When members of Congress delegate power to the executive branch it

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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.

Annotations

The Supreme Court has sometimes declared categorically that “the legislative power of Congress cannot be delegated,” and on other occasions has recognized more forthrightly, as Chief Justice Marshall did in 1825, that, although Congress may not delegate powers that “are strictly and exclusively legislative,” it may delegate “powers which [it] may rightfully exercise itself.” The categorical statement has never been literally true, the Court having upheld the delegation at issue in the very case in which the statement was made. The Court has long recognized that administration of the law requires exercise of discretion, and 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.” The real issue is where to draw the line. Chief Justice Marshall recognized “that there is some difficulty in discerning the exact limits,” and that “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.” Accordingly, the Court’s solution has been to reject delegation challenges in all but the most extreme cases, and to accept delegations of vast powers to the President or to administrative agencies.

With the exception of a brief period in the 1930s when the Court was striking down New Deal legislation on a variety of grounds, the Court has consistently upheld grants of authority that have been challenged as invalid delegations of legislative power.

The modern doctrine may be traced to the 1928 case, J. W. Hampton, Jr. & Co. v. United States, in which the Court, speaking through Chief Justice Taft, upheld Congress’s delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries. Although formally invoking the contingency theory, the Court’s opinion also looked forward, emphasizing that in seeking the cooperation of another branch Congress was restrained only according to “common sense and the inherent necessities” of the situation. This vague statement was elaborated somewhat in the statement that the Court would sustain delegations whenever Congress provided an “intelligible principle” to which the President or an agency must conform.

As characterized by the Court, the delegations struck down in 1935 in Panama Refining and Schechter were not only broad but unprecedented. Both cases involved provisions of the National Industrial Recovery Act. At issue in Panama Refining was a delegation to the President of authority to prohibit interstate transportation of what was known as “hot oil”—oil produced in excess of quotas set by state law. The problem was that the Act provided no guidance to the President in determining whether or when to exercise this authority, and required no finding by the President as a condition of exercise of the authority. Congress “declared no policy, . . . established no standard, [and] laid down no rule,” but rather “left the matter to the President without standard or rule, to be dealt with as he pleased.” At issue in Schechter was a delegation to the President of authority to promulgate codes of fair competition that could be drawn up by industry groups or prescribed by the President on his own initiative. The codes were required to implement the policies of the Act, but those policies were so general as to be nothing more than an endorsement of whatever might be thought to promote the recovery and expansion of the particular trade or industry. The President’s authority to approve, condition, or adopt codes on his own initiative was similarly devoid of meaningful standards, and “virtually unfettered.” This broad delegation was “without precedent.” The Act supplied “no standards” for any trade or industry group, and, unlike other broad delegations that had been upheld, did not set policies that could be implemented by an administrative agency required to follow “appropriate administrative procedure.” “Instead of prescribing rules of conduct, [the Act] authorize[d] the making of codes to prescribe them.”

Since 1935, the Court has not struck down a delegation to an administrative agency. Rather, the Court has approved, “without deviation, Congress’s ability to delegate power under broad standards.” The Court has upheld, for example, delegations to administrative agencies to determine “excessive profits” during wartime, to determine “unfair and inequitable distribution of voting power” among securities holders, to fix “fair and equitable” commodities prices, to determine “just and reasonable” rates, and to regulate broadcast licensing as the “public interest, convenience, or necessity require.” During all this time the Court “has not seen fit . . . to enlarge in the slightest [the] relatively narrow holdings” of Panama Refining and Schechter. Again and again, the Court has distinguished the two cases, sometimes by finding adequate standards in the challenged statute, sometimes by contrasting the vast scope of the power delegated by the National Industrial Recovery Act, and sometimes by pointing to required administrative findings and procedures that were absent in the NIRA. The Court has also relied on the constitutional doubt principle of statutory construction to narrow interpretations of statutes that, interpreted broadly, might have presented delegation issues.

Concerns in the scholarly literature with respect to the scope of the delegation doctrine have been reflected in the opinions of some of the Justices. Nonetheless, the Court’s decisions continue to approve very broad delegations, and the practice will likely remain settled.

The fact that the Court has gone so long without holding a statute to be an invalid delegation does not mean that the nondelegation doctrine is a dead letter. The long list of rejected challenges does suggest, however, that the doctrine applies only to standard-less delegations of the most sweeping nature.

Application of two distinct constitutional principles contributed to the development of the nondelegation doctrine: separation of powers and due process. A rigid application of separation of powers would prevent the lawmaking branch from divesting itself of any of its power and conferring it on one of the other branches. But the doctrine is not so rigidly applied as to prevent conferral of significant authority on the executive branch. In J. W. Hampton, Jr. & Co. v. United States, Chief Justice Taft explained the doctrine’s import in the delegation context. “The Federal Constitution . . . divide[s] the governmental power into three branches. . . . [I]n carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination.”

In Loving v. United States, the Court distinguished between its usual separation-of-powers doctrine—emphasizing arrogation of power by a branch and impairment of another branch’s ability to carry out its functions—and the delegation doctrine, “another branch of our separation of powers jurisdiction,” which is informed not by the arrogation and impairment analyses but solely by the provision of standards. This confirmed what had long been evident— that the delegation doctrine is unmoored to traditional separation-of-powers principles.

The second principle underlying delegation law is a due process conception that undergirds delegations to administrative agencies. The Court has contrasted the delegation of authority to a public agency, which typically is required to follow established procedures in building a public record to explain its decisions and to enable a reviewing court to determine whether the agency has stayed within its ambit and complied with the legislative mandate, with delegations to private entities, which typically are not required to adhere to such procedural safeguards.

Two theories suggested themselves to the early Court to justify the results of sustaining delegations. The Chief Justice alluded to the first in Wayman v. Southard. He distinguished between “important” subjects, “which must be entirely regulated by the legislature itself,” and subjects “of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.” While his distinction may be lost, the theory of the power “to fill up the details” remains current. A second theory, formulated even earlier, is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation.

—In finding a power to “fill up the details,” the Court in Wayman v. Southard rejected the contention that Congress had unconstitutionally delegated power to the federal courts to establish rules of practice. Chief Justice Marshall agreed that the rulemaking power was a legislative function and that Congress could have formulated the rules itself, but he denied that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe rules of procedure for the lower federal courts.

Filling up the details of statutes has long been the standard. For example, the Court upheld a statute requiring the manufacturers of oleomargarine to have their packages “marked, stamped and branded as the Commissioner of Internal Revenue . . . shall prescribe,” rejecting a contention that the prosecution was not for violation of law but for violation of a regulation. “The criminal of-fence,” said Chief Justice Fuller, “is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail.” Kollock was not the first such case, and it was followed by a multitude of delegations that the Court sustained. In one such case, for example, the Court upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.

—An entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended, or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of “filling up the details” of a statute, authority for it must be sought under some other theory.

Contingent delegation was approved in an early case, The Brig Aurora, upholding the revival of a law upon the issuance of a presidential proclamation. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices that violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that “we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct.”

The theory was used again in Field v. Clark, where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities “for such time as he shall deem just” if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions that “he may deem to be reciprocally unequal and unjust.” In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents, which demonstrated that “in the judgment of the legislative branch of the government, it is often desirable, if not essential, . . . to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations,” and (2) that the act did “not, in any real sense, invest the President with the power of legislation. . . . Congress itself prescribed, in advance, the duties to be levied, . . . while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. . . . He had no discretion in the premises except in respect to the duration of the suspension so ordered.” By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922 whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President.

—Implicit in the concept of filling in the details is the idea that there is some intelligible guiding principle or framework to apply. Indeed, the requirement that Congress set forth “intelligible principles” or “standards” to guide as well as limit the agency or official in the performance of its assigned task has been critical to the Court’s acceptance of legislative delegations. In theory, the requirement of standards serves two purposes: “it insures 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 . . . , [and] it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.”

The only two instances in which the Court has found an unconstitutional delegation to a public entity have involved grants of discretion that the Court found to be unbounded, hence standardless. Thus, in Panama Refining Co. v. Ryan, the President was authorized to prohibit the shipment in interstate commerce of “hot oil”— oil produced in excess of state quotas. Nowhere—not in the language conferring the authority, nor in the “declaration of policy,” nor in any other provision—did the statute specify a policy to guide the President in determining when and under what circumstances to exercise the power. Although the scope of granted authority in Panama Refining was narrow, the grant in A. L. A. Schechter Poultry Corp. v. United States was sweeping. The National Industrial Recovery Act devolved on the executive branch the power to formulate codes of “fair competition” for all industry in order to promote “the policy of this title.” The policy was “to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, . . . and otherwise to rehabilitate industry. . . .” Though much of the opinion is written in terms of the failure of these policy statements to provide meaningful standards, the Court was also concerned with the delegation’s vast scope—the “virtually unfettered” discretion conferred on the President of “enacting laws for the government of trade and industry throughout the country.”

Typically the Court looks to the entire statute to determine whether there is an intelligible standard to guide administrators, and a statute’s declaration of policies or statement of purposes can provide the necessary guidance. If a statute’s declared policies are not open-ended, then a delegation of authority to implement those policies can be upheld. For example, in United States v. Rock Royal Co-operative, Inc., the Court contrasted the National Industrial Recovery Act’s statement of policy, “couched in most general terms” and found lacking in Schechter, with the narrower policy that an agricultural marketing law directed the Secretary of Agriculture to implement. Similarly, the Court found ascertainable standards in the Emergency Price Control Act’s conferral of authority to set prices for commodities if their prices had risen in a manner “inconsistent with the purposes of this Act.”

The Court has been notably successful in finding standards that are constitutionally adequate. Standards have been ascertained to exist in such formulations as “just and reasonable,” “public interest,” “public convenience, interest, or necessity,” “unfair methods of competition,” and “requisite to protect the public health [with] an adequate margin of safety.” Thus, in National Broadcasting Co. v. United States, the Court found that the discretion conferred on the Federal Communications Commission to license broadcasting stations to promote the “public interest, convenience, or necessity” conveyed a standard “as complete as the complicated factors for judgment in such a field of delegated authority permit.” Yet the regulations upheld were directed to the contractual relations between networks and stations and were designed to reduce the effect of monopoly in the industry, a policy on which the statute was silent. When, in the Economic Stabilization Act of 1970, Congress authorized the President “to issue such orders and regulations as he may deem appropriate to stabilize prices, rents, wages, and salaries,” and the President responded by imposing broad national controls, the lower court decision sustaining the action was not even appealed to the Supreme Court. Explicit standards are not even required in all situations, the Court having found standards reasonably implicit in a delegation to the Federal Home Loan Bank Board to regulate banking associations.

The Court has emphatically rejected the idea that administrative implementation of a congressional enactment may provide the intelligible standard necessary to uphold a delegation. The Court’s decision in Lichter v. United States could be read as approving of a bootstrap theory, the Court in that case having upheld the validity of a delegation of authority to recover “excessive profits” as applied to profits earned prior to Congress’s incorporation into the statute of the administrative interpretation. In Whitman v. American Trucking Associations, however, the Court asserted that Lichter mentioned agency regulations only “because a subsequent Congress had incorporated the regulations into a revised version of the statute.” “We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute,” the Court concluded.

Even in “sweeping regulatory schemes” that affect the entire economy, the Court has “never demanded . . . that statutes provide a ‘determinate criterion’ for saying ‘how much [of the regulated harm] is too much.’” Thus Congress need not quantify how “imminent” is too imminent, how “necessary” is necessary enough, how “hazardous” is too hazardous, or how much profit is “excess.” Rather, discretion to make such determinations may be conferred on administrative agencies.

Although Congress must ordinarily provide some guidance that indicates broad policy objectives, there is no general prohibition on delegating authority that includes the exercise of policy judgment. In Mistretta v. United States, the Court approved congressional delegations to the United States Sentencing Commission, an independent agency in the judicial branch, to develop and promulgate guidelines binding federal judges and cabining their discretion in sentencing criminal defendants. Although the Court enumerated the standards Congress had provided, it admitted that significant discretion existed with respect to making policy judgments about the relative severity of different crimes and the relative weight of the characteristics of offenders that are to be considered, and stated forthrightly that delegations may carry with them “the need to exercise judgment on matters of policy.” A number of cases illustrate the point. For example, the Court has upheld complex economic regulations of industries in instances in which the agencies had first denied possession of such power, had unsuccessfully sought authorization from Congress, and had finally acted without the requested congressional guidance. The Court has also recognized that, when Administrations change, new officials may have sufficient discretion under governing statutes to change or even reverse agency policies.

It seems therefore reasonably clear that the Court does not require much in the way of standards from Congress. The minimum upon which the Court usually insists is that Congress use a delegation that “sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.” Where the congressional standards are combined with requirements of notice and hearing and statements of findings and considerations by the administrators, so that judicial review under due process standards is possible, the constitutional requirements of delegation have been fulfilled. This requirement may be met through the provisions of the Administrative Procedure Act, but where that Act is inapplicable or where the Court sees the necessity for exceeding its provisions, due process can supply the safeguards of required hearing, notice, supporting statements, and the like.

—In exercising a delegated power the President or another officer may effectively suspend or rescind a law passed by Congress, or may preempt state law. A rule or regulation properly promulgated under authority received from Congress is law, and under the supremacy clause of the Constitution can preempt state law. Similarly, a valid regulation can supersede a federal statute. Early cases sustained contingency legislation giving the President power, upon the finding of certain facts, to revive or suspend a law, and the President’s power to raise or lower tariff rates equipped him to alter statutory law. The Court in Opp Cotton Mills v. Administrator upheld Congress’s decision to delegate to the Wage and Hour Administrator of the Labor Department the authority to establish a minimum wage in particular industries greater than the statutory minimum but no higher than a prescribed figure. Congress has not often expressly addressed the issue of repeals or supersessions, but in authorizing the Supreme Court to promulgate rules of civil and criminal procedure and of evidence it directed that such rules supersede previously enacted statutes with which they conflict.

—That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was asserted in United States v. Curtiss-Wright Corporation. There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice Sutherland for the Court proclaimed that the President is largely free of the constitutional constraints imposed by the nondelegation doctrine when he acts in foreign affairs. Sixty years later, the Court, relying on CurtissWright, reinforced such a distinction in a case involving the President’s authority over military justice. Whether or not the President is the “sole organ of the nation” in its foreign relations, as asserted in Curtiss-Wright, a lesser standard of delegation is applied in areas of power shared by the President and Congress.

—Superintendence of the military is another area in which shared power with the President affects delegation doctrine. The Court in Loving v. United States approved a virtually standard-less delegation to the President.

Article 118 of the Uniform Code of Military Justice (UCMJ) provides for the death penalty for premeditated murder and felony murder for persons subject to the Act, but the statute does not comport with the Court’s capital punishment jurisdiction, which requires the death sentence to be cabined by standards so that the sentencing authority must narrow the class of convicted persons to be so sentenced and must justify the individual imposition of the sentence. However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed.

The Court in Loving held that Congress could delegate to the President the authority to prescribe standards for the imposition of the death penalty—Congress’s power under Article I, § 8, cl. 14, is not exclusive—and that Congress had done so in the UCMJ by providing that the punishment imposed by a court-martial may not exceed “such limits as the President may prescribe.” Acknowledging that a delegation must contain some “intelligible principle” to guide the recipient of the delegation, the Court nonetheless held this not to be true when the delegation was made to the President in his role as Commander-in-Chief. “The same limitations on delegation do not apply” if the entity authorized to exercise delegated authority itself possesses independent authority over the subject matter. The President’s responsibilities as Commander-in-Chief require him to superintend the military, including the courts-martial, and thus the delegated duty is interlinked with duties already assigned the President by the Constitution.

—Beginning in the Nation’s early years, Congress has enacted hundreds of statutes that contained provisions authorizing state officers to enforce and execute federal laws. Challenges to the practice have been uniformly rejected. Although the Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the propriety of authorizing them to act if they chose. When, in the Selective Draft Law Cases, the contention was made that the 1917 statute authorizing a military draft was invalid because of its delegations of duties to state officers, the argument was rejected as “too wanting in merit to require further notice.” Congress continues to empower state officers to act. Presidents who have objected have done so not on delegation grounds, but rather on the basis of the Appointments Clause.

—The Court has upheld statutory delegations to private persons in the form of contingency legislation. It has upheld, for example, statutes providing that restrictions upon the production or marketing of agricultural commodities are to become operative only upon a favorable vote by a prescribed majority of those persons affected. The Court’s rationale has been that such a provision does not involve any delegation of legislative authority, because Congress has merely placed a restriction upon its own regulation by withholding its operation unless it is approved in a referendum.

The Court has also upheld statutes that give private entities actual regulatory power, rather than that merely make regulation contingent on such entities’ approval. The Court, for example, upheld a statute that delegated to the American Railway Association, a trade group, the authority to determine the standard height of draw bars for freight cars and to certify the figure to the Interstate Commerce Commission, which was required to accept it. The Court simply cited Buttfield v. Stranahan, in which it had sustained a delegation to the Secretary of the Treasury to promulgate minimum standards of quality and purity for imported tea, as a case “completely in point” and resolving the issue without need of further consideration. Similarly, the Court had enforced statutes that gave legal effect to local customs of miners with respect to claims on public lands.

The Court has struck down delegations to private entities, but not solely because they were to private entities. In Schechter, it condemned the involvement of private trade groups in the drawing up of binding codes of competition in conjunction with governmental agencies, but the Court’s principal objection was to the statute’s lack of adequate standards. In Carter v. Carter Coal Co., the Court struck down the Bituminous Coal Conservation Act in part because the statute penalized persons who failed to observe minimum wage and maximum hour regulations drawn up by prescribed majorities of coal producers and coal employees. But the problem for the Court apparently was not so much that the statute delegated to private entities as that it delegated to private entities whose interests were adverse to the interests of those regulated, thereby denying the latter due process. And several later cases have upheld delegations to private entities.

Even though the Court has upheld some delegations to private entities by reference to cases involving delegations to public agencies, some uncertainty remains as to whether identical standards apply in the two situations. Schechter contrasted the National Industrial Recovery Act’s broad and virtually standardless delegation to the President, assisted by private trade groups, with other broad delegations of authority to administrative agencies, characterized by the Court as bodies of experts “required to act upon notice and hearing,” and further limited by the requirement that binding orders must be “supported by findings of fact which in turn are sustained by evidence.” The absence of these procedural protections, designed to ensure fairness—as well as the possible absence of impartiality identified in Carter Coal—could be cited to support closer scrutiny of private delegations. Although the Court has emphasized the importance of administrative procedures in upholding broad delegations to administrative agencies, it has not, since Schechter and Carter Coal, relied on the distinction to strike down a private delegation.

The Court has strongly implied that the same principles govern the validity of a delegation regardless of the subject matter of the delegation. “[A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.” Holding that “the delegation of discretionary authority under Congress’s taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges,” the Court explained in Skinner v. Mid-America Pipeline Company that there was “nothing in the placement of the Taxing Clause” in Article I, § 8 that would distinguish it, for purposes of delegation, from the other powers enumerated in that clause. Thus, the test in the taxing area is the same as for other areas—whether the statute has provided the administrative agency with standards to guide its actions in such a way that a court can determine whether the congressional policy has been followed.

This does not mean that Congress may delegate its power to determine whether taxes should be imposed. What was upheld in Skinner was delegation of authority to the Secretary of Transportation to collect “pipeline safety user fees” for users of natural gas and hazardous liquid pipelines. “Multiple restrictions” placed on the Secretary’s discretion left no doubt that the constitutional requirement of an intelligible standard had been met. Cases involving the power to impose criminal penalties, described below, further illustrate the difference between delegating the underlying power to set basic policy—whether it be the decision to impose taxes or the decision to declare that certain activities are crimes—and the authority to exercise discretion in implementing the policy.

—The Court has confessed that its “cases are not entirely clear as to whether more specific guidance is in fact required” for delegations relating to the imposition of criminal sanctions. It is clear, however, that some essence of the power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives in part from the time-honored principle that penal statutes are to be strictly construed, and that no one should be “subjected to a penalty unless the words of the statute plainly impose it.” Both Schechter and Panama Refining —the only two cases in which the Court has invalidated delegations—involved broad delegations of power to “make federal crimes of acts that never had been such before.” Thus, Congress must provide by statute that violation of the statute’s terms—or of valid regulations issued pursuant thereto—shall constitute a crime, and the statute must also specify a permissible range of penalties. Punishment in addition to that authorized in the statute may not be imposed by administrative action.

However, once Congress has exercised its power to declare certain acts criminal, and has set a range of punishment for violations, authority to flesh out the details may be delegated. Congress may provide that violation of valid administrative regulations shall be punished as a crime. For example, the Court has upheld a delegation of authority to classify drugs as “controlled substances,” and thereby to trigger imposition of criminal penalties, set by statute, that vary according to the level of a drug’s classification by the Attorney General.

Congress may also confer on administrators authority to prescribe criteria for ascertaining an appropriate sentence within the range between the maximum and minimum penalties that are set by statute. The Court upheld Congress’s conferral of “significant discretion” on the Sentencing Commission to set binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants. Although the Commission was given significant discretionary authority “to determine the relative severity of federal crimes, . . . assess the relative weight of the offender characteristics listed by Congress, . . . to determine which crimes have been punished too leniently and which too severely, [and] which types of criminals are to be considered similar,” Congress also gave the Commission extensive guidance in the Act, and did not confer authority to create new crimes or to enact a federal death penalty for any offense.

—Some Justices have argued that delegations by Congress of power to affect the exercise of “fundamental freedoms” by citizens must be closely scrutinized to require the exercise of a congressional judgment about meaningful standards. The only pronouncement in a majority opinion, however, is that, even with regard to the regulation of liberty, the standards of the delegation “must be adequate to pass scrutiny by the accepted tests.” The standard practice of the Court has been to interpret the delegation narrowly so as to avoid constitutional problems.

Perhaps refining the delegation doctrine, at least in cases where Fifth Amendment due process interests are implicated, the Court held that a government agency charged with the efficient administration of the executive branch could not assert the broader interests that Congress or the President might have in barring lawfully resident aliens from government employment. The agency could assert only those interests Congress charged it with promoting, and if the action could be justified by other interests, the office with responsibility for promoting those interests must take the action.

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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.

Annotations

No provision of the Constitution expressly authorizes either house of Congress to make investigations and exact testimony to the end that it may exercise its legislative functions effectively and advisedly. But such a power had been frequently exercised by the British Parliament and by the Assemblies of the American Colonies prior to the adoption of the Constitution. It was asserted by the House of Representatives as early as 1792 when it appointed a committee to investigate the defeat of General St. Clair and his army by the Indians in the Northwest and empowered it to “call for such persons, papers, and records, as may be necessary to assist their inquiries.”

The Court has long since accorded its agreement with Congress that the investigatory power is so essential to the legislative function as to be implied from the general vesting of legislative power in Congress. “We are of the opinion,” wrote Justice Van Devanter for a unanimous Court, “that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.”

And, in a 1957 opinion generally hostile to the exercise of the investigatory power in the post-War years, Chief Justice Warren did not question the basic power. “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.” Justice Harlan summarized the matter in 1959. “The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”

Broad as the power of inquiry is, it is not unlimited. The power of investigation may properly be employed only “in aid of the legislative function.” Its outermost boundaries are marked, then, by the outermost boundaries of the power to legislate. In principle, the Court is clear on the limitations, clear “that neither house of Congress possesses a ‘general power of making inquiry into the private affairs of the citizen’; that the power actually possessed is limited to inquiries relating to matters of which the particular house ‘has jurisdiction’ and in respect of which it rightfully may take other action; that if the inquiry relates to ‘a matter wherein relief or redress could be had only by a judicial proceeding’ it is not within the range of this power, but must be left to the courts, conformably to the constitutional separation of governmental powers; and that for the purpose of determining the essential character of the inquiry recourse must be had to the resolution or order under which it is made.”

In practice, much of the litigated dispute has been about the reach of the power to inquire into the activities of private citizens; inquiry into the administration of laws and departmental corruption, while of substantial political consequence, has given rise to fewer judicial precedents.

For many years the investigating function of Congress was limited to inquiries into the administration of the Executive Department or of instrumentalities of the Government. Until the administration of Andrew Jackson this power was not seriously challenged. During the controversy over renewal of the charter of the Bank of the United States, John Quincy Adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the House. Four years later the legislative power of investigation was challenged by the President. A committee appointed by the House of Representatives “with power to send for persons and papers, and with instructions to inquire into the condition of the various executive departments, the ability and integrity with which they have been conducted, . . .” called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Resentful of this attempt “to invade the just rights of the Executive Departments,” the President refused to comply and the majority of the committee acquiesced. Nevertheless, congressional investigations of Executive Departments have continued to the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown’s raid upon the arsenal at Harper’s Ferry occasioned a thorough consideration by the Senate of the basis of this power. After a protracted debate, which cut sharply across sectional and party lines, the Senate voted overwhelmingly to imprison the contumacious witness. Notwithstanding this firmly established legislative practice, the Supreme Court took a narrow view of the power in Kilbourn v. Thompson. It held that the House of Representatives had overstepped its jurisdiction when it instituted an investigation of losses suffered by the United States as a creditor of Jay Cooke and Company, whose estate was being administered in bankruptcy by a federal court. But nearly half a century later, in McGrain v. Daugherty, it ratified in sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration.

When either House exercises a judicial function, as in judging of elections or determining whether a member should be expelled, it is clearly entitled to compel the attendance of witnesses to disclose the facts upon which its action must be based. Thus, the Court held that since a House had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was entitled to investigate such conduct and to summon private individuals to give testimony concerning it. The decision in Barry v. United States ex rel. Cunningham sanctioned the exercise of a similar power in investigating a senatorial election.

Purpose.—Beginning with the resolution adopted by the House of Representatives in 1827, which vested its Committee on Manufactures “with the power to send for persons and papers with a view to ascertain and report to this House in relation to a revision of the tariff duties on imported goods,” the two Houses have asserted the right to collect information from private persons as well as from governmental agencies when necessary to enlighten their judgment on proposed legislation. The first case to review the assertion saw a narrow view of the power taken and the Court held that the purpose of the inquiry was to pry improperly into private affairs without any possibility of legislating on the basis of what might be learned and further that the inquiry overstepped the bounds of legislative jurisdiction and invaded the provinces of the judiciary.

Subsequent cases, however, have given Congress the benefit of a presumption that its object is legitimate and related to the possible enactment of legislation. Shortly after Kilbourn, the Court declared that “it was certainly not necessary that the resolution should declare in advance what the Senate meditated doing when the investigation was concluded” in order that the inquiry be under a lawful exercise of power. Similarly, in McGrain v. Daugherty, the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating. Then, in Sinclair v. United States, on its facts presenting a close parallel to Kilbourn, the Court affirmed the right of the Senate to carry out investigations of fraudulent leases of government property after suit for recovery had been instituted. The president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable only in the courts wherein they were pending, asserting that the inquiry was not actually in aid of legislation. The Senate had prudently directed the investigating committee to ascertain what, if any, legislation might be advisable. Conceding “that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits,” the Court declared that the authority “to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits.”

Although Sinclair and McGrain involved inquiries into the activities and dealings of private persons, these activities and dealings were in connection with property belonging to the United States Government, so that it could hardly be said that the inquiries concerned the merely personal or private affairs of any individual. But, where the business, and the conduct of individuals are subject to congressional regulation, there exists the power of inquiry, and in practice the areas of any individual’s life immune from inquiry are probably fairly limited. “In the decade following World War II, there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the threat of subversion of the United States Government, but other subjects of congressional interest also contributed to the changed scene. This new phase of legislative inquiry involved a broad-scale intrusion into the lives and affairs of private citizens.” Because Congress clearly has the power to legislate to protect the nation and its citizens from subversion, espionage, and sedition, it also has the power to inquire into the existence of the dangers of domestic or foreign-based subversive activities in many areas of American life, including education, labor and industry, and political activity. Because its powers to regulate interstate commerce afford Congress the power to regulate corruption in labor-management relations, congressional committees may inquire into the extent of corruption in labor unions. Because of its powers to legislate to protect the civil rights of its citizens, Congress may investigate organizations which allegedly act to deny those civil rights. It is difficult in fact to conceive of areas into which congressional inquiry might not be carried, which is not the same, of course, as saying that the exercise of the power is unlimited.

One limitation on the power of inquiry that the cases have discussed concerns the contention that congressional investigations often have no legislative purpose but rather are aimed at achieving results through “exposure” of disapproved persons and activities: “We have no doubt,” wrote Chief Justice Warren, “that there is no congressional power to expose for the sake of exposure.” Although some Justices, always in dissent, have attempted to assert limitations in practice based upon this concept, the majority of Justices have adhered to the traditional precept that courts will not inquire into legislators’ motives but will look only to the question of power. “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.”

—A witness appearing before a congressional committee is entitled to require of the committee a demonstration of its authority to inquire into his activities and a showing that the questions asked of him are pertinent to the committee’s area of inquiry. A congressional committee possesses only those powers delegated to it by its parent body. The enabling resolution that has given it life also contains the grant and limitations of the committee’s power. In Watkins v. United States, Chief Justice Warren cautioned that “[b]roadly drafted and loosely worded . . . resolutions can leave tremendous latitude to the discretion of the investigators. The more vague the committee’s charter is, the greater becomes the possibility that the committee’s specific actions are not in conformity with the will of the parent house of Congress.” Speaking directly of the authorizing resolution, which created the House Un-American Activities Committee, the Chief Justice thought it “difficult to imagine a less explicit authorizing resolution.” But the far-reaching implications of these remarks were circumscribed by Barenblatt v. United States, in which the Court, “[g]ranting the vagueness of the Rule,” noted that Congress had long since put upon it a persuasive gloss of legislative history through practice and interpretation, which, read with the enabling resolution, showed that “the House has clothed the Un-American Activities Committee with pervasive authority to investigate Communist activities in this country.” “[W]e must conclude that [the Committee’s] authority to conduct the inquiry presently under consideration is unassailable, and that . . . the Rule cannot be said to be constitutionally infirm on the score of vagueness.”

Because of the usual precision with which authorizing resolutions have generally been drafted, few controversies have arisen about whether a committee has projected its inquiry into an area not sanctioned by the parent body. But in United States v. Rumely, the Court held that the House of Representatives, in authorizing a select committee to investigate lobbying activities devoted to the promotion or defeat of legislation, did not thereby intend to empower the committee to probe activities of a lobbyist that were unconnected with his representations directly to Congress but rather designed to influence public opinion by distribution of literature. Consequently the committee was without authority to compel the representative of a private organization to disclose the names of all who had purchased such literature in quantity.

Still another example of lack of proper authority is Gojack v. United States, in which the Court reversed a contempt citation because there was no showing that the parent committee had delegated to the subcommittee before whom the witness had appeared the authority to make the inquiry and neither had the full committee specified the area of inquiry.

Watkins v. United States, remains the leading case on pertinency, although it has not the influence on congressional investigations that some hoped and some feared in the wake of its announcement. When questioned by a Subcommittee of the House Un-American Activities Committee, Watkins refused to supply the names of past associates, who, to his knowledge, had terminated their membership in the Communist Party and supported his noncompliance by, inter alia, contending that the questions were unrelated to the work of the Committee. Sustaining the witness, the Court emphasized that inasmuch as a witness by his refusal exposes himself to a criminal prosecution for contempt, he is entitled to be informed of the relation of the question to the subject of the investigation with the same precision as the Due Process Clause requires of statutes defining crimes.

For ascertainment of the subject matter of an investigation, the witness might look, noted the Court, to several sources, including (1) the authorizing resolution, (2) the resolution by which the full committee authorized the subcommittee to proceed, (3) the introductory remarks of the chairman or other members, (4) the nature of the proceedings, (5) the chairman’s response to the witness when the witness objects to the line of question on grounds of pertinency. Whether a precise delineation of the subject matter of the investigation in but one of these sources would satisfy the requirements of due process was left unresolved, since the Court ruled that in this case all of them were deficient in providing Watkins with the guidance to which he was entitled. The sources had informed Watkins that the questions were asked in a course of investigation of something that ranged from a narrow inquiry into Communist infiltration into the labor movement to a vague and unlimited inquiry into “subversion and subversive propaganda.”

By and large, the subsequent cases demonstrated that Watkins did not represent a determination by the Justices to restrain broadly the course of congressional investigations, though several contempt citations were reversed on narrow holdings. But with regard to pertinency, the implications of Watkins were held in check and, without amending its rules or its authorizing resolution, the Un-American Activities Committee was successful in convincing a majority of the Court that its subsequent investigations were authorized and that the questions asked of recalcitrant witnesses were pertinent to the inquiries.

Thus, in Barenblatt v. United States, the Court concluded that the history of the Un-American Activities Committee’s activities, viewed in conjunction with the Rule establishing it, evinced clear investigatory authority to inquire into Communist infiltration in the field of education, an authority with which the witness had shown familiarity. Additionally, the opening statement of the chairman had pinpointed that subject as the nature of the inquiry that day and the opening witness had testified on the subject and had named Barenblatt as a member of the Communist Party at the University of Michigan. Thus, pertinency and the witness’ knowledge of the pertinency of the questions asked him was shown. Similarly, in Wilkinson v. United States, the Court held that, when the witness was apprised at the hearing that the Committee was empowered to investigate Communist infiltration of the textile industry in the South, that it was gathering information with a view to ascertaining the manner of administration and need to amend various laws directed at subversive activities, that Congress hitherto had enacted many of its recommendations in this field, and that it was possessed of information about his Party membership, he was notified effectively that a question about that affiliation was relevant to a valid inquiry. A companion case was held to be controlled by Wilkinson, and in both cases the majority rejected the contention that the Committee inquiry was invalid because both Wilkinson and Braden, when they were called, were engaged in organizing activities against the Committee.

Related to the cases discussed in this section are cases requiring that congressional committees observe strictly their own rules. Thus, in Yellin v. United States, a contempt conviction was reversed because the Committee had failed to observe its rule providing for a closed session if a majority of the Committee believed that a witness’ appearance in public session might unjustly injure his reputation. The Court ruled that the Committee had ignored the rule when it subpoenaed the witness for a public hearing and then in failing to consider as a Committee his request for a closed session.

The Court has blown hot and cold on the issue of a quorum as a prerequisite to a valid contempt citation, and no firm statement of a rule is possible, although it seems probable that no quorum is ordinarily necessary.

— “[T]he Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights.” Just as the Constitution places limitations on Congress’s power to legislate, so it limits the power to investigate. This section addresses the limitations the Bill of Rights places on the scope and nature of the congressional power to inquire.

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

There is no prescribed form in which one must plead the privilege. When a witness refused to answer a question about Communist Party affiliations and based his refusal upon the assertion by a prior witness of “the first amendment supplemented by the fifth,” the Court held that he had sufficiently invoked the privilege, at least in the absence of committee inquiry seeking to force him to adopt a more precise stand. If the committee suspected that the witness was being purposely vague, in order perhaps to avoid the stigma attached to a forthright claim of the privilege, it should have requested him to state specifically the ground of his refusal to testify. Another witness, who was threatened with prosecution for his Communist activities, could claim the privilege even to some questions the answers to which he might have been able to explain away as unrelated to criminal conduct; if an answer might tend to be incriminatory, the witness is not deprived of the privilege merely because he might have been able to refute inferences of guilt. In still another case, the Court held that the committee had not clearly overruled the claim of privilege and directed an answer.

The privilege against self-incrimination is not available as a defense to an organizational officer who refuses to turn over organization documents and records to an investigating committee.

In Hutcheson v. United States, the Court rejected a challenge to a Senate committee inquiry into union corruption on the part of a witness who was under indictment in state court on charges relating to the same matters about which the committee sought to interrogate him. The witness did not plead his privilege against self-incrimination but contended that, by questioning him about matters that would aid the state prosecutor, the committee had denied him due process. The plurality opinion of the Court rejected his ground for refusing to answer, noting that, if the committee’s public hearings rendered the witness’ state trial unfair, then he could properly raise that issue on review of his state conviction.

Claims relating to the First Amendment have been frequently asserted and as frequently denied. It is not that the First Amendment is inapplicable to congressional investigations, it is that, under the prevailing Court interpretation, the First Amendment does not bar all legislative restrictions of the rights guaranteed by it. “[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.”

Thus, the Court has declined to rule that under the circumstances of the cases investigating committees are precluded from making inquiries simply because the subject area was education or because the witnesses at the time they were called were engaged in protected activities such as petitioning Congress to abolish the inquiring committee. However, in an earlier case, the Court intimated that it was taking a narrow view of the committee’s authority because a determination that authority existed would raise a serious First Amendment issue. And in a state legislative investigating committee case, the majority of the Court held that an inquiry seeking the membership lists of the National Association for the Advancement of Colored People was so lacking in a “nexus” between the organization and the Communist Party that the inquiry infringed the First Amendment.

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

Other constitutional rights of witnesses have been asserted at various times, but without success or even substantial minority support.

Explicit judicial recognition of the right of either house of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain v. Daugherty. But the principle there applied had its roots in an early case, Anderson v. Dunn, which stated in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority. The right to punish a contumacious witness was conceded in Marshall v. Gordon, although the Court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House.

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

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

The Supreme Court has held that the purpose of this statute is merely supplementary of the power retained by Congress, and all constitutional objections to it were overruled. “We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but because Congress, by the Act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved.”

Because Congress has invoked the aid of the federal judicial system in protecting itself against contumacious conduct, the consequence, the Court has asserted numerous times, is that the duty has been conferred upon the federal courts to accord a person prosecuted for his statutory offense every safeguard that the law accords in all other federal criminal cases, and the discussion in previous sections of many reversals of contempt convictions bears witness to the assertion in practice. What constitutional protections ordinarily necessitated by due process requirements, such as notice, right to counsel, confrontation, and the like, prevail in a contempt trial before the bar of one House or the other is an open question.

It has long been settled that the courts may not intervene directly to restrain the carrying out of an investigation or the manner of an investigation, and that a witness who believes the inquiry to be illegal or otherwise invalid in order to raise the issue must place himself in contempt and raise his beliefs as affirmative defenses on his criminal prosecution. This understanding was sharply reinforced when the Court held that the speech-or-debate clause utterly foreclosed judicial interference with the conduct of a congressional investigation, through review of the propriety of subpoenas or otherwise. It is only with regard to the trial of contempts that the courts may review the carrying out of congressional investigations and may impose constitutional and other constraints.

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SECTION 2. Clause 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Annotations

A major innovation in constitutional law in recent years has been the development of a requirement that election districts in each state be structured so that each elected representative represents substantially equal populations. Although this requirement has generally been gleaned from the Equal Protection Clause of the Fourteenth Amendment, in Wesberry v. Sanders, the Court held that “construed in its historical context, the command of Art. I, § 2, that Representatives be chosen ‘by the People of the several States’ means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.”

Court involvement in this issue developed slowly. In our early history, state congressional delegations were generally elected at-large instead of by districts, and even when Congress required single-member districting and later added a provision for equally populated districts the relief sought by voters was action by the House refusing to seat Members-elect selected under systems not in compliance with the federal laws. The first series of cases did not reach the Supreme Court, in fact, until the states began redistricting through the 1930 Census, and these were resolved without reaching constitutional issues and indeed without resolving the issue whether such voter complaints were justiciable at all. In the late 1940s and the early 1950s, the Court used the “political question” doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr.

For the Court in Wesberry, Justice Black argued that a reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the phrase “by the People,” to guarantee equality of representation in the election of Members of the House of Representatives. Justice Harlan in dissent argued that the statements on which the majority relied had uniformly been in the context of the Great Compromise—Senate representation of the states with Members elected by the state legislatures, House representation according to the population of the states, qualified by the guarantee of at least one Member per state and the counting of slaves as three-fifths of persons—and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, § 4, had vested exclusive control over state districting practices in Congress, and that the Court action overrode a congressional decision not to require equally populated districts.

The most important issue, of course, was how strict a standard of equality the Court would adhere to. At first, the Justices seemed inclined to some form of de minimis rule with a requirement that the State present a principled justification for the deviations from equality which any districting plan presented. But in Kirkpatrick v. Preisler, a sharply divided Court announced the rule that a state must make a “good-faith effort to achieve precise mathematical equality.” Therefore, “[u]nless population variances among congressional districts are shown to have resulted despite such [good-faith] effort [to achieve precise mathematical equality], the state must justify each variance, no matter how small.” The strictness of the test was revealed not only by the phrasing of the test but by the fact that the majority rejected every proffer of a justification which the state had made and which could likely be made. Thus, it was not an adequate justification that deviations resulted from (1) an effort to draw districts to maintain intact areas with distinct economic and social interests, (2) the requirements of legislative compromise, (3) a desire to maintain the integrity of political subdivision lines, (4) the exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found, (5) an attempt to compensate for population shifts since the last census, or (6) an effort to achieve geographical compactness.

Illustrating the strictness of the standard, the Court upheld a lower court voiding of a Texas congressional districting plan in which the population difference between the most and least populous districts was 19,275 persons and the average deviation from the ideally populated district was 3,421 persons. Adhering to the principle of strict population equality in a subsequent case, the Court refused to find a plan valid simply because the variations were smaller than the estimated census undercount. Rejecting the plan, the difference in population between the most and least populous districts being 3,674 people, in a state in which the average district population was 526,059 people, the Court opined that, given rapid advances in computer technology, it is now “relatively simple to draw contiguous districts of equal population and at the same time . . . further whatever secondary goals the State has.”

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

It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections solely in the discretion of the states, save only for the express requirement that the states could prescribe no qualifications other than those provided for voters for the more numerous branch of the legislature. This language has never been expressly changed, but the discretion of the states—and not only with regard to the qualifications of congressional electors—has long been circumscribed by express constitutional limitations and by judicial decisions. Further, beyond the limitation of discretion on the part of the states, Congress has assumed the power, with judicial acquiescence, to legislate to provide qualifications at least with regard to some elections. Thus, in the Voting Rights Act of 1965 Congress legislated changes of a limited nature in the literacy laws of some of the States, and in the Voting Rights Act Amendments of 1970 Congress successfully lowered the minimum voting age in federal elections and prescribed residency qualifications for presidential elections, the Court striking down an attempt to lower the minimum voting age for all elections. These developments greatly limited the discretion granted in Article I, § 2, cl. 1, and are more fully dealt with in the treatment of § 5 of the Fourteenth Amendment.

Notwithstanding the vesting of discretion to prescribe voting qualifications in the states, conceptually the right to vote for United States Representatives is derived from the Federal Constitution, and Congress has had the power under Article I, § 4, to legislate to protect that right against both official and private denial.

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Clause 2. No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an inhabitant of the State in which he shall be chosen.

Annotations

A question much disputed but now seemingly settled is whether a condition of eligibility must exist at the time of the election or whether it is sufficient that eligibility exist when the Member-elect presents himself to take the oath of office. Although the language of the clause expressly makes residency in the state a condition at the time of election, it now appears established in congressional practice that the age and citizenship qualifications need only be met when the Member-elect is to be sworn. Thus, persons elected to either the House of Representatives or the Senate before attaining the required age or term of citizenship have been admitted as soon as they became qualified.

Congressional Additions.—Writing in The Federalist with reference to the election of Members of Congress, Hamilton firmly stated that “[t]he qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature.” Until the Civil War, the issue was not raised, the only actions taken by either House conforming to the idea that the qualifications for membership could not be enlarged by statute or practice. But in the passions aroused by the fratricidal conflict, Congress enacted a law requiring its members to take an oath that they had never been disloyal to the National Government. Several persons were refused seats by both Houses because of charges of disloyalty, and thereafter House practice, and Senate practice as well, was erratic. But in Powell v. McCormack, it was conclusively established that the qualifications listed in clause 2 are exclusive and that Congress could not add to them by excluding Members-elect not meeting the additional qualifications.

Powell was excluded from the 90th Congress on grounds that he had asserted an unwarranted privilege and immunity from the process of a state court, that he had wrongfully diverted House funds for his own uses, and that he had made false reports on the expenditures of foreign currency. The Court determination that he had been wrongfully excluded proceeded in the main from the Court’s analysis of historical developments, the Convention debates, and textual considerations. This process led the Court to conclude that Congress’s power under Article I, § 5 to judge the qualifications of its Members was limited to ascertaining the presence or absence of the standing qualifications prescribed in Article I, § 2, cl. 2, and perhaps in other express provisions of the Constitution. The conclusion followed because the English parliamentary practice and the colonial legislative practice at the time of the drafting of the Constitution, after some earlier deviations, had settled into a policy that exclusion was a power exercisable only when the Member-elect failed to meet a standing qualification, because in the Constitutional Convention the Framers had defeated provisions allowing Congress by statute either to create property qualifications or to create additional qualifications without limitation, and because both Hamilton and Madison in the Federalist Papers and Hamilton in the New York ratifying convention had strongly urged that the Constitution prescribed exclusive qualifications for Members of Congress.

Further, the Court observed that the early practice of Congress, with many of the Framers serving, was consistently limited to the view that exclusion could be exercised only with regard to a Member-elect failing to meet a qualification expressly prescribed in the Constitution. Not until the Civil War did contrary precedents appear, and later practice was mixed. Finally, even were the intent of the Framers less clear, said the Court, it would still be compelled to interpret the power to exclude narrowly. “A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ 2 Elliot’s Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning, borne out in the Wilkes case and some of Congress’s own post-Civil War exclusion cases, against ‘vesting an improper and dangerous power in the Legislature.’ 2 Farrand 249.” Thus, the Court appears to say, to allow the House to exclude Powell on this basis of qualifications of its own choosing would impinge on the interests of his constituents in effective participation in the electoral process, an interest which could be protected by a narrow interpretation of Congressional power.

The result in Powell had been foreshadowed when the Court held that the exclusion of a Member-elect by a state legislature because of objections he had uttered to certain national policies constituted a violation of the First Amendment and was void. In the course of that decision, the Court denied state legislators the power to look behind the willingness of any legislator to take the oath to support the Constitution of the United States, prescribed by Article VI, cl. 3, to test his sincerity in taking it. The unanimous Court noted the views of Madison and Hamilton on the exclusivity of the qualifications set out in the Constitution and alluded to Madison’s view that the unfettered discretion of the legislative branch to exclude members could be abused in behalf of political, religious or other orthodoxies. The First Amendment holding and the holding with regard to testing the sincerity with which the oath of office is taken is no doubt as applicable to the United States Congress as to state legislatures.

—However much Congress may have deviated from the principle that the qualifications listed in the Constitution are exclusive when the issue has been congressional enlargement of those qualifications, it has been uniform in rejecting efforts by the states to enlarge the qualifications. Thus, the House in 1807 seated a Member-elect who was challenged as not being in compliance with a state law imposing a twelve-month residency requirement in the district, rather than the federal requirement of being an inhabitant of the state at the time of election; the state requirement, the House resolved, was unconstitutional. Similarly, both the House and Senate have seated other Members-elect who did not meet additional state qualifications or who suffered particular state disqualifications on eligibility, such as running for Congress while holding particular state offices.

The Supreme Court reached the same conclusion as to state power, albeit by a surprisingly close 5–4 vote, in U. S. Term Limits, Inc. v. Thornton. Arkansas, along with twenty-two other states, all but two by citizen initiatives, had limited the number of terms that Members of Congress may serve. In striking down the Arkansas term limits, the Court determined that the Constitution’s qualifications clauses establish exclusive qualifications for Members that may not be added to either by Congress or the states. Six years later, the Court relied on Thornton to invalidate a Missouri law requiring that labels be placed on ballots alongside the names of congressional candidates who had “disregarded voters’ instruction on term limits” or declined to pledge support for term limits.

Both majority and dissenting opinions in Thornton were richly embellished with disputatious arguments about the text of the Constitution, the history of its drafting and ratification, and the practices of Congress and the states in the nation’s early years, and these differences over text, creation, and practice derived from disagreement about the fundamental principle underlying the Constitution’s adoption.

In the dissent’s view, the Constitution was the result of the resolution of the peoples of the separate states to create the National Government. The conclusion to be drawn from this was that the peoples in the states agreed to surrender only those powers expressly forbidden them and those limited powers that they had delegated to the Federal Government expressly or by necessary implication. They retained all other powers and still retain them. Thus, “[w]here 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.” The Constitution’s silence as to authority to impose additional qualifications meant that this power resides in the states.

The majority’s views were radically different. After the adoption of the Constitution, the states had two kinds of powers: reserved powers that they had before the founding and that were not surrendered to the Federal Government, and those powers delegated to them by the Constitution. It followed that the states could have no reserved powers with respect to the Federal Government. “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.’” The states could not before the founding have possessed powers to legislate respecting the Federal Government, and, because the Constitution did not delegate to the states the power to prescribe qualifications for Members of Congress, the states did not have any such power.

Evidently, the opinions in this case reflect more than a decision on this particular dispute. They rather represent conflicting philosophies within the Court respecting the scope of national power in relation to the states, an issue at the core of many controversies today.

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Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons]. 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.

Annotations

The Census Clause “reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the states, would determine the manner of conducting the census.” These determinations “all suggest a strong constitutional interest in accuracy.”

The language employed—“actual enumeration”—requires an actual count, but gives Congress wide discretion in determining the methodology of that count. The word “enumeration” refers to a counting process without describing the count’s methodological details. The word “actual” merely refers to the enumeration to be used for apportioning the Third Congress, and thereby distinguishes “a deliberately taken count” from the conjectural approach that had been used for the First Congress. Finally, the conferral of authority on Congress to “direct” the “manner” of enumeration underscores “the breadth of congressional methodological authority.” Thus, the Court held in Utah v. Evans, “hot deck imputation,” a method used to fill in missing data by imputing to an address the number of persons found at a nearby address or unit of the same type, does not run afoul of the “actual enumeration” requirement. The Court distinguished imputation from statistical sampling, and indicated that its holding was relatively narrow. Imputation was permissible “where all efforts have been made to reach every household, where the methods used consist not of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of the method is highly unlikely.”

Although the Census Clause expressly provides for an enumeration of persons, Congress has expanded the scope of the census by including not only the free persons in the states, but also those in the territories, and by requiring all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court, and is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action.

Although taking an enlarged view of its census power, Congress has not always complied with its positive mandate to reapportion representatives among the states after the census is taken. It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929, it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called “method of major fractions,” which had been earlier employed in the apportionment of 1911, and which has now been replaced with the “method of equal proportions.” Following the 1990 census, a state that had lost a House seat as a result of the use of this formula sued, alleging a violation of the “one person, one vote” rule derived from Article I, § 2. Exhibiting considerable deference to Congress and a stated appreciation of the difficulties in achieving interstate equalities, the Supreme Court upheld the formula and the resultant apportionment. The goal of absolute population equality among districts “is realistic and appropriate” within a single state, but the constitutional guarantee of one Representative for each state constrains application to districts in different states, and makes the goal “illusory for the Nation as a whole.”

Although requiring the election of Representatives by districts, Congress has left it to the states to draw district boundaries. This has occasioned a number of disputes. In Ohio ex rel. Davis v. Hildebrant, a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several states produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to state legislatures by the Constitution, the Court decided that it was legislative in character and subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the state constitution.

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