S. 393 (1857), 69, 82,
242, 292, 348t, 350–355, 619
Sebelius, National Federation of
Independent Business v. 567 U.S. 519
(2010), 20, 154, 379, 478, 484, 485–494, 556–
564
Second Employers’ Liability Cases 223 U.S. 1
(1912), 436
Seminole Tribe of Florida v. Florida 517 U.S. 44
(1996), 384
Shauver, U.S. v. 214 F. 154 (1914), 390
Shelby County, Alabama v. Holder 570 U.S. ____
(2013), 176
Sheldon v. Sill 49 U.S. 441 (1850), 56n
Shreveport Rate Case 234 U.S. 342 (1914), 418,
453, 463, 466, 477
Silkwood v. Kerr-McGee 464 U.S. 238 (1984), 397t,
401
Sioux Nation of Indians, United States v. 448 U.S.
371 (1980), 678n
Slaughterhouse Cases 16 Wall. 36 (1873),
619, 620–625, 633
Smith v. Turner 7 How. 283 (1849), 495
Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers (2001),
475n
Sonzinsky v. United States 300 U.S. 506 (1937),
542, 550
South Carolina State Highway Department v.
Barnwell Brothers 303 U.S. 177 (1938), 500, 501
South Carolina v. Baker 485 U.S. 505 (1988),
529–532, 533
South Carolina v. Katzenbach 383 U.S. 301
(1966), 171–175
South Carolina v. United States 199 U.S. 437
(1905), 528n
South Central Bell Telephone v. Alabama 526 U.S.
160 (1999), 581
South Dakota v. Dole 483 U.S. 203 (1987),
552–555, 560, 564
South Dakota v. Wayfair 585 U.S. ___ (2018),
572–577
South-Eastern Underwriters Association, United
States v. (1944), 30
Southern Pacific Company v. Arizona 325
U.S. 761 (1945), 500–503, 505
Spector Motor Service v. O’Connor 340 U.S. 602
(1951), 569, 570
Sperry Corp., United States v. 493 U.S. 52 (1989),
527
Springer v. United States 102 U.S. 586 (1881),
519
Sproles v. Binford 286 U.S. 374 (1932), 610
Stafford v. Wallace 258 U.S. 495 (1922),
418–421, 434, 444, 477
State Farm Mutual Automobile Insurance Co. v.
Campbell 538 U.S. 408 (2003), 667
State of Missouri v. Holland 252 U.S. 416
(1920), 389–391
State of Wyoming v. State of Oklahoma 502 U.S.
437 (1992), 508
State v. Makwanyane (1995, South Africa), 33
Steward Machine Co. v. Davis 301 U.S. 548
(1937), 450, 548–552, 560, 562
Stone v. Mississippi 101 U.S. 814 (1880),
605–607, 610
Sturges v. Crowninshield 4 Wheat. 122 (1819),
593
Sveen v. Melin 584 U.S. ___ (2018), 613–616
Swift & Company v. United States 196 U.S. 375
(1905), 418, 477
Swift v. Tyson 41 U.S. 1 (1842), 601
Tahoe-Sierra Preservation Council v. Tahoe

Regional Planning Agency 535 U.S. 302 (2002),
698, 713n
Tennessee Valley Authority v. Hill 437 U.S. 153
(1978), 509
Texas v. White 74 U.S. 700 (1869), 358
Thurlow v. Massachusetts 5 How. 504 (1847),
495n
Train v. City of New York 420 U.S. 35 (1975), 207
Trump v. Hawaii 585 U.S. ___ (2018), 199, 303,
332–333
Trustees of Dartmouth College v. Woodward
17 U.S. (4 Wheat.) 518 (1819), 594–599, 601,
606
Tumey v. Ohio 273 U.S. 510 (1927), 669
TXO Production Corp. v. Alliance Resources Corp.
509 U.S. 443, 663, 664, 665, 666
Union Gas Co., Pennsylvania v. 491 U.S. 1 (1989),

383–384
United Public Workers v. Mitchell 330 U.S. 75
(1947), 95
United States ex rel. Tennessee Valley Authority v.
Welch 327 U.S. 546 (1946), 699, 704
United States Shoe Corp., United States v.
523 U.S. 360, 525–527
United States Trust v. New Jersey 431 U.S. 1
(1977), 613
United States v. Alvarez-Machain 504 U.S. 655
(1992), 33
United States v. Bass 404 U.S. 346 (1971), 468
United States v. Belmont 310 U.S. 324 (1937),
263
United States v. Brewster 408 U.S. 501 (1972),
136n, 142t
United States v. Butler 297 U.S. 1 (1936),
359, 432, 543–548, 551, 554, 556, 618t
United States v. Carolene Products Co. 304 U.S.
144 (1938), 660n, 711
United States v. Causby 328 U.S. 256 (1946),
679–681
United States v. Comstock 560 U.S. 126 (2010),
152–154, 486, 489
United States v. Constantine 296 U.S. 287 (1935),
558
United States v. Coombs 12 Pet. 72 (1838), 482
United States v. Curtiss-Wright Export Corporation
299 U.S. 304 (1936), 177, 261, 262, 266, 267,
269n, 313, 317, 323
United States v. Darby 312 U.S. 100 (1941),
94, 360, 368, 449, 450–454, 455, 466, 477, 479,
490, 542
United States v. Doremus 249 U.S. 86 (1919), 542
United States v. E. C. Knight Co. 156 U.S. 1
(1895), 358–359, 413–417, 466, 477
United States v. Hatter 532 U.S. 557 (2001), 55n
United States v. Helstotski 442 U.S. 477 (1979),
140, 142t
United States v. International Business Machines
Corp. 517 U.S. 843 (1996), 526
United States v. Kahriger 345 U.S. 22 (1953), 542
United States v. Klein 13 Wall. 128 (1872), 87, 88,
89, 90
United States v. Leon 468 U.S. 897 (1984), 32
United States v. Lopez 514 U.S. 549 (1995),
378, 386, 464–471, 472–475, 478, 480, 481, 556
United States v. McCullagh 221 F. 288, 390
United States v. Morrison 529 U.S. 598
(2000), 471–476, 478, 480, 481, 486
United States v. Nixon 418 U.S. 683 (1974),
76, 236, 237–242, 247, 252
United States v. Padelford (1870), 87
United States v. Pink 315 U.S. 203 (1942), 312,
313
United States v. Rayburn House Office Building
Room 2113 (2007), 141
United States v. Reorganized CF&I Fabricators of
Utah, Inc. 518 U.S. 213 (1996), 559, 563
United States v. Rock Royal Cooperative 307 U.S.
533 (1939), 450
United States v. Sanchez 340 U.S. 42 (1950), 542
United States v. Sanchez-Gomez 584 U.S. ___
(2018), 95n
United States v. Shauver 214 F. 154 (1914), 390
United States v. Sioux Nation of Indians 448 U.S.
371 (1980), 678n
United States v. South-Eastern Underwriters
Association 322 U.S. 533 (1944), 30
United States v. Sperry Corp. 493 U.S. 52 (1989),
527
United States v. United States Shoe Corp.
523 U.S. 360, 525–527
United States v. Wilson 32 U.S. 150 (1833), 255n
United States v. Windsor 570 U.S. 744 (2013), 18,
88t, 115n, 207n
Usery, National League of Cities v. 426 U.S. 833
(1976), 342, 361–363, 365, 366, 369, 373, 464n,
470, 475
U.S. Term Limits, Inc. v. Thornton 514 U.S.
779 (1995), 24, 129–135, 212
Veazie Bank v. Fenno 8 Wall. 533 (1869), 536

Veazie v. Moor 14 How. 568 (1853), 413
Virginia, Ex parte 100 U.S. 339 (1880), 173
Wabash, St. Louis & Pacific Railway Co. v. Illinois

118 U.S. 557 (1886), 417n
Wardair Canada v. Florida Department of Revenue
477 U.S. 1 (1986), 571
Watkins v. United States 354 U.S. 178
(1957), 30, 140, 159–165, 166
Wayman v. Southard 10 Wheat. 1 (1825), 267,
269
Wesberry v. Sanders 376 U.S. 1 (1964), 121n
West Coast Hotel v. Parrish 300 U.S. 379
(1937), 443, 448, 451, 655, 656–660
Western Live Stock v. Bureau of Revenue 303 U.S.
250 (1938), 569, 570
West Lynn Creamery v. Healy 512 U.S. 186
(1994), 581
Wheaton v. Peters 33 U.S. 591 (1834), 601
Wickard v. Filburn 317 U.S. 111 (1942), 449,
450, 454–457, 459, 466, 467, 475, 478, 479,
480–481, 484, 487, 488, 492, 493, 548n
Wiener v. United States 357 U.S. 349 (1958), 235
Williamson v. Lee Optical Company 348 U.S.
483 (1955), 660–661
Williams v. Fears 179 U.S. 270 (1900), 299
Williams-Yulee v. Florida Bar 575 U.S. ___ (2015) ,
672
William Wells, Ex parte 59 U.S. 307 (1855), 257
Willson v. Black-Bird Creek Marsh Company 2 Pet.
245 (1829), 494, 501
Wilson, New Jersey v. 7 Cr. 164 (1812), 592
Wilson, United States v. 32 U.S. 150 (1833), 255n
Wilson v. New 243 U.S. 332 (1917), 609
Windsor, United States v. 570 U.S. 744 (2013), 18,
88t, 115n, 207n
Wisconsin Department of Industry v. Gould Inc.,
401
Wisconsin Public Intervenor v. Mortier 501 U.S.
597 (1991), 397t
Wisconsin v. Mitchell 509 U.S. 476 (1993), 36
Wolf v. Colorado 338 U.S. 25 (1949), 32
Writs of Assistance Case (1761), 77
Wyeth v. Levine 555 U.S. 555 (2009), 398t, 400,
403
Wynehamer v. People 13 N.Y. 378 (1856), 619
Wyoming v. Oklahoma 502 U.S. 437 (1992), 508
Yerger, Ex parte 8 Wall. 85 (1869), 87

Youngstown Sheet & Tube Co. v. Sawyer 343
U.S. 579 (1952), 196n, 206, 262, 304, 305–310,
312, 315, 320, 323, 394, 395
Zivotofsky v. Clinton 566 U.S. ____ (2012), 102n,

108, 314, 318
Zivotofsky v. Kerry, Secretary of State 576
____ (2015), 109, 199, 207n, 262, 311, 313–321
Subject Index
Abortion rights case, 19, 36, 37, 82, 88t, 94–95,

674
Academic Universe, 44
Adams, John, 49, 61, 120, 182, 285
Adams, John Quincy, 590
Administrative Procedures Act of 1946, 113
Advice and consent of the Senate, 6, 56, 226
Affirmative action programs, 41, 82, 93
Affordable Care Act (“Obamacare”). See Patient
Protection and Affordable Care Act of 2010
Afghanistan conflict, 323, 325
Agnew, Spiro, 194
Agricultural Adjustment Act (AAA) of 1933, 543–
548
Agricultural Adjustment Act (AAA) of 1938, 454,
467, 481
Agricultural production regulation, 454–457, 504–
507, 543–548, 695–699
Airspace use and the takings clause, 679–681
Alcoholic beverage minimum drinking ages, 552–
555
Alcoholic beverage regulation, 413, 495, 511–514,
528, 552–555, 619, 630
Alito, Samuel, 15, 35, 728
due process and judicial fairness opinion, 671–
672
federalism jurisprudence, 381–382, 403–404
presidential foreign policy powers opinion,
319–321
removal of jurisdiction jurisprudence, 89–90
Sebelius opinion, 562–564
standing to sue opinion, 115n
taxing and spending power jurisprudence,
562–564
taxpayer standing to sue opinion, 113
Ambassador appointment power, 261, 262
Amending the Constitution, 6
Amendment-enforcing power of Congress, 169–
176
American Bar Association, 630
American Civil Liberties Union (ACLU), 42, 166,
299
American legal system, 13f, 14. See also Federal
judiciary
American Psychological Association (APA), 18
Amicus curiae briefs, 17, 18, 19, 41–42
Anti-Federalists, 9, 60
Antitrust legislation, 405, 413–417
Appellate jurisdiction, 12–13, 60, 83
congressional removal of, 83–91
Apple grading system, 504–507
Appointment power of the president, 56, 196,
213–226
independent counsel, 214–220
power of removal, 226–235
principal versus inferior officers, 213–220, 283
recess appointments, 213, 220–226
Senate advice and consent power, 6, 56, 226
Apportionment and reapportionment, 96–102, 121
Argentina, 84
Arms embargoes, 177, 266
Article I of the Constitution, 119, 124, 716–719
commerce regulating power, 358, 406. See
also Commerce power
congressional membership criteria, 124
congressional war-making powers, 285
contract clause, 588
habeas corpus provision, 291
historical overview, 119–121
necessary and proper clause, 122, 143–154.
See also Necessary and proper clause
presentment clause, 208
restrictions on state taxation powers, 564
speech or debate clause, 135–141
tax and spend provisions, 515–516
vesting clause for congressional power, 49–50
Article II of the Constitution, 6, 719–720
enumerated presidential domestic powers,
196
“executive power” interpretations, 200
express presidential foreign affairs powers,
196
faithful execution clause, 199, 200
pardon power provision, 255
presidential military and foreign affairs powers
provisions, 260–261, 285
presidential selection procedures, 182–183
presidential succession provisions, 193
take care clause, 310
vesting clause for executive power, 50, 195,
200
Article III of the Constitution, 6, 48, 720–721
cases and controversies limitations, 91
compensation clause, 55
constraints on judicial power, 83. See also
Judicial powers, constraints on
drafting, 55
exceptions clause, 83, 87, 88
federal judicial system establishment, 14
jurisdiction provisions, 12, 56, 58, 83
vesting clause for judicial power, 50
Article IV of the Constitution, 96, 721
Article V of the Constitution, 721
Article VI of the Constitution, 122, 721
Article VII of the Constitution, 721–722
Articles of Confederation, 6, 8, 48
Articles of War, 295n
Attitudinal approaches to judicial decision making,
33–36
Australia, 136
Austria, 14, 84
Authorization for Use of Military Force (AUMF),
286, 323, 325
Balanced Budget Act of 1997, 210

Balanced Budget and Emergency Deficit Control
Act of 1985, 280–283
Baldwin, Henry, 123t, 728
Bank of the United States, 29, 144–153, 349
Bankruptcy laws, 587–588, 593–594
Barbour, Philip P., 74, 123t, 728
Beach public access, 687–689
Beard, Charles, 5, 585
Belgium, 14, 84
Bicameral legislature, 120, 277–278
Bill of Rights, 9, 722–723. See also specific
amendments
Bipartisan Legal Advisory Group (BLAG), 115n
Birth control regulation, 672. See also Abortion
rights case
Bituminous Coal Conservation Act of 1935, 439
Black, Charles, 29
Black, Hugo, 728
commerce power jurisprudence, 461, 503
congressional investigation jurisprudence, 168
executive power jurisprudence, 206
Japanese American internment case
(Korematsu), 299–300
legislative experience, 123t
on constitutional basis of the judiciary, 56
on the takings clause, 677
on the U.S. Constitution, 2
privacy rights opinion, 674
Roosevelt’s appointment of, 429
steel mill seizure case (Youngstown), 305–306
takings clause jurisprudence, 681
textualist approach, 28
voting rights jurisprudence, 173–174
Blackmun, Harry A., 728
commerce power jurisprudence, 509–510,
569–570, 580–581
delegation of powers jurisprudence, 271–272,
273
docket book sample, 16f
federalism jurisprudence, 362, 363–365, 372–
373
on polling other jurisdictions, 33
political questions opinion, 107–108
presidential immunity jurisprudence, 247–248
privacy rights opinion, 674
state taxation power jurisprudence, 569–570,
577, 580–581
takings clause jurisprudence, 693–694
Blair, John, Jr., 123t, 728
Blankenship, Don, 667, 672, 673
Blatchford, Samuel, 631, 728
Bond interest taxation, 529–532
Bork, Robert, 26, 237
Bradley, Joseph P., 620, 624, 631, 728
Brady Handgun Violence Prevention Act of 1993,
373–379
Brandeis, Louis D., 116, 117, 231–232, 336, 429,
433n, 449, 641–642, 728
Brandeis Brief, 643–644
Brazil, 136
Brennan, William J., Jr., 366, 728
bargaining example, 21
criticism of originalism, 26
federalism jurisprudence, 361
intergovernmental tax immunity opinion, 529,
530–531
on mootness, 94
on oral arguments, 19
on standing to sue requirements, 110
political questions opinion, 98–100, 102
speech or debate clause jurisprudence, 139–
140
state taxation power jurisprudence, 566–568
takings clause jurisprudence, 683–685, 689–
690
taxing and spending power jurisprudence, 555
Brewer, David J., 424–425, 631, 645–646, 728
Breyer, Stephen, 728
474–475, 490–493
federalism jurisprudence, 378–379
judicial compensation clause jurisprudence,
55n
jury awards opinion, 665
line-item veto jurisprudence, 212, 266
necessary and proper clause jurisprudence,
152
presidential foreign policy powers opinion, 318
presidential immunity jurisprudence, 253
presidential selection jurisprudence, 189–190
recess appointment opinion, 221, 222–224
state sovereign immunity jurisprudence, 387–
388
Briefs, 15, 17–19. See also Amicus curiae briefs
British Parliament, 119–120, 127, 182
Brown, Henry B., 728
Brzonkala, Christy, 471, 476
Budget cuts, 280
Burger, Warren, 361, 728
commerce power jurisprudence, 505–507
conservative ideology, 17, 613
executive privilege opinion, 238–241
legislative veto opinion, 275, 277–278
Nixon and, 40
political orientation and judicial decision
making, 34–35
separation of powers jurisprudence, 30, 275,
277–278, 282–283
Burr, Aaron, 61, 236
Burton, Harold Hitz, 728
Bush, George H. W., 195, 219, 260, 286, 367, 463
Bush, George W.
election case (Bush v. Gore), 40, 76, 108, 184–
192
executive agreements, 263
military orders, 198
post-9/11 military use and war on terrorism,
286, 321–333. See also War on terrorism
recess appointments, 220–221
signing statements, 53, 314
use of executive privilege, 236
use of pardon power, 260
Business-affected-with-a-public-interest (BAPI)
doctrine, 630
Butler, Pierce, 56, 429, 430, 431, 449, 552, 728
Butler, William M., 543, 544
Byrnes, James Francis, 40, 123t, 728
Calhoun, John C., 348

Campbell, John Archibald, 123t, 728
Canada, 84, 322
Capital punishment jurisprudence, 35
Capitation tax, 516
Cardozo, Benjamin, 40, 267, 429, 433n, 438, 449,
463, 549–551, 728
Carter, Jimmy, 255, 262, 275, 276, 311
Case citation system, 43–44
Catron, John, 599n, 729
Census, 121
Certification route of appeal, 12
Certiorari, 12–13
Certiorari pool system, 15
Charters as contracts, 594–599
Chase, Salmon P., 83, 86, 87, 123t, 294–295, 729
Chase, Samuel P., 55n, 123t, 518, 729
Checks and balances, 6–8. See also Separation of
powers/checks and balances system
Chief justice of the Supreme Court
case opinion assignment, 21
case selection process, 15
political orientations and judicial decision
making, 34–35
Child labor regulation, 116, 359, 425–428, 449,
539–542, 647–650
Circuit Court Act of 1801, 61
Circuit courts, 59
Civil liberties
chief justice political orientation and judicial
decision making, 34–35
commerce power applications, 458–462
economic liberties versus, 584
free speech versus free expression, 28
Japanese American internment (Korematsu),
39, 297–304
judicial review and minority rights, 82
state immigration policy, 398–404
voting rights, 169–175
war on terrorism and, 321–333
Civil Rights Act of 1957, 169
Civil Rights Act of 1964, 405, 458
Civil War Amendments, 355–356. See also
Fifteenth Amendment; Fourteenth Amendment;
Thirteenth Amendment
Civil War era, 290–295, 348t
income tax, 519
Southern interpretations of federalism, 338
use of war powers, 286–295
Clark, Tom C., 32, 101, 165, 458, 459–461, 729
Clarke, John Hessin, 729
Clean Water Act, 197–198, 370, 475n
Clement, Paul, 207
Clerk’s office of the Supreme Court, 14–15
Cleveland, Grover, 206
Clifford, Nathan, 123t, 729
Clinton, Bill, 179, 193, 219, 220
Clinton v. Jones, 249–255
economic sanctions policy, 392
Coal mining regulation, 686
Collusive suits, 93–94
Commander in Chief of the military, 10, 196, 198,
285. See also War and military affairs
Commerce power, 405, 477–478
agricultural production regulation, 454–457,
504–507
alcoholic beverage regulation, 511–514
Article I provisions, 358, 406
child labor regulation, 359, 425–428, 449, 539,
542
civil rights applications, 458–462
defining interstate commerce, 413–421
doctrine of selected exclusiveness, 499
dormant or negative commerce clause, 499–
500, 503–504
dual federalism approach and, 405
Eleventh Amendment and state sovereign
immunity, 384
federalism issues and, 358–360
federal police power and, 421–428, 457–458
foreign commerce, 406
foundations, 405–412
gun control application, 464–471
health insurance law (Sebelius case), 485–494
manufacturing and interstate commerce, 413–
417
Marshall Court and defining, 406–412
medical marijuana regulation, 478–484
minimum wage regulation, 360, 363–365,
451–458
New Deal legislation and, 359, 428–457. See
also New Deal legislation
of the states, 494–514. See also State
commercial regulation power; State taxation
power
police power applications, 421–428, 458
post-New Deal expansion (1960s and 1970s),
457–463
railroad rate regulation, 417–418
Republican Court era jurisprudence (1990s-),
463–494
restrictions on state taxation powers, 564–
565. See also State taxation power
sexual violence law application, 471–476
Shreveport doctrine, 417–418
social regulation and, 412–413, 421–428, 458
state burdens on interstate commerce, 499–
514
state discrimination against interstate
commerce, 504–514
state taxes on interstate commerce, 568–581
stream of commerce doctrine, 418–421
Tenth Amendment and, 412, 454, 458, 475
transportation safety regulation, 500–503
unfair labor practices regulation, 443–448
Commerce power of the states. See State
commercial regulation power
Commodity price controls, 651–655
Compassionate Use Act of1996, 478–484
Compensation clause, Article III, 55
Compensatory damages, 662n
Comptroller general, 280–283
Concurring opinion, 21
Conference system, Supreme Court decision
making, 20–21
Conflicts of interest and due process, 667–672
Congress
institutional independence and integrity, 122–
141
member privileges and immunities, 135–141,
142t
minority representation in, 121
qualifications and membership, 24, 124–135
structure and composition of, 120–121
Congress-executive interactions. See Interbranch
interactions; Separation of powers/checks and
balances system
Congressional district reapportionment, 93n, 96–
102
Congressional member removal, 124
Congressional membership requirements, 24,
124–125
Congressional powers, 119, 121–122
amendment-enforcing power, 169–176
Article I provisions, 49–50, 119, 122, 141–142.
See also Article I of the Constitution
Articles of Confederation and, 3–4
commerce regulation, 358. See also
Commerce power
constitutional interpretation, 81, 178–179
constraints on, 142
delegation of powers issues, 266–274
enumerated powers, 141–152
executive power limitations, 206–207
exercise of executive and judicial powers,
274–284
foreign affairs, 262, 321
impeachment, 26, 103–108, 179, 192–193
implied powers, 152–169
influence on Supreme Court decision making,
41
inherent powers, 176–178
investigative powers, 154–169, 176–177
legislative veto, 8, 30, 54, 118, 274–279
necessary and proper clause, 122, 143–154
overriding presidential veto, 208
privileges and immunities, 135–141
proposed veto over state legislation, 122
removal of Court jurisdiction, 83–88
separation of powers examples, 50
“separation of powers games,” 51–52
sources of (table), 143t
war-making powers, 285–286. See also War
and military affairs
See also Commerce power; Federalism;
Takings clause issues; Taxing and spending
power
Congressional Review Act of 1996, 279n
Congressional term limits, 23t, 129–135
Conservative ideology, 618
judicial constraint/activism role orientations,
36–37
judicial self-restraint and, 79
preference-based approaches to decision
making, 34–37
Supreme Court case selection and, 17
Constitutional Convention, 4–5, 48
Article III drafting, 55
commerce regulating power and, 406
determining the intentions of the framers, 27
Constitutional courts, 13, 14, 84, 342–344
Constitutional interpretation. See Judicial review;
Supreme Court, decision making
Constitution of the U.S. See U.S. Constitution
Consumer Credit Protection Act, 461
Contraceptive ban, 672
Contract clause issues, 585, 587
Article I provisions, 588
bankruptcy laws, 587–588, 593–594
bridge proprietors conflict, 599–604
corporate charters (Dartmouth College case),
594–599
economic crises (New Deal era), 608–612
lottery regulation, 605–607
Marshall Court and, 589–599
modern applications, 612–616
mortgage contract relief, 608–612
post-Civil War era, 604–607
private property rights and, 588
state insurance beneficiary designation, 613–
616
Taney Court and, 599–604
the framers and, 585, 587–589
“Yazoo lands” controversy, 589–593
See also Property rights
Cooley, Thomas M., 625, 631
Coolidge, Calvin, 429, 535
Cooperative federalism, 341, 342t, 360–366, 379
Corporate charters as contract, 594–599
Council of revision, 58, 77
Cox, Archibald, 237
Criminal sentencing, 80, 270–273
Cruel and unusual punishment, 39
Curtis, Benjamin Robbins, 123t, 354–355, 497–
499, 729
Cushing, William, 517n, 729
Dagenhart, Reuben, 428

Dagenhart, Roland, 425–426
Dairy price regulation, 651–655
Daniel, Peter Vivian, 123t, 729
Dartmouth College case (1819), 594–599
Davis, David, 123t, 290, 729
Day, William Rufus, 93–94, 359, 426–427, 729
Days, Drew S., III, 41
Dean, John, III, 237
Death penalty case decision making, 35
Debs, Eugene, 206
Declaration of Independence, 2
Defense of Marriage Act (DOMA), 18, 88t, 115n,
207
Delegation of powers, 266–274
Democratic checks on the judiciary, 79–80
Democratic-Republicans, 182
Denmark, 136, 321–333
Detainee Treatment Act (DTA) of 2005, 324t, 331n
Dies, Martin, Jr., 160
Direct taxes, 516–519
Dissenting opinion, 21
District courts, 59, 60
Docket numbers, 15
Doctrine of selected exclusiveness, 499
Dormant commerce clause, 499–500, 503–504
Dorr Rebellion, 96
Douglas, William O., 729
commerce power jurisprudence, 462–463, 503
executive power jurisprudence, 206
impeachment attempt, 193
on congressional power to remove jurisdiction,
87
privacy rights jurisprudence, 38
140
702
Drinking age regulation, 552–555
Dual federalism, 341, 342t, 366–383, 379
commerce power interpretation, 405
post–Civil War, 355–360
Taney’s interpretation, 349–355
See also Federalism; Tenth Amendment
Due process, 617–619
conflicts of interest and judicial fairness, 667–
672
Fifth Amendment clause, 458, 617
Fourteenth Amendment clause, 585, 617
initial interpretations, 619–625
procedural, 618
state eminent domain powers and, 677–678
See also Economic substantive due process;
Substantive due process
Duvall, Gabriel, 123t, 729
Easterbrook, Frank, 29
Eastland, James, 75
E-commerce regulation, 572–577
An Economic Interpretation of the Constitution of
the United States (Beard), 5, 584–585
Economic liberties, 584–586. See also Contract
clause issues; Economic substantive due process;
Property rights; Takings clause issues
Economic sanctions, 391–396
Economic substantive due process, 585, 607,
618–619
alcoholic beverage regulation, 630
Brandeis Brief, 643–644
business-affected-with-a-public-interest (BAPI)
doctrine, 630
commodity price controls, 651–655
contemporary relevance, 662–675
demise (West Coast Hotel v. Parrish [1937]),
655–660
grain warehouse regulation, 626–630
initial rejection, Slaughterhouse Cases, 619–
625
jury awards of monetary damages, 662–667
laissez-faire Court applications (1923-1936),
647–650
minimum wage issues, 647–650, 655–660
New Deal era Court, 650–660
optical business regulation, 660–661
out-of-state insurance companies regulation,
632–634
railroad rate regulation, 630–631
rational basis test, 660
“reasonable exercise of state power” test,
630–634
tools of the laissez-faire courts, 618–619
work hours regulation, 634–646
See also Substantive due process; Takings
clause issues
Eighteenth Amendment, 725
Eighth Amendment, 39, 723
Eisenhower, Dwight, 169, 235, 255, 275
Electoral College system, 50, 182–184
Electronic information resources, 44
Electronic submission of briefs, 17
Eleventh Amendment, 74–75, 340, 383–389, 723
Ellsworth, Oliver, 123t, 517n, 729
Embargoes, 177, 266
Eminent domain powers. See Takings clause
issues
Enclave approach, 331, 339, 342, 347, 359, 360,
361, 458
Endangered animal protection, 389–391
Enforcement of the laws, 207
English judicial review, 76–77
Environmental Protection Agency (EPA), 197–198,
207, 215
Environmental regulations and the takings clause,
690–695
Equal protection clause. See Fourteenth
Amendment, equal protections clause
Eskridge, William, 51
Exceptions clause, Article III, 83, 87, 88
Excise taxes, 515, 517, 536–542
agricultural production regulation, 544
uniform application requirement, 516
See also Taxing and spending power
Exclusionary rule, 32
Executive agreements, 262–263
Executive branch influence on the Supreme Court,
40–41
Executive orders, 197–198
Executive power, 200, 310
Article II provisions, 50, 181, 195–196, 200
congressional limitations on, 206–207
regulatory authority, 197–198
See also Presidential powers
Executive privilege, 235–242
Exports taxation, 525–527
Fair Labor Standards Act (FLSA) of 1938, 341,

360, 361, 362, 384–385, 405, 450
Fair Labor Standards Act (FLSA) of 1976, 341
Faithful execution clause, 199, 200
Federal banks, 29, 144–153, 344–348, 349, 527–
528
Federal budget deficit, 280
Federalism, 8, 336–337, 342, 343t
allocation of powers, 337–338
and judicial power in global perspective, 343–
344
Article IV guarantee clause, 96
Article VI supremacy clause, 122
commerce clause and, 358–360. See also
Commerce power
compelling local officials to carry out federal
policy, 373–380
compelling states to carry out federal policy,
367–373
concurrent majorities doctrine, 348
contractual interpretation, 338
cooperative approach, 341, 342t, 360–366,
379
domestic policy preemption examples, 397–
398t
dual approach, 341, 342t. See also Dual
federalism
Eleventh Amendment and state sovereign
immunity, 340, 383–389
endangered animal protection, 389–391
federal funding versus state minimum drinking
ages, 552–555
the framers and, 337–338
gambling regulation, 380–382
global perspective, 336
intergovernmental tax immunity, 344–348,
527–535. See also McCulloch v. Maryland in
the Case Index
Marshall Court and rise of national supremacy,
342–348
minimum wage issues, 341, 361, 362–366
modern dual federalism, 366–383
original constitutional provisions, 339
post–Civil War dual federalism, 355–360
preemption of state laws, 389–404
prohibiting state legislation, 380–382
Roberts Court jurisprudence, 379–383
state foreign policy preemption, 391–404
state immigration policy, 398–404
state regulation of foreign trade, 391–396
state taxation of federal entities, 29, 147,
344–348
Taney Court and states’ rights, 348–355
See also Tenth Amendment
Federalist No. 7, 588
Federalist No. 27, 376, 379
Federalist No. 39, 339, 364, 376, 381
Federalist No. 44, 379, 588, 610
Federalist No. 45, 177, 376, 379, 421
Federalist No. 51, 200, 376–377
Federalist No. 78, 41, 55, 365
The Federalist Papers, 9
Federalists, 9, 60, 144, 517
Federal judges. See Judges; Supreme Court
justices
Federal judicial power constraints. See Judicial
powers, constraints on
Federal judiciary
American legal system, 13f, 14
circuit courts, 59–60
district courts, 59, 60
establishment, 54–58
Judiciary Act of 1789, 54, 58–60
jurisdiction. See Jurisdiction
See also Judicial powers; Supreme Court
Federal police power and commerce regulation,
421–428, 457–458
Federal Register, 197
Federal regulatory authority, 197–198
Federal-state relations. See Federalism
Federal Tort Claims Act, 389
Federal Trade Commission (FTC), 232–233
Ferejohn, John, 51
Field, Stephen J., 123t, 201, 202–203, 520, 623–
624, 629–630, 631, 729
Fifteenth Amendment, 169–170, 171–175, 355–
356, 724
Fifth Amendment, 722–723
due process clause, 458, 617, 723
self-incrimination clause, 542
takings clause, 676. See also Takings clause
issues
FindLaw, 44
First Amendment, 28, 722
Fiscal powers of Congress. See Taxing and
spending power
Fish, Hamilton, 160
Fish Committee, 160
Fish importation ban, 507, 509–511
Fitzgerald, A. Ernest, 245
Fitzsimmons, Morris, 122
Flood-control programs, 699
Ford, Gerald, 193, 194, 258
Foreign affairs
congressional powers, 177–178, 262, 321
economic sanctions, 391–396
executive agreements, 262–263
federalism preemption issues, 391–404
interbranch interactions, 284–333
migratory bird protection treaty and
legislation, 389–391
passport regulation, 108, 198–199, 262, 313–
321
presidential powers, 196, 260–263, 311–321
seized foreign assets, 311–313
state power to regulate immigration, 494–495
See also Tariffs; War and military affairs
Foreign commerce regulation, 406, 565–568. See
also Foreign affairs; Tariffs
Foreign Relations Authorization Act of 2002, 314
Formalism, 51, 265–266, 273
Fortas, Abe, 40, 729
“Four Horsemen of the Apocalypse,” 430–431,
439
Fourteenth Amendment, 121, 356, 724
congressional membership restrictions, 124
enforcement provision, 175
Fourteenth Amendment, due process clause, 585,
607, 617, 724
initial interpretations, 619–625
privacy rights, 674
state eminent domain powers and, 677–678
See also Economic substantive due process
Fourteenth Amendment, equal protections clause
civil rights applications, 458
reapportionment jurisprudence, 98
Fourth Amendment, 32, 722
Fox, Noel, 259
France, 321–333
Franchise taxes, 581
Frankfurter, Felix, 729
congressional investigation jurisprudence,
164–165
Japanese American internment case
(Korematsu), 300–301
on congressional power to remove jurisdiction,
86
on Court opinion assignment, 21
on judicial self-restraint, 79
on ripeness, 95
political questions decision (reapportionment
case), 97, 101–102
presidential powers jurisprudence, 235
search and seizure jurisprudence, 32
Franklin, Benjamin, 56
Freedom from Religion Foundation, 113
Free speech versus free expression, 28
Fuller, Melville Weston, 123t, 205–206, 414–416,
417, 424–425, 521–523, 729
Functionalism, 51, 265–266, 273
Gambling regulation, 380–382, 384

Geneva Conventions, 323
German legal system, 14, 84
German parliamentary system, 182
Gibson, John, 77–79, 81
Ginsburg, Ruth Bader, 729
474–475, 490–493
jury awards opinion, 666–667
on derivative powers, 154
Sebelius opinion, 490–493, 561–562
388
526–527, 561–562
voting rights jurisprudence, 176
war on terrorism jurisprudence, 329, 331
Global perspectives
executive selection, 182
federalism and judicial power, 342–344
judicial review, 84
legal systems, 14
legislator privileges and immunities, 135–141
types of governments, 336
war on terrorism, 322
Goldberg, Arthur J., 729
Goldwater, Barry, 262
Gore, Al, 182, 192
Gorsuch, Neil, 15, 35, 90, 576, 615–616, 729
Government Accountability Office (GAO), 280, 281
Government-induced suits, 110, 113–115
Grain elevator regulation, 626–630
Gramm-Rudman-Hollings Act of 1985, 280–283
Grant, Ulysses S., 226–227
Gravel, Mike, 137, 141, 169–176
Gray, Horace, 699, 729
Great Depression, 359, 429, 608, 650. See also
New Deal legislation
Grier, Robert Cooper, 287–289, 290, 729
Grievance suit standing issues, 110
Guantanamo Bay, 323, 324t, 331–332
Guide to the U.S. Supreme Court, 44
Gulf of Tonkin Resolution of 1964, 286
Gun control issue, 373–379, 464–471
Gun-Free School Zones Act of 1990, 465–471,
472–475
Habeas corpus, 291–295, 332

Haig, Alexander M., Jr., 195
Hall, Kermit L., 619
Hamilton, Alexander
Articles of Confederation revision, 4
Federalist Papers authorship, 9
McCulloch v. Maryland and, 144–145
on commerce power, 406
on contractual obligations, 588
on executive power, 200
on federal taxation powers, 517
on judicial review, 77
on judiciary’s role, 55
on presidential foreign affairs power, 316
on presidential pardon power, 259
on recess appointments, 221
on sovereign immunity, 383
on Supreme Court decision making, 41
on taxing and spending power, 543
presidential powers interpretation, 201
Hancock, John, 9
Harbor Maintenance Tax (HMT), 525–527
Harding, Warren, 650
Harlan, John Marshall (I), 416–417, 422–424, 523–
524, 678, 729
Harlan, John Marshall (II), 101–102, 112–113, 166–
167, 674, 730
Harper, Robert Goodloe, 590
Harrington, James, 49
Harrison, Benjamin, 202
Harrison, William Henry, 197n
Hatch Act of 1940, 95
Hayden, Carl, 194
Health-care law of 2010. See Patient Protection
and Affordable Care Act of 2010
Highway funding, federal policy versus state laws,
552–555
Highway safety regulation, 500
Hill, Sarah Althea, 201, 202
Hirabayashi, Gordon, 298
Hiss, Alger, 160
Holmes, Oliver Wendell, Jr., 730
commerce power jurisprudence, 418, 427–428
economic substantive due process opinion,
639–640, 649–650
New Deal era Court, 429
on judicial self-restraint, 79
on textualism, 29
Hoover, Herbert, 232, 274
House of Representatives, 120–121
criteria for membership, 24, 124
framers’ intention for representation, 121
member selection procedures, 50
presidential impeachment procedure, 192
reapportionment case (Baker v. Carr), 96–102
size of, 121
Speaker of the House, presidential succession,
194
See also Congress; Congressional powers
House Un-American Activities Committee (HUAC),
159–169
Hughes, Charles Evans, 93, 116, 179, 418, 429,
433n, 435–438, 440, 444–447, 609–611, 656–659,
730
Hunt, Ward, 123t, 730
Hylton, Daniel, 517
Ideology and judicial decision making, 33–36. See

also Conservative ideology; Liberalism
Immigration and Nationality Act, 265
Immigration regulation, 398–404, 494–495
Impeachment of judges, 26, 55, 103–108
Impeachment power, 26, 179, 192–193, 226
Imperial presidency, 51
Import taxes, 535–536, 565–568. See also Tariffs
Income tax, 519–525
Independent counsel appointment, 8, 214–220,
283–284
India, 84
Individual mandate, Affordable Care Act, 154,
485–493, 561, 564
In forma pauperis petitions, 15
Inherent powers of Congress, 176–178
Insurance beneficiary designation, 613–616
Insurance companies, regulation of out-of-state
companies, 632–634
Intentionalism (originalism), 24–27
Interbranch interactions, 265
congressional delegation of powers, 266–274
congressional exercise of executive and
judicial powers, 274–284
debates over, 265–266
foreign policy in the Middle East, 311–321
powers over foreign affairs, 284–333
war on terrorism, 321–333
war powers, 285–311
See also Federalism; Separation of
Interest groups and judicial decision making, 41–
42
Intergovernmental tax immunity, 527–535. See
also McCulloch v. Maryland in the Case Index
International perspectives. See Global
perspectives
Internet information resources, 44
Internet sales taxation, 572–577
Interstate Commerce Act of 1887, 406, 417
Interstate Commerce Commission (ICC), 417
Interstate commerce regulation. See Commerce
power
Intrasession recess appointments, 221–226
Investigative power of Congress, 154, 176–177
Iran-Contra affair, 219
Iranian assets seizure, 311–313
Iraq wars, 286
Iredell, James, 518, 730
Ireland, 84
Israel, 136, 182, 198–199
Israeli passport case, 108, 198–199, 262, 313–321
Italy, 14, 84, 182, 321–333
Jackson, Andrew, 153, 348, 349, 599

Jackson, Howell Edmunds, 123t, 520, 730
Jackson, Robert H., 27, 302–303, 307–311, 455–
457, 730
Japanese American internment, 39, 297–304, 323,
333
Japanese court system, 14, 84, 182
Jaworski, Leon, 237
Jay, John, 9, 61, 92, 730
Jefferson, Thomas, 69
election of, 182
Marbury case and, 40, 61–62, 76, 117–118
McCulloch v. Maryland and, 144
noncooperation with congressional
investigation, 236
presidential powers interpretation, 201
request for advisory opinion, 92
“Yazoo lands” controversy and, 589, 593
Jefferson, William, 140
Johnson, Andrew, 85, 193, 226, 242, 292
Johnson, Lyndon, 40, 193, 286
Johnson, Thomas, 123t, 730
Johnson, William, 123t, 730
Jones, Paula, 249, 254
Judges
compensation, 55
conflicts of interest versus due process, 667–
672
federal protections, 55
recusal and potential conflicts of interest, 55
removal of, 26, 55, 103–108
salaries, 60, 116
selection/retention and political independence,
50–51
state courts, 55
Judicial activism, 36–37, 79, 618, 631–632
Judicial appointment power, 56, 196, 221
Judicial attitudes and decision making, 33–36
Judicial bias and conflicts of interest, 667–672
Judicial constraint, 36–37
Judicial decision making. See Supreme Court,
decision making
Judicial powers
Article III provisions, 48, 50
council of revision proposal, 58, 77
federalism and in global perspective, 342–344
review of state court decisions, 69–75
sentencing discretion, 80, 270–273
“separation of powers games,” 51
wartime role, 286
See also Article III of the Constitution; Judicial
review; Jurisdiction
Judicial powers, constraints on, 83–91
advisory opinions, 92–93
Ashwander principles, 116
collusive suits, 93–94
democratic checks, 79–80
individual government actors, 118
judicial self-restraint, 77–79, 116
justiciability, 83, 91–109
mootness, 94–95
political questions, 95–109
ripeness, 95
separation of powers system and, 115–118
sovereign immunity, 383
standing to sue, 83, 109–115
See also Jurisdiction
Judicial review, 54, 60–61
debates and controversies, 75–83
democratic checks, 79–80
English jurisprudence, 76–77
judicial supremacy, 80–81
Marbury v. Madison, 61–69
minority rights and, 82
of state court decisions, 69–75
originalism, 76–77
public opinion, 81–82
self-restraint, 77–79
significance and outcomes, 82–83
See also Supreme Court, decision making
Judicial role conception and decision making, 36–
37
Judicial self-restraint, 77–79, 116
Judicial supremacy, 80–81
Judicial system, 13f, 14. See also Federal
judiciary; Supreme Court
Judiciary Act of 1789, 54, 58–60, 69, 76, 267
Judiciary Act of 1925, 93
Jurisdiction
appellate, 12–13, 60, 83
Article III provisions, 12, 56, 58, 83
congressional removal of, 83–91
constraints on judicial power, 83–91
Judiciary Act of 1789 and, 60
original, 12, 83
Jury awards of monetary damages, 662–667
Justiciability, 83
advisory opinions, 92–93
collusive suits, 93–94
mootness, 94–95
political questions, 95–109
ripeness, 95
standing to sue, 109–115
Kagan, Elena, 730

advisory opinions, 93n
contract clause jurisprudence, 614–615
36
making, 35
standing to sue opinion, 113n
Kavanaugh, Brett M., 730
Kelo, Susette, 706, 712
Kennedy, Anthony, 730
commerce power jurisprudence, 471, 512–513
delegation of powers jurisprudence, 273–274
670, 672
immigration policy jurisprudence, 399–403
36
315–318
privacy rights opinion, 674–675
standing to sue opinion, 115
387
state taxation power opinion, 533–534
562–564
travel ban case, 199
Kennedy, John F., 193, 249
Korean War era, 304–311
Korematsu, Fred, 298, 304
Lacey Act, 507

Lamar, Joseph Rucker, 123t, 730
Lamar, Lucius Quintus Cincinnatus, 123t, 205–
206, 413, 730
Landmarks preservation, 682–686
Landon, Alf, 439
Land ownership redistribution, 702–705
Land use regulation and the takings clause, 681–
695. See also Takings clause issues
Lawyers’ Edition, 43–44
Legal Information Institute, 44
Legalistic theory of judicial decision making, 22
originalism, 24–27
polling other jurisdictions, 32–33
pragmatism, 32
stare decisis, 30–31
structural reasoning, 29–30
textualism and literalism, 27–29
Legislative veto, 8, 30, 54, 118, 208, 274–279
Lewinsky, Monica, 254
LexisNexis, 44
Libel jurisprudence, 140
Liberalism, 618
judicial activism and, 79
36–37
making, 34–37
Supreme Court case selection and, 17
Lincoln, Abraham, 287
Line-item veto, 113–114, 208–213, 266, 273–274
Line Item Veto Act of 1996, 208–213
Literalism, 28–29
Literary Digest, 439n
Livingston, Henry Brockholst, 123t, 730
Loan-sharking regulation, 463
Lottery regulation, 422–425, 605–607
Lucas, David, 690, 695
Lurton, Horace Harmon, 356, 357, 730
Madison, James, 69
Articles of Confederation revision, 4
call for a bill of rights, 9
congressional membership opinion, 127
congressional veto plan and, 122
Constitutional Convention note-taking, 27
council of revision proposal, 58
executive branch organization proposal, 226
Federalist Papers authorship, 9
Marbury case and, 61
on advisory opinions, 92
on commerce power, 406
on contractual obligations, 588
on federal and state powers, 338, 339, 376–
377, 421
on inherent congressional powers, 177
on protecting private rights, 584
on taxing and spending power, 543
separation of powers doctrine, 49
takings clause and, 676
Tenth Amendment and, 359
Magna Carta, 617
Mandamus writs, 60, 62
Mandatory appeals, 12
Mann Act, 421, 425
Manufacturing and interstate commerce, 413–417
Marbury, William, 62, 69
Margarine tax, 536–539
Marijuana regulation, 478–484
Marriage equality issues, 114, 115, 207
Marshall, John, 69, 730
421, 494, 499
confirmed as chief justice, 61
contract clause jurisprudence, 590–592, 595–
599
Court’s contract clause interpretation, 585,
589–599
federalism jurisprudence, 29, 148–152, 342–
348, 528
Marbury, 58, 61–69, 80, 117–118
148–152
on congressional delegation of powers, 267
on enumerated congressional powers, 143
on import tax constitutionality, 565
on judicial review application to states, 74–75
on original jurisdiction, 83
on political questions, 95
on presidential pardon power, 255
on president’s foreign policy powers, 261
on state commercial regulation power, 494
on taxation power as “power to destroy,” 346,
528, 531, 535, 537
state sovereign immunity opinion, 383
Marshall, Thomas R., 81–82
Marshall, Thurgood, 366, 463, 730
as solicitor general, 171
criticism of originalism, 26
NAACP Legal Defense Fund and, 42
on defects of the Constitution, 5
140
Martin, Luther, 590
Matthews, Stanley, 123t, 631, 730
McCarthy, Joseph, 160–161
McCormack, John W., 160, 194
McCreery, William, 128
McCulloch, James, 147, 153
McHenry, James, 122
McKay, James, 215
McKenna, Joseph, 123t, 646, 730
McKinley, John, 123t, 730–731
McLean, John, 123t, 731
McReynolds, James Clark, 230–231, 429, 430,
431, 447–448, 449, 551, 650, 654–655, 731
Meatpacking trust, 418–421
Medicaid expansion, Affordable Care Act, 556–564
Medical marijuana regulation, 478–484
Meese, Edwin, 26
Migratory bird protection, 389–391
Military affairs. See War and military affairs
Military Commissions Act (MCA), 332
Military tribunals or commissions, 292–296, 323,
331–332
Milk price regulation, 651–655
Miller, Samuel Freeman, 204–205, 290, 620–623,
625, 631, 731
Milligan, Lambdin, 291–292, 296
Minimum drinking ages, 552–555
Minimum wage regulation, 341, 360, 361, 362–
366, 450–454, 586, 647–650, 655–660
Mining regulation, 686
Minority representation in Congress, 121
Minority rights, judicial review and, 82
Minton, Sherman, 123t, 206, 309–310, 731
Missouri Compromise of 1820, 349, 351, 355
Monetary damage awards, 662–667
Monson, Diane, 479
Montesquieu, Charles de, 49
Moody, William Henry, 123t, 731
Moore, Alfred, 123t, 731
Mootness, 94–95
Morality regulation, commerce regulation and,
421–428
Morrison, Alexia, 215
Mortgage contract relief, 608–612
Murphy, Walter F., 53
Murphy, William Francis, 301–302, 731
National Association for the Advancement of

Colored People (NAACP) Legal Defense Fund, 42
National Industrial Recovery Act (NIRA) of 1933,
267–269, 433
National Labor Relations Act of 1935, 443–448
National Organization for Women, 476
National Security Act of 1947, 195
Nation-state relations. See Federalism
Native American gambling regulation, 384
Native American treaties and the takings clause,
678n
Naval blockade, 287–290
Nazi saboteurs, 295–297
Necessary and proper clause, 122, 143–154, 339,
341, 347
Nelson, Samuel, 289–290, 731
New Deal legislation, 39, 359, 431
agricultural production regulation, 543–548
commerce regulating power jurisprudence,
417, 428–457
conservative Court versus, 429–439
economic and political contexts, 429–430
economic substantive due process and, 650–
660
liberal Court’s expansion of commerce powers,
448–457
National Industrial Recovery Act, 267–269
Roosevelt’s Court-packing plan, 439–443, 448–
449
543–548
New Jersey Plan, 5t
Nineteenth Amendment, 725
Ninth Amendment, 723
Nixon, Richard
House Un-American Activities Committee and,
160
“imperial presidency” trends, 51
judicial appointments, 39, 361, 613
pardon of, 258
personal relationship with Supreme Court
justice, 40
United States v. Nixon, 76, 236, 237–242
See also Watergate scandal
Nixon, Walter L., Jr., 26, 103, 109
Nondelegation doctrine, 266
Obama, Barack
anti-terrorism, 332
executive agreements, 263
executive orders, 197
recess appointments, 220, 221
signing statements, 53, 199
use of executive privilege, 236
“Obamacare.” See Patient Protection and
Affordable Care Act of 2010
Obiter dicta, 31
O’Connor, Sandra Day, 731
513–514
intergovernmental tax immunity opinion, 529,
531
legislative experience, 124
line-item veto jurisprudence, 212
711
554–555
term limits jurisprudence, 134–135
war on terrorism jurisprudence, 326–329
Office of Management and Budget (OMB), 280
Office of the Independent Counsel, 214, 215
Oklahoma statehood, 356–358
Olney, Richard, 414
Olson, Theodore B., 215, 219
“One person, one vote” principle, 121
Optical business regulation, 660–661
Oral arguments, 19–20, 44
Organic Act of 1801, 61
Original intent, 23t, 24, 25
Originalism, 24–27, 76–77
Original jurisdiction, 12, 83
Original meaning, 23t, 25, 27–28
Original package doctrine, 565
Overtime hours regulation, 360, 362–366, 384,
451–458, 634–646
Oxford Companion to the Supreme Court of the
United States, 44
Oyez Project, 44
Pardon power, 87–88, 196, 255–260

Parliament, British, 119–120, 127
Parliamentary systems, 182
Partisan politics and judicial decision making, 40–
41
Passport policies, 198–199, 313–321
Paterson, William, 123t, 518, 731
Patient Protection and Affordable Care Act of
2010, 19, 38, 41, 207, 379, 484–494, 519n
individual mandate, 154, 485–493, 561, 564
Medicaid expansion, 556–564
Peckham, Rufus Wheeler, 424–425, 633–634,
636–639, 731
Pentagon Papers, 137
Per curiam opinions, 94n
Persian Gulf conflict, 286
Philippines, 84
Pinkney, William, 148
Pitney, Mahlon, 123t, 731
Pocket veto, 208
Police power and commerce regulation, 421–428,
457–458, 494–504
Police power and contract clause issues, 604–607
Political ideology and judicial decision making, 33–
36. See also Conservative ideology; Liberalism
Political questions, 95–96, 129
judge impeachment (Nixon v. United States),
103–108
reapportionment case (Baker v. Carr), 96–102
Politics and judicial decision making, 22, 40–41.
See also Realistic theory of judicial decision
making
Polling other jurisdictions, 24t, 32–33
Port and harbor regulation, 496–499, 525–527
Portugal, 14, 84
Postmaster removal case, 227–232
Powell, Adam Clayton, Jr., 125–126, 130
Powell, Lewis F., Jr., 93, 246–247, 365–366, 731
Power of eminent domain. See Takings clause
issues
Pragmatism, 24t, 32
Precedent. See Stare decisis
Preference-based approaches to judicial decision
making, 33–37
Presentment clause, 208, 277, 279
Presidency, structure of
historical context, 181–182
qualifications, 29, 182–183
removal, 192–193, 226
selection of the president, 182–192. See also
Presidential selection
succession, 193–195
tenure, 193
Presidential immunity, 242–255
Presidential impeachment, 179, 192–193
Presidential influence on the Supreme Court, 40–
41
Presidential powers, 181, 262–263, 291
appointments, 56, 196, 213–226. See also
Appointment power of the president
Article II provisions, 50, 181, 195–196, 200.
See also Article II of the Constitution
congressional delegation of powers, 266–269
congressional limitations on, 206–207
constitutional interpretation, 81
embargoes, 177, 266
enforcement of the law, 207
executive agreements, 262–263
executive orders, 197–198
“executive power” interpretations, 200
executive privilege, 235–242
external affairs, 260–263
faithful execution clause, 199, 200
general grant interpretation, 200, 206
immunity from lawsuits, 242–255
legislative veto and congressional usurpation,
8, 30, 118, 208, 274–279
line-item veto, 113–114, 208–213, 266, 273–
274
mere designation theory, 200, 201, 310
military and foreign affairs, 10, 198, 260–263,
285. See also Foreign affairs; War and military
affairs
pardon, 87–88, 196, 255–260
public communications, 199
removal of administrative officers, 226–235
seizure of foreign assets, 311–313
signing statements, 53, 198–199, 314
special counsel removal, 220
steel mill seizure (Youngstown), 304–310
stewardship theory, 200, 201, 206–207
take care clause, 310
tariffs, 196, 267
tools of, 197
veto. See Veto power
war on terrorism, 321–333
See also War and military affairs
Presidential qualifications, 29, 182–183
Presidential selection, 50, 182–192
Bush v. Gore, 40, 76, 108, 184–192
Electoral College system, 50, 182–184
Presidential succession, 193–195
Presidential term limits, 50, 193
President-legislature interactions. See Interbranch
interactions
President pro tempore of the Senate, 194
Principal versus inferior officers, 213–220
Pritchett, C. Herman, 34
Privacy rights
Griswold, 38
originalist and textualist interpretations, 28
substantive due process, 672, 674–675
Private property rights, 584–585. See also
Contract clause issues; Takings clause issues
Privileges and immunities, 135–141
Probable jurisdiction, 12
Procedural due process, 618
Professional and Amateur Sports Protection Act of
1992 (PASPA), 380–382
Property ownership requirements for suffrage, 96
Property rights, 584–585. See also Contract
clause issues; Takings clause issues
Property seizure under eminent domain. See
Takings clause issues
Prostitution regulation, 421, 425
Proxmire, William, 140, 245
Public access requirements, 687–689
Public communications power of the president,
199
Public opinion and judicial decision making, 38–
40, 81–82
Public school segregation, 75
Public use jurisprudence, takings clause
interpretations, 699–713
Publius, 9
Punitive damages awards, 662–667
Race-aware redistricting, 121n

Racial discrimination, commerce clause
applications, 458–461
Racial segregation, 75
Radioactive waste regulation, 367–373, 464, 555
Raich, Angel, 479
Railroads regulation, 417–418, 500–503, 630–631
Raisin reserve requirement program, 695–699
Ratio decidendi, 31
Reagan, Ronald, 79, 195, 276, 280, 366, 463
Realistic theory of judicial decision making, 22, 33
interest groups, 41–42
partisan politics, 40–41
preference-based approaches, 33–37
public opinion, 38–40
strategic approaches, 37–38
Reapportionment, 96–102, 121
“Reasonable exercise of state power,” 630–634
Recess appointments, 213, 220–226
Reconstruction Acts of 1867, 243
Redistricting plans, 93n, 96–102, 121
Reed, Stanley Forman, 123t, 206, 309–310, 731
Regulatory taxation, 535–543
Rehnquist, William H., 366, 686, 731
Clinton impeachment and, 254
472–475, 482–483, 513–514, 580–581
federalism jurisprudence, 361, 365–366
independent counsel appointment opinion,
214, 216–218
originalist approach to constitutional
interpretation, 26
making, 34–35
political questions opinions, 103, 104–106,
129
312–313
state sovereign immunity jurisprudence, 384
state taxation power jurisprudence, 577, 580–
581
711
553–554
war powers jurisprudence, 296
Religion, free exercise, 175
Religious Freedom Restoration Act of 1993 (RFRA),
80, 81, 175, 274
Religious Land Use and Institutionalized Persons
Act, 80n
Representation, 120, 121
Retirement benefits taxation, 532–535
Rhode Island Charter, 96
Ripeness, 95
Roane, Spencer, 348
Roberts, Brigham H., 124
Roberts, John G., Jr., 731
advisory opinions, 93
Court’s takings clause interpretations, 585
672
36
154
making, 34–35
319–321
Sebelius decision, 20, 38, 154, 379–380, 486–
490, 558–561
558–561
Trump travel ban opinion, 332–333
Roberts, Owen Josephus, 86, 429, 433, 439, 443,
451, 543, 544–547, 652–654, 655, 731
Robinson, Joseph, 451
Rockefeller, Nelson, 194
Rolleston, Moreton, Jr., 462
Roosevelt, Franklin D., 39, 193, 359, 650
conservative Court versus, 429–439
Court-packing plan, 93, 439–443, 448–449
Curtiss-Wright case, 177
election and reelection of, 429
executive branch staffing, 232
Japanese American internment order, 297–298
judicial appointments, 429
military tribunal order, 295–296
on the U.S. Constitution, 2
personal relationship with Supreme Court
justice, 40
radio broadcast excerpts, 441–442
request for advisory opinion, 92
See also New Deal legislation
Roosevelt, Theodore, 193, 200, 249
Rule 10, 15–16
Rule 24, 17
Rule of Four, 15
Russian court system, 14, 84, 342–344
Rutledge, John, 731
Rutledge, Wiley Blount, 123t, 731
Same sex marriage, 114, 115, 674

San Antonio Metropolitan Transit Authority, 341,
361–366
Sanford, Edward Terry, 429, 731
Scalia, Antonin, 686, 731–732
commerce power jurisprudence, 482
672
federalism jurisprudence, 375–377, 379, 396,
403
independent counsel appointment opinion,
214, 218–219
jury awards opinion, 665–666, 674
152
on presidential signing statements, 199
making, 35
320–321
recess appointment opinion, 224–226
693, 710–711
562–564
taxpayer standing to sue opinion, 113
war on terrorism jurisprudence, 329–331, 332
School zone firearms possession, 464–471, 472–
475
Scott, Dredd, 350
Searches and seizures, 32
Search warrants, 77, 140
Second Amendment, 722
Sedition Act of 1798, 179
Segregation of public schools, 75
Senate, 120–121
advice and consent provision, 6, 56, 226
criteria for membership, 24, 124
impeachment power, 26, 103–108
member selection procedures, 50, 120
presidential impeachment trial, 192
president pro tempore, 194
See also Congress; Congressional powers
Sentencing, 80
Sentencing-related legislation, 270–273
Separation of powers/checks and balances
system, 6–8, 48, 49–51
changes over time, 51
congressional exercise of executive and
judicial powers, 274–284. See also Legislative
veto
constitutional vesting clauses, 49–50
constraints on judicial power and, 115–118
contemporary thinking, 51–53
delegation of powers, 266–274
formalist and functionalist approaches, 51,
265–266, 273
origins, 48–49
See also Interbranch interactions
“Separation of powers games,” 51–53
September 11, 2001, terrorist attacks, 286
Seventeenth Amendment, 50, 120, 724–725
Seventh Amendment, 723
Sex discrimination litigation, 476
Sexual violence legislation, 471–476
Shays’s Rebellion, 4, 406
Sherman Anti-Trust Act, 405, 417, 418
Shiras, George, Jr., 424–425, 520, 732
Signing statements, 53, 198–199, 314
Sixteenth Amendment, 94, 524–525, 724
Sixth Amendment, 723
Slavery
Civil War Amendments, 355–356
constitutional provisions and amendments, 6
constitutional “three-fifths” plan, 349, 517
Missouri Compromise, 349, 351, 355
Scott v. Sandford, 242, 350–355
Social Darwinism, 625, 640
Social Security Act of 1935, 548–552
Solicitor general (SG), 16, 40–41
Solid waste regulation, 578–581. See also
Radioactive waste regulation
Sotomayor, Sonia, 732
36
justiciability guidelines, 102n
making, 35
taxing and spending power jurisprudence, 699
travel ban case, 199
Trump travel ban opinion, 333
Souter, David Hackett, 732
474–475
federalism jurisprudence, 378–379, 393–395,
396
political questions opinion, 106, 108
388
war on terrorism jurisprudence, 329
South Africa, 14, 33
Sovereign immunity, 383–389
Spain, 14, 84
Speaker of the House, presidential succession,
194
Special prosecutor or counsel appointment, 214–
220, 237
Speech or debate clause, 135–141
Spencer, Herbert, 625
Spending power of Congress, 516. See also Taxing
and spending power
Sports gambling regulation, 380–382
Standing to sue, 83, 109–115
government-induced suits, 110, 113–115
taxpayer suits, 110–113
Stare decisis, 23t, 30–31
Starr, Kenneth, 219, 254
State admission issue, 356–358
State and local government powers. See
Commerce power; Federalism; State commercial
regulation power; State police powers; State
taxation power; Tenth Amendment; specific
powers
State and municipal bond interest taxation, 529–
532
State capital location issues, 356–358
State commercial regulation power, 494–514
agricultural production regulation, 504–507
alcoholic beverage regulation, 511–514
baitfish importation ban, 507, 509–511
burdens on interstate commerce, 499–514
discrimination against interstate commerce,
504–514
doctrine of selected exclusiveness, 499
dormant or negative commerce clause, 499–
500, 503–504
early jurisprudence, 494–499
grain warehouse regulation, 626–630
immigration regulation, 494–495
optical business regulation, 660–661
port regulation, 496–499
railroad regulation, 500–503, 630–631
“reasonable exercise of state power” test,
630–634
regulating external insurance companies, 632–
634
transportation safety regulation, 500–503
State commodity price regulation, 651–655
State constitutions
eminent domain powers, 677
term limits provisions, 135
State courts, 14
advisory opinions, 92n
judges, 55
judicial review of decisions, 69–75
judicial review powers, 77
State eminent domain powers, 677–678
State-federal relations. See Federalism
State foreign trade regulation, 391–396
State immigration laws, 398–404
State police powers
commerce regulation, 494–504
contract clause issues, 604–607
State redistricting plans, 93n
State regulation of alcoholic beverages, 552–555
State sovereign immunity, 383–389
State taxation power, 29, 147, 344–348, 516, 564
alcoholic beverage regulation, 528
constitutional restraints, 516
e-commerce and, 572–577
foreign imports, 565–568
franchise taxes, 581
intergovernmental tax immunity, 527–535.
See also McCulloch v. Maryland in the Case
Index
interstate commerce, 568–581
protecting intrastate interests, 577–581
restrictions on, 564–581
retirement benefits, 532–535
Stevens, John Paul, 108, 114, 732
474–475, 480–482, 499, 510, 513–514
line-item veto jurisprudence, 211–212
388
state taxation power opinion, 534–535
takings clause jurisprudence, 685–686, 694,
708–709, 712
Stewardship theory of executive power, 200, 201,
206–207
Stewart, Potter, 129, 139, 169, 221, 361, 461,
463, 613, 732
Stone, Harlan Fiske, 30, 156n, 298, 360–361, 429,
433n, 451–458, 500, 501–503, 547–548, 732
Story, Joseph, 71–74, 123t, 148, 176, 337–338,
590, 600, 603–604, 732
Strategic approaches to judicial decision making,
37–38
Stream of commerce doctrine, 418–421
Strong, William, 123t, 732
Structural analysis, 23t, 29–30
Subpoena power, 155
Substantive due process, 585, 607, 617–619
contemporary relevance, 662–675
continuing relevance, 619
economic regulation applications. See
Economic substantive due process
judicial conflicts of interest, 667–672
jury awards of monetary damages, 662–667
personal privacy and dignity, 672, 674–675
Succession Act of 1947, 195
Suffrage jurisprudence, 96
Sugar trust case, 413–417, 438
Sumner, Charles, 355
Supremacy clause, 122, 339, 340, 341, 347, 389
Supreme Court
constraints. See Judicial powers, constraints
on
information resources and reporting systems,
42–45
powers. See Judicial powers
Roosevelt’s Court-packing plan, 439–443, 448–
449
staff, 14–15
Supreme Court, case processing, 10–12
briefs, 15
case selection, 13–15
case selection considerations, 15–17
conference system, 20–21
dissenting and concurring opinions, 21
gatekeepers, 14–15
jurisdiction and routes of appeal, 12–13, 60
opinion assignment and circulation, 21–22
oral arguments, 19–20
written arguments, 17–19
Supreme Court, decision making
amicus curiae briefs and, 41–42. See also
Amicus curiae briefs
congressional influence, 41
executive branch influence, 40–41
interest groups and, 41–42
37
judicial review. See Judicial review
legalistic, 22–33
original intent, 23t
originalism, 24–27, 76–77
original meaning, 23t
polling other jurisdictions, 24t, 32–33
pragmatism, 24t, 32
public opinion and, 38–40, 81–82
realistic or nonlegalistic approaches, 22, 33–
42
stare decisis, 23t, 30–31
strategic approaches, 37–38
structural analysis, 23t, 29–30
textualism, 23t, 27–29
vote shifts or revisions, 38
See also Legalistic theory of judicial decision
making; Liberalism; Realistic theory of judicial
decision making
Supreme Court, powers of. See Judicial powers
Supreme Court case citation systems, 43–44
Supreme Court Compendium: Data, Decisions,
and Developments, 44
Supreme Court database, 44
Supreme Court justices, 728–733
ideology and case selection, 17
number of, 59
making, 33–37
presidential appoint power, 57, 57t
See also Chief justice of the Supreme Court;
Conservative ideology; Liberalism; Supreme
Court, decision making
Sutherland, George, 110, 123t, 177, 233–235,
261, 429, 430, 431, 449, 551, 611–612, 648–649,
732
Swayne, Noah Haynes, 123t, 290, 605, 732
Taft, William Howard, 227, 732

economic substantive due process opinion,
649
lobbying for judicial reform legislation, 93
New Deal era Court, 429
on congressional delegation of powers, 267
on import tax constitutionality, 536
presidential pardon jurisprudence, 255, 256–
257
presidential powers jurisprudence, 228–230
540–542
Taft-Hartley Act of 1947, 305
Take care clause, 310
Takings clause issues, 585, 676
agricultural product reserve requirement
program, 695–699
airspace use, 679–681
defining a “taking,” 678–699
environmental regulations, 690–695
flood control programs, 699
framers’ intentions, 676–677
“just compensation,” 678
landmarks preservation, 682–686
land ownership redistribution, 702–705
mining regulation, 686
public access requirements, 687–689
public use jurisprudence, 699–713
regulatory ordinances, 681–686
state applications, 677–678
urban renewal programs, 699–702, 706–713
Taney, Roger B., 348–349, 355, 599, 732
Court’s contract clause interpretation, 585,
599–604
federalism and states’ rights doctrine, 348–
355
on collusion, 93
on due process, 619
on political questions, 96
Scott v. Sandford opinion, 82, 351–355, 619
state commerce power jurisprudence, 494–
495
Tariffs, 196, 267, 535
Taxation
Articles of Confederation and, 4
as regulatory power, 535–543
congressional power. See Taxing and spending
power
direct (apportioning by population), 516–519
excise taxes, 515, 517, 536–542
intergovernmental tax immunity, 527–535
of exports, 525–527
of imports, 565–568. See also Tariffs
of retirement benefits, 532–535
on imports, 535
on state and municipal bond interest, 529–532
“power to destroy,” 346, 528, 531, 535, 537
presidential tariff-making power, 196
Sixteenth Amendment, 524–525
slaves as “three-fifths” of a person, 349, 517
state power. See State taxation power
unemployment compensation programs, 548–
552
See also Tariffs; Taxing and spending power
Tax credits, 113n
Tax Equity and Fiscal Responsibility Act of 1982,
529–531
Tax exemptions, 535
Taxing and spending power, 515–516
Affordable Care Act and, 519n, 556–564
Article I provisions, 515–516
child labor regulation, 539–542
direct taxes, 516–519
excise taxes, 515, 517, 536–542
federal funding versus state minimum drinking
ages, 552–555
federal-state fiscal tensions, 552–564
general welfare applications, 543–564
income tax, 519–525
line item veto, 113–114, 208
New Deal era agricultural production
regulation, 543–548
protecting intrastate interests, 577–581
regulatory applications, 535–543
Sixteenth Amendment, 524–525
Social Security cases, 548–552
taxes on exports, 525–527
See also State taxation power; Taxation
Taxpayers’ standing to sue, 110–113
Teapot Dome scandal, 155–156
Tennessee Valley Authority (TVA), 430
Tenth Amendment, 177, 178, 339–340, 341, 359,
723
commerce power interpretation, 412, 454,
458, 475
cooperative federalism interpretation, 360.
See also Cooperative federalism
Darby and, 360
enclave interpretation, 331, 339, 342, 347,
359, 360, 361, 458
Taney’s interpretation, 349
term limits jurisprudence, 132, 135
See also Dual federalism
Tenure of Office Act of 1867, 226–227
Term limits, congressional, 23t, 129–135
Term limits, presidential, 50
Terry, David S., 201, 202–203
Test Oath Law of 1862, 124
Textualism, 23t, 25, 27–29
Third Amendment, 722
Thirteenth Amendment, 142, 355, 724
Thomas, Clarence, 36, 463, 732
commerce power jurisprudence, 471, 482–
483, 513–514, 578–580
672
federalism jurisprudence, 378, 396, 403
152
originalist approach to constitutional
interpretation, 26
making, 35
318–319
state taxation power jurisprudence, 576, 578–
580
562–564
Thomas, Philip, 124
Thompson, Smith, 123t, 732
Thornton, Ray, 130
Todd, Thomas, 732
Tonkin Gulf Resolution of 1964, 286
Tort law, 389
Train Limit Law, 500–503
Transportation safety regulation, 500–503
Travel ban, 199, 332–333
Treaties and the takings clause, 678n
Treaty-making power, 4, 196, 261, 262
Treaty of Paris, 4
Trimble, Robert, 123t, 732
Tripp, Linda, 254
Truman, Harry, 154, 235, 249, 305, 313
Trump, Donald
Affordable Care Act and, 207
anti-terrorism, 332
civil suits pending against, 255
executive orders, 197–198
marijuana policy, 484
recess appointments, 220n
tariffs, 196
travel ban, 199, 332–333
Twelfth Amendment, 183–184, 723
Twentieth Amendment, 725
Twenty-first Amendment, 511–514, 725–726
Twenty-second Amendment, 193, 726
Twenty-third Amendment, 726
Twenty-fourth Amendment, 726
Twenty-fifth Amendment, 194, 726–727
Twenty-sixth Amendment, 727
Twenty-seventh Amendment, 727
Twitter, 199
Tyler, John, 96
Unemployment tax, 548–552

Uniform Code of Military Justice, 295n
United Kingdom, 84, 322
Urban renewal related takings, 699–702, 706–713
U.S. Congress. See Congress; Congressional
powers; House of Representatives; Senate
U.S. Constitution, 2, 716–727
amending process, 6
as a living document, 6, 26
Beard’s economic interpretation, 5, 584–585
congressional interpretation, 178–179
contract between states and federal
government, 338
historical development and ratification, 2–6, 8–
9, 722. See also Constitutional Convention
slaves and the “three-fifths” plan, 349
supremacy clause, 122
See also specific articles or amendments
U.S. Constitution, fundamental principles, 6
federalism, 8
individual rights and liberties, 8–9
separation of powers/checks and balances, 6–
8, 48, 49–51
See also Federalism; Separation of
U.S. House of Representatives. See House of
Representatives
U.S. Law Week, 43–44
U.S. Reports, 43–44, 351n
U.S. Senate. See Senate
U.S. solicitor general (SG), 16, 40–41
U.S. Supreme Court. See Supreme Court
Van Buren, Martin, 599n

Van Devanter, Willis, 93, 123t, 157–158, 429, 430,
431, 448, 449, 650, 732
Veto power, 208–213
legislative veto, 8, 30, 118, 208, 274–279
line-item veto, 113–114, 208–213, 266, 273–
274
pocket veto, 208
proposed congressional veto over state
legislation, 122
Vice presidency
presidential succession, 193
qualifications, 183
selection, 182
Vinson, Frederick Moore, 123t, 206, 304, 309–310,
732
Violence Against Women Act of 1994, 471–476
Virginia Plan, 4, 5t, 55, 56, 120, 122
Virtual representation, 119–120
Voting rights, 96, 169–175, 355–356
Voting Rights Act of 1965, 170–175
Wage regulation. See Minimum wage regulation;

Overtime hours regulation
Wagner Act (National Labor Relations Act of
1935), 443–448
Waite, Morrison Remick, 123t, 606–607, 627–630,
631, 660, 732
Wallace, George, 75
Walsh, Lawrence E., 219
War and military affairs, 285–286
Articles of War, 295n
Civil War era, 286–295
congressional powers, 262, 285–286
interbranch interactions, 275, 285–311
Japanese American internment (Korematsu),
39
judicial role, 286
Korean War era, 304–311
military tribunal or commission authority, 292–
296, 323, 331–332
naval blockade (Prize Cases), 287–290
post-9/11 Authorization for Use of Military
Force (AUMF), 286, 323, 325–332
presidential powers, 196, 198, 260–261, 285.
See also Presidential powers
Uniform Code of Military Justice, 295n
World War II, 295–304
War on terrorism, 286, 321–333
War Powers Resolution of 1973, 275, 286
Warren, Earl, 612, 732
congressional investigation jurisprudence,
163–164, 176
congressional membership opinion, 126–129
Court’s ideological orientation, 17, 34–35
on effectiveness of oral arguments, 19
on justiciability, 91–92
standing to sue opinion, 111–112
voting rights jurisprudence, 172–173, 175
Washington, Bushrod, 123t, 732
Washington, George, 144, 182, 236, 255
Waste disposal regulation, 367–373, 555
Watergate scandal, 169, 215, 220, 237–238, 242,
245, 258–259. See also Nixon, Richard
Watkins, John T., 161–162
Wayne, James Moore, 123t, 290, 351, 733
Webb-Kenyon Act, 511–514
Webster, Daniel, 147, 408, 594, 599, 600, 601
Weddington, Sarah, 19
Weingast, Barry, 51
Westlaw, 44
Wheeler, Burton, 440
White, Byron, 733
Fourth Amendment jurisprudence, 32
legislative veto opinion, 275, 278–279
Roe v. Wade discussion, 19
separation of powers jurisprudence, 30, 275,
278–279, 283
139
537–539
White, Edward Douglass, 123t, 733
Whittaker, Charles Evans, 169, 733
Wilson, James, 517n, 733
Wilson, Woodrow, 154
Women’s and children’s minimum wages, 647–
650, 655
Women’s working hours regulation, 641–646
Woodbury, Levi, 123t, 733
Woods, William B., 123t, 733
Work hours regulation, 360, 362–366, 384, 451–
458, 634–646
World War II era, 295–304
Writs of certification, 12
Writs of certiorari, 12–13
Writs of mandamus, 60, 62
Written arguments, 17–19. See also Briefs
“Yazoo lands” controversy, 589–593

Zivotofsky, Menachem Binyamin, 314

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Chronological Table of Cases

An Introduction to the U.S. Constitution

The Road to the U.S. Constitution

Processing Supreme Court Cases

Structuring the Federal System

Origins of the Separation of Powers/Checks

Establishment of the Federal Judiciary

Marbury v. Madison (1803)

Ex parte McCardle (1869)

Article I: Historical Overview

Powell v. McCormack (1969)

The Structure of the Presidency

Bush v. Gore (2000)

Clinton v. City of New York (1998)

Debates over Interbranch Interactions

Mistretta v. United States (1989)

Prize Cases (1863)

Allocating Government Power

The Framers and Federalism

The Doctrinal Cycle of Nation–State

McCulloch v. Maryland (1819)

Alden v. Maine (1999)

State of Missouri v. Holland (1920)

Foundations of the Commerce Power

Gibbons v. Ogden (1824)

A. L. A. Schechter Poultry Corp. v.

Heart of Atlanta Motel, Inc. v. United

United States v. Lopez (1995)

Cooley v. Board of Wardens (1852)

The Constitutional Power to Tax and Spend

Pollock v. Farmers’ Loan & Trust Co.

United States v. United States Shoe

South Carolina v. Baker (1988)

McCray v. United States (1904)

United States v. Butler (1936)

Economic Liberties and Individual Rights

The Framers and the Contract Clause

Fletcher v. Peck (1810)

Proprietors of Charles River Bridge v.

Sveen v. Melin (2018)

The Slaughterhouse Cases (1873)