Article I Legislative Branch

Signed in convention September 17, 1787. Ratified June 21, 1788. A portion of Article I, Section 2, was changed by the 14th Amendment; a portion of Section 9 was changed by the 16th Amendment; a portion of Section 3 was changed by the 17th Amendment; and a portion of Section 4 was changed by the 20th Amendment

Interpretation of Article I

The 13th amendment abolished slavery and the 14th amendment provided that representation would be determined according to the whole number of persons in each state, not by the “three-fifths” of the slaves.  Since American Indians are now taxed, they are counted for purposes of apportionment.

The 17th Amendment provided for the direct popular election of Senators.

The filling of vacancies was altered by the 17th amendment.

The 20th Amendment changed the starting date for a session of Congress to noon on the 3d day of January

This obsolete provision was designed to protect the slave trade from congressional restriction for a period of time.

This was superceded by the 16th Amendment, which reads, “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment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.”

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. 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.

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, for six Years; and each Senator shall have one Vote.

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.

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, unless they shall by Law appoint a different Day.

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 among the several States, and with the Indian 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 Offenses 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.

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.

Common Interpretation

Article I, Sec. 8: Federalism and the Overall Scope of Federal Power

Article I, Sec. 8: Federalism and the Overall Scope of Federal Power

By Randy E. Barnett and Heather Gerken

In practice, federalism has waxed and waned since the founding, and federal-state relations have always been contested. Nonetheless, federalism underwent four distinct phases during four different eras in our constitutional history: post-Founding, post-Civil War, post-New Deal, and from the Rehnquist Court to today.

Enumerated Powers Federalism

In 1787, the Constitution replaced the Articles of Confederation—which was essentially a treaty among sovereign states—with a new constitution ratified by the people themselves in state conventions rather than by state legislatures. The Founders provided the national government with powers it lacked under the Articles and ensured it would be able to act on behalf of the citizenry directly without going through the state governments. But the Founders also thought it important to preserve the states’ power over their own citizens.

The Founders struck this balance by granting the new national government only limited and enumerated powers and leaving the regulation of intrastate commerce to the states. State legislative powers were almost exclusively limited by their own constitutions.

Federalism at the Founding can therefore best be described as “Enumerated Powers Federalism.” The national government was conceived as one of limited and enumerated powers. The powers of states were simply everything left over after that enumeration. This is expressed in the first words of Article I, which created Congress: “All legislative powers herein granted shall be vested in a Congress of the United States.” The Tenth Amendment reinforces this principle: “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.” State power, then, was protected not by affirmatively shielding state power, but by limiting the ability of the federal government to act in the first place.               

Fundamental Rights Federalism

Federalism changed in the wake of the Civil War. The Republicans in the Thirty-Eighth Congress enacted the Thirteenth Amendment, eliminating the power of states to enforce slavery within their borders. But Southern states almost immediately used the rest of their vast police powers to enact Black Codes to oppress the newly freed slaves. Their aim was to come as closely as possible to restoring slavery in everything but name.

In response to this, the Republicans in the Thirty-Ninth Congress used their Thirteenth Amendment enforcement power to enact the Civil Rights Act of 1866. Although they overrode the veto of President Johnson by super-majorities in both houses, some in Congress saw the need to write these protections into the Constitution lest courts question Congress’s power to enact the Civil Rights Act.

The Republicans thus created the Fourteenth Amendment. Section 1 forbade states from violating the fundamental rights of their own citizens, placing new federal constraints on all three branches of state governments. Section 5 granted Congress the power to enforce those constraints. With the passage of the 14th Amendment, the federal government could now prevent states from violating the privileges and immunities of their citizens; depriving anyone of life, liberty, or property without due process; and denying anyone equal protection. Following on its heels, a similar provision was enacted to prevent states from denying citizens the right to vote based on their race. The Reconstruction Amendments, taken together, thus ushered in what we can call “Fundamental Rights Federalism.”

Soon after its enactment, however, the Supreme Court systematically neutered the Fundamental Rights Federalism of the Reconstruction Amendments through such cases as The Slaughter-House Cases (1873), U.S. v. Cruikshank (1875), The Civil Rights Cases (1883), Plessy v. Ferguson (1896), and Giles v. Harris (1903). As a result, the powers accorded to the federal government lay dormant until the Court and Congress took them up again in the early Twentieth Century to protect economic liberties in cases like Lochner v. New York (1905) and Buchanan v. Warley (1917). Eventually, beginning in the 1930s until today, the Court largely withdrew from this area in favor of to protecting so-called “fundamental rights” and the civil rights of “suspect classes” like racial minorities. 

New Deal Federalism

With the New Deal, the Court expanded federal regulatory power. Relying primarily on the Commerce Clause and the Necessary and Proper Clause to expand Congress’s reach, the Court effectively brought about the demise of the Enumerated Powers Federalism of the Founding Era. The Court interpreted Article I to give Congress the power to regulate wholly intrastate economic activity that substantially affects interstate commerce. Because the scope and importance of the national economy had vastly outpaced the vision of interstate commerce held by the Founders, the power to regulate anything that affects interstate commerce amounts to the power to regulate almost everything. As a result, the federal government could now regulate in areas once governed exclusively by the states. It could even regulate the states themselves. So what becomes of the states in the wake of New Deal Federalism?

State Sovereignty Federalism  

Enter the Rehnquist Court. After William Rehnquist became Chief Justice in 1986, the Court began developing what came to be known as the “New Federalism,” but which in this story could be called “State Sovereignty Federalism.” 

First came the Court’s so-called Tenth Amendment cases of New York v. United States (1992), Gregory v. Ashcroft (1991), and Printz v. United States (1997). In each of these cases, the Court attempted to carve out a zone of state autonomy that the federal government could not invade. States were thus shielded from federal regulation in a fashion that private parties were not. Then came the Eleventh Amendment cases of Seminole Tribe of Florida v. Florida (1996) and Alden v. Maine (1999), immunizing states from some lawsuits in federal court in order to preserve their sovereign status.

The Rehnquist Court later began tentatively to revive Enumerated Powers Federalism in cases like United States v. Lopez (1995) and United States v. Morrison (2000). Pushing back against New Deal Federalism, the Court continued to license federal regulation of wholly intrastate economic activity that had a substantial effect on interstate commerce while drawing a line at the regulation of noneconomic intrastate activity.  

The Roberts Court has now taken up the mantle. Like its predecessor, it has continued both to (1) invoke state sovereignty to preserve a zone of state autonomy, and (2) build out a modern version of enumerated powers federalism by interpreting the New Deal federalism as the “high water mark” of federal power such that federal powers cannot be expanded still further without a limiting principle. The first strategy places external limits on Congress’s power, marking where Congress’s power ends by identifying where state power begins and using sovereignty as a touchstone. The second derives those limits internally without reference to the states. But both are efforts to cut back on the expansive view of federal power that had evolved in the wake of the New Deal and thereby preserve a zone of autonomy for the states.

Further Reading:

Matters of Debate

Randy E. Barnett Randy E. Barnett Carmack Waterhouse Professor of Legal Theory and Director of Georgetown Center for the Constitution, Georgetown University Law Center

Why Federalism Matters by Randy E. Barnett

Some people are “fair weather federalists” who only assert the virtues of federalism when they lack the votes in Congress for the national policies they prefer. I think this is a mistake.

Full Text

Heather Gerken Heather Gerken J. Skelly Wright Professor of Law, Yale Law School

Beyond Sovereignty, Beyond Autonomy: A Nationalist’s View of Federalism’s Future by Heather Gerken

Federalism cases have always posed a dilemma for judges.

Full Text

Matters of Debate

Why Federalism Matters by Randy E. Barnett

Why Federalism Matters

By Randy E. Barnett

Some people are “fair weather federalists” who only assert the virtues of federalism when they lack the votes in Congress for the national policies they prefer. I think this is a mistake. The federalism of our constitutional order has yielded some enormous advantages for protecting the rights retained by the people. Let’s see why.

Federalism Leaves Most Legal Issues to the States

If the federal government only has the power to provide for the common defense as well as to protect the free flow of commerce between states, along with a few other specific tasks, most of the laws affecting the liberties of the people will be made at the state level. This would include the regulation of most economic activity as well as what are today called “social issues.” 

In the 1824 case of Gibbons v. Ogden, Chief Justice John Marshall referred to these reserved state powers as “that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves.” For example, “inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.”

Marshall then affirmed that “no direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes.” But he immediately made clear that by “national purpose” he meant “it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.”

Federalism Makes Regulatory Diversity Possible

Given widespread disagreement about both economic and social policies, lodging this “immense mass of legislation” in the states enables a diversity of approaches to develop. Sometimes states are characterized as “laboratories of experimentation,” a paraphrase of a dissenting opinion by Justice Louis Brandeis in the 1932 case of New State Ice Co. v. Liebmann. In his dissent, Brandeis described how a “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.”

When it comes to economic regulation, so long as they remain within the proper scope of their power to protect the rights, health and safety of the public, fifty states can experiment with different regimes of legal regulation so the results can be witnessed and judged rather than endlessly speculated about. States will be somewhat inhibited in imposing restrictions on businesses by the threat of regulatory competition. Other states will be induced to offer more receptive “business climates” to entice businesses to relocate. Businesses small and large can decide to relocate if they deem a particular scheme of regulation to be too onerous.

Critics of this competitive dynamic disparage this as a “race to the bottom” in which states are prevented from enacting beneficial regulations. Of course, it is possible that some states may enact “inferior” regulations to attract business seeking to lower their costs of production. But it is far more likely that local electorates will demand the sorts of “reasonable regulations” they witness other states successfully implementing at a reasonable cost.

Foot Voting Empowers the Sovereign Individual Citizen

When it comes to liberty, the competition provided by federalism empowers the sovereign individual. Because one’s vote in an election is swamped by the ballots of millions of others, it is simply irrational for most persons to invest too heavily in the time and resources to learn what it takes to vote wisely. Not only is it next to impossible to influence any particular policy by casting one’s individual ballot, it is also impossible to separate that policy from others in the “package” offered by one of the two contending political parties.

By contrast, as Ilya Somin explains, when voting with one’s feet by moving to another city or state, one has far greater control over the results. See Ilya Somin, Democracy and Political Ignorance 119-54 (2013). Each person can individually control the state in which they live by selecting from among fifty choices, not just two. And they can witness the economic opportunities that result from different state polices. In a federal system, people are then free to move to another state for a better job, or for a cleaner and safer environment. Because their decisions will have tangible effects on their lives, it is far more rational for individuals to investigate the difference between states than it is the difference between political candidates.

In short, what prevents a legislative “race to the bottom” in a federal system is the freedom of sovereign individuals to race to the states with a better package of results. This dynamic is much less powerful at the national level, because individuals are much more reluctant to leave their country than their state.

Another Perspective

This essay is part of a discussion about Article I, Section 8 with Heather Gerken, J. Skelly Wright Professor of Law, Yale Law School. Read the full discussion here.

The Importance of Keeping Social Issues Local

When it comes to social policy, the preferences of individuals loom even larger than with economic policies. Not only is it difficult to identify the objectively “correct” social policy, it is not clear that such policies even exist. Different people subjectively prefer to live in different types of communities, not only due to differing opinions about morality, but simply as a matter of taste. Given that, by their nature, communities must be one type or another, it is best to have as many different communities from which to choose as possible to satisfy the range of individual tastes, preferences, and moral commitments.

A rich diversity of preferred lifestyles can only be achieved at the local level. As with economic policy, sub-national competition between social policies in a federal system imposes a salutary constraint on state governments by threatening an exodus of dissenting citizens to other states. On the positive side, with fifty states to choose from, it is far more likely that a person can find a state or municipality with a social environment in which they are more comfortable than if one social policy is imposed on the United States as a whole.

The cost of exiting one state for another is far lower than exiting the United States when one disagrees with a national policy. Consequently under a federal system the citizen’s enhanced power of exit not only provides a comparatively greater constraint on legislative power that is reserved to the states, it empowers individuals to achieve their own purposes far more effectively than relying on their ability to influence national policy by their vote, or by leaving the country of their birth. 

In all these ways, liberty is more robustly protected by confining lawmaking to the state and local levels in a federal system, than moving all such decisions to the national level.

Federalism Avoids a Political War of All Against All

There is another, and potentially even more powerful, way that federalism protects the individual sovereignty of the people. When any issue is moved to the national level, it creates a set of winners and a set of losers. Because the losers will have to either live under the winners’ regime or leave the country, everyone will fight much harder to achieve their result or, failing that, to block the other side from achieving its goal.

Consequently, the more issues that are elevated to the national level, the more contentiousness, bitterness, and “gridlock” develops as people fight ever harder not to lose. The result is a political version of what Thomas Hobbes called a “war of all against all.”

We can avoid this by ensuring that as many issues as possible are handled at the personal level of the individual person, which is why individual liberty is the ultimate means to the pursuit of happiness for people living in society with others. Because of the competitive processes I have already described, reinforced by federal checks on state power, such individual liberty is far better protected at the more local level than at the national.

Again, it is not that the social and economic policy issues protected by a diversity of state regulations are less important than those handled at the national level. To the contrary, the more important the issue, the more likely it will engender a political war-of-all-against-all to avoid having another’s social policy imposed on you. So, the more important the issue, the less is it fit to be decided at the national level.

For all these reasons, the United States has been a far more prosperous and contented country because of its federal system. 

Further Reading:

I explain the individualist conception of “We the People” and popular sovereignty in Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016).

Randy E. Barnett Randy E. Barnett Carmack Waterhouse Professor of Legal Theory and Director of Georgetown Center for the Constitution, Georgetown University Law Center

Matters of Debate

Beyond Sovereignty, Beyond Autonomy: A Nationalist’s View of Federalism’s Future by Heather Gerken

Beyond Sovereignty, Beyond Autonomy: A Nationalist’s View of Federalism’s Future

By Heather Gerken

Federalism cases have always posed a dilemma for judges. The federal government is supposed to be a government of limited powers. But whenever the Supreme Court tries to cabin Congress’s reach, the odds are that the analysis in the dissent will be sounder than that in the majority opinion. If the Justices don’t act, on the other hand, they end up ignoring what most agree to be true — the federal government isn’t supposed to be able to do anything it wants. As every law student learns, facts on the ground have outpaced the Founders’ vision, as our interconnected system now leaves room for the federal government to regulate virtually everything the states can. That’s why the Court’s Commerce Clause decisions, in particular, are so easy to dismantle. It’s a commonplace among lawyers that those decisions are trying to limit the limitless. Legal doctrine, in sharp contrast, has its limits, and it has failed the Court time and time again. So therein lies the tragic choice of federalism doctrine: do nothing or do something . . . silly.

In their efforts to limit federal power the Rehnquist and Roberts Courts have offered us two kinds of federalism decisions. Some start with the states. They mark where Congress’s power ends by identifying where state power begins, using sovereignty as a touchstone. It might seem odd for the Court to begin with the states in describing the limits of federal power. But the Court does so for a reason. It designates the outer limits of federal authority by marking the bounds of state power, much the way an artist designates a shape using negative space. 

Other federalism opinions — including most of the decisions of the Roberts Court — start with Congress and delineate the bounds of its power in isolation. Rather than trace the (state) boundaries that federal power cannot cross, the Court demarcates federal power without looking to the states. The Court itself has acknowledged this difference (see New York v. United States (1992)), and scholars often orient their teaching and writing around the difference between external/sovereignty-based limits on congressional power and those derived internally.

While it is conventional to note that federalism cases come in these two flavors, the mistake scholars make is to treat both lines of doctrine as if they are equally flawed. They are not. The cases that rely on state sovereignty to limit federal power are misguided, but we should give the devil its due. These decisions have managed to generate doctrine that is more manageable, more comprehensible, and therefore more likely to endure. The cases that define federal power in isolation have been a failure on almost any measure. When the Court addresses Congress’s power in isolation, it creates a challenge for itself: how to bound the boundless. Deprived of the handy stopping point that the sovereignty account provides, the Court must decide how far to follow a chain of reasoning in a world where the market touches virtually everything and interconnected regulatory regimes can sweep almost anything into Article I’s ambit. Because these opinions attempt to identify limits through sheer force of logic, the doctrine they generate amounts to little more than logic games, which can be played by both sides of any issue. This doctrine is unlikely to endure, and there will be little reason to mourn its passing.

Another Perspective

This essay is part of a discussion about Article I, Section 8 with Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory and Director of Georgetown Center for the Constitution, Georgetown University Law Center. Read the full discussion here.

Federalism opinions that begin with the states have chosen the right starting point but headed in the wrong direction because they’ve followed the trail marked by the sovereigntists. As John Hart Ely quipped about the “one person, one vote” doctrine, manageability is sovereignty’s long suit, but it’s not clear what else it has going for it. See John Hart Ely, Democracy and Distrust 121 (1980). The Court is correct to define federal power in relational terms, but it’s missed how that relationship actually works. The states and the federal government regulate shoulder-to-shoulder in the same, tight policymaking space. Just think about how the Affordable Care Act has been implemented. Read just about anything written in environmental law these days.  Take a look at telecom, the AFDC, Medicaid, drug enforcement, workplace safety, health care, immigration, even national security law. In these integrated regulatory regimes, the states and federal government have forged vibrant, interactive relationships that involve both cooperation and conflict. If the Court is going to generate doctrine that is not only enduring but worth preserving, the case law must reflect these realities.

So where should the Court go from here? Returning to a sovereignty-centered federalism isn’t a solution. While the Court is much more likely to generate enduring legal doctrine if it begins with something manageable, the point is to build doctrine that’s worth keeping around. And while a sovereignty account is admirably concrete and manageable, it’s also wrongheaded and out of date. The Court may have chosen the right starting point for its analysis, but it’s still got the wrong map.

The Court needs a relational account. It needs to think hard about how the states and the federal government interact. But it should think about those interactions differently. As intuitively appealing as the sovereignty argument is, it can’t possibly survive 21st century realities. It can’t survive in a world where sovereignty is not to be had, where regulatory overlap is the rule, where states’ most important form of power lies not in presiding over their own empires but in administering the federal empire.

If the Court is hunting for a new path, it should retain the central insight of the sovereignty cases — that federal power must be defined in relation to the states — but take it in a different direction. The problem with the Court’s relational account of federal power is that it’s not sufficiently relational. It fails to capture the deeply integrated, highly interactive relationship that exists between the states and federal government in so many regulatory arenas. The states and federal government have forged vibrant working relationships. They are not engaged in the governance equivalent of parallel play.

Further Reading:

Heather Gerken Heather Gerken J. Skelly Wright Professor of Law, Yale Law School

Common Interpretation

Elections Clause

Elections Clause

By Michael T. Morley and Franita Tolson

The Elections Clause is the primary source of constitutional authority to regulate elections for the U.S. House of Representatives and U.S. Senate. The Clause directs and empowers states to determine the “Times, Places, and Manner” of congressional elections, subject to Congress’s authority to “make or alter” state regulations. It grants each level of government the authority to enact a complete code for such elections, including rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results. Whenever a state enacts a law relating to a congressional election, it is exercising power under the Elections Clause; states do not have any inherent authority to enact such measures. 

Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. Congress may pass federal laws regulating congressional elections that automatically displace (“preempt”) any contrary state statutes, or enact its own regulations concerning those aspects of elections that states may not have addressed. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress. They empowered Congress to step in and regulate such elections as a self-defense mechanism.

On occasion, Congress has exercised its power to “make or alter” rules concerning congressional elections, and some of its laws lie at the very heart of the modern electoral process. It has established a single national Election Day for congressional elections, and mandated that states with multiple Representatives in the U.S. House divide themselves into congressional districts, rather than electing all of their Representatives at-large. Congress also has enacted statutes limiting the amount of money that people may contribute to candidates for Congress, requiring that people publicly disclose most election-related spending, mandating that voter registration forms be made available at various public offices, and requiring states to ensure the accuracy of their voter registration rolls.

The power of states and Congress to regulate congressional elections under the Elections Clause is subject to express and implicit limits. Fundamentally, neither entity can enact laws under the Elections Clause that violate other constitutional provisions. For example, the Constitution specifies that anyone who is eligible to vote for the larger house of a state legislature may vote for the U.S. House and U.S. Senate as well. The Elections Clause does not permit either the states or Congress to override those provisions by establishing additional qualifications for voting for Congress.

Likewise, the Fourteenth Amendment to the U.S. Constitution protects the fundamental right to vote, barring states from needlessly imposing substantial burdens on the right. When a law specifies that a person must satisfy certain requirements or follow certain procedures in order to vote, a court must determine whether it is a reasonable regulation of the electoral process under the Elections Clause, or instead undermines the right to vote. Laws requiring people to register to vote in advance of elections or mandating that they vote at their assigned polling places are exactly the types of restrictions that the Elections Clause permits.

The Constitution also specifies age, residency, and citizenship requirements to run for the House or Senate. Individuals who satisfy those requirements cannot be prohibited from running for office for failing to satisfy other qualifications. States can, however, impose reasonable ballot access restrictions that a candidate must fulfill in order to appear on the ballot, such as submitting a petition signed by a certain number of registered voters. The Supreme Court has aggressively enforced this restriction by invalidating various attempts to impose term limits on Members of Congress. In U.S. Term Limits, Inc. v. Thornton (1995), the Court held that the Elections Clause did not permit a state to refuse to print on the ballot the names of candidates for the U.S. House who already had served three terms there, or the names of candidates for the U.S. Senate who had already served two terms.

The Supreme Court has explained that the Elections Clause also imposes implicit restrictions on the power to regulate congressional elections. Neither Congress nor the states may attempt to dictate electoral outcomes, or favor or disfavor certain classes of candidates. In Cook v. Gralike (2001), the Court struck down a provision that required election officials to print a special warning on the ballot next to the name of any candidate for Congress who refused to support an amendment to the U.S Constitution that would impose term limits for Congress. The Court explained that the provision exceeded the state’s power under the Elections Clause because it was “plainly designed” to favor candidates who supported term limits, while placing others at a disadvantage.   

One unusual feature of the Elections Clause is that it does not confer the power to regulate congressional elections on states as a whole, but rather the “Legislature” of each state. The Supreme Court has construed the term “Legislature” extremely broadly to include any entity or procedure that a state’s constitution permits to exercise lawmaking power. Thus, laws regulating congressional elections may be enacted not only by a state’s actual legislature, but also directly by a state’s voters through the initiative process or public referendum, in states that allow such procedures. 

The Court also has held that a legislature may delegate its authority under the Elections Clause to other entities or officials. A few states have chosen to transfer power to draw congressional district lines from their respective legislatures to non-partisan or bipartisan “independent redistricting commissions.” These states believe that such commissions can make the electoral process more fair by preventing voters from being divided into congressional districts in ways that unduly protect existing officeholders (“gerrymandering”). 

As this summary shows, congressional elections are conducted under a complicated mix of state and federal laws, reflecting the Elections Clause’s division of authority between state legislatures and Congress.

Matters of Debate

Michael T. Morley Michael T. Morley Assistant Professor of Law, Barry University School of Law

Enforcing the Elections Clause by Preserving the Role of Legislatures by Michael T. Morley

The power to make the rules governing the electoral process is perhaps the most important power conferred by the Constitution.

Full Text

Franita Tolson Franita Tolson Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law

Ordering State-Federal Relations through the Elections Clause by Franita Tolson

The Elections Clause gives the states and the federal government concurrent jurisdiction over congressional elections, granting states the power to set the “Times, Places, and Manner” of these elections, and delegating to Congress the authority to “alter” state regulations or “make” its own.

Full Text

Matters of Debate

Enforcing the Elections Clause by Preserving the Role of Legislatures by Michael T. Morley

Enforcing the Elections Clause by Preserving the Role of Legislatures

By Michael T. Morley

The power to make the rules governing the electoral process is perhaps the most important power conferred by the Constitution. By drawing congressional district boundaries differently, enhancing or weakening measures to protect the integrity of the electoral process, changing the standards concerning vote counting, or modifying any of dozens of other rules concerning elections, it often is possible to systematically help candidates from one political party over the other. The government officials empowered to determine the rules governing an election therefore can exert a tremendous influence over the election’s outcome! 

The Framers of the Constitution sought to preserve the fairness of congressional elections by allowing state legislatures, and ultimately Congress, to regulate them. A majority of the modern Supreme Court, however, does not trust institutional state legislatures to oversee the electoral process. Both legislatures and Congress are comprised of partisan elected representatives who might be tempted to tweak the rules to aid their political allies, rather than promoting the public interest. Thus, in Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) (2015), by a bare 5-4 majority, the Court decided to ignore the plain meaning of the Elections Clause. It held that the word “Legislature” does not mean what most people would assume; it does not refer to the body in each state comprised of elected officials that periodically convenes to debate and enact laws. Rather, the term refers to any lawmaking process authorized by a state’s constitution, including public referenda and initiatives, in which members of the public vote directly to enact a statute. Moreover, the Court held that a state law may transfer power to regulate congressional elections away from the legislature to other entities such as executive branch officials or independent commissions. 

Another Perspective

This essay is part of a discussion about the Elections Clause with Franita Tolson, Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law. Read the full discussion here.

These holdings, while well-intentioned, are flatly wrong and directly contradict the plain meaning of the Elections Clause. The Constitution uses the term “Legislature” repeatedly. In every other place where the word appears in the Constitution, it clearly and unambiguously refers exclusively to a state’s institutional legislature, and not to other lawmaking processes such as public votes or referenda. Likewise, the term was used repeatedly throughout the debates over the Constitution to refer exclusively to an institutional legislature. And every single state constitution during the Founding Era that referred to a “Legislature” defined it as a distinct multimember body comprised of representatives. 

The AIRC majority chose to ignore the meaning of the term and instead effectively re-wrote the Elections Clause to allow a state to exclude its institutional legislature from regulating congressional elections. Even if the Court were correct to doubt the ability of partisan legislatures to draw congressional districts or determine other election rules fairly, it cannot simply disregard the Constitution’s clear text under the guise of interpretation to reach a “better” result. The Elections Clause is the latest victim of “results-oriented jurisprudence,” which is a fancy label for mangling the Constitution’s meaning to achieve a “good” policy result, regardless of what the Constitution actually says.   

In any event, allowing independent commissions to draw congressional district lines may not be much of an improvement over institutional state legislatures. In a legislature, everyone’s partisan incentives and biases are open and overt. So-called independent commissions operate under a veneer of non-partisanship, which often means only that the participants’ partisan preferences remain hidden, far less susceptible to public scrutiny. Most people with enough knowledge about, and interest in, redistricting to work with redistricting commissions are highly likely to have some sort of partisan preferences. Moreover, redistricting is not a science that can be conducted according to abstract principles. Deciding where to divide towns, what communities of interest must be maintained together, and which characteristics of a population are most salient in crafting districts are fundamentally political questions for which objective “right” answers do not exist. Different people reasonably can hold differing political views on these issues. There is no objective standard by which the work of a purportedly nonpartisan commission can be deemed any fairer than a map drawn by a legislature. The nature of the task unavoidably requires repeated exercises of subjective political judgment. An elected partisan legislature is quite likely a far more suitable entity for making such quintessentially partisan decisions than a supposedly technocratic bureaucracy.

Michael T. Morley Michael T. Morley Assistant Professor of Law, Barry University School of Law

Matters of Debate

Ordering State-Federal Relations through the Elections Clause by Franita Tolson

Ordering State-Federal Relations through the Elections Clause

By Franita Tolson

The Elections Clause gives the states and the federal government concurrent jurisdiction over congressional elections, granting states the power to set the “Times, Places, and Manner” of these elections, and delegating to Congress the authority to “alter” state regulations or “make” its own. From the Founding until the mid-nineteenth century, Congress used its “make or alter” authority sparingly, leading the regulation of federal elections to become, over time, a government function traditionally left to the states. In the last century-and-a-half, however, Congress became more aggressive in exercising its authority under the Clause, imposing substantive requirements that states must follow in structuring federal elections. These requirements have included, for example, laying down minimum criteria for the states to follow regarding compactness, contiguity, and single member districting for U.S. House elections; instituting uniform voter registration standards for federal elections through the National Voter Registration Act; and modernizing state voting systems through the Help America Vote Act. Despite the breadth of federal power, Congress rarely invokes the Clause in order to nationalize election administration. Instead, Congress assumes that state law is presumptively valid and will govern the nuts and bolts of federal elections.

The U.S. Supreme Court has recognized that the Elections Clause is unique in how it structures the relationship between the states and the federal government, and these differences extend beyond the Clause’s focus on federal elections. Under the Supremacy Clause, for example, states retain authority over numerous policy areas provided that there is no conflict with federal law. In contrast, the Elections Clause does not require a conflict between state and federal law, and Congress can displace state law at will. In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court described Congress’s power to regulate federal elections as “paramount,” noting that it “may be exercised at any time, and to any extent which [Congress] deems expedient.” By giving Congress the ability to veto state regulations or construct its own laws, the Framers created a safeguard against the states’ potential abuse of their authority to regulate federal elections. One such example is Foster v. Love (1997), where the Supreme Court invalidated a Louisiana law that decreed the majority winner of the primary to be the winner of the U.S. House or Senate seat, negating the need for a general election. The Court noted that the Elections Clause “invests the States with responsibility for the mechanics of congressional elections, . . .  but only so far as Congress declines to pre-empt state legislative choices . . . ." Federal law, which sets Election Day for House and Senate races, preempted the Louisiana law because the state law determined the winners from the results of the primary election, which was held on a date different from the federally mandated Election Day.   

Another Perspective

This essay is part of a discussion about the Elections Clause with Michael T. Morley, Assistant Professor of Law, Barry University School of Law. Read the full discussion here.

With few exceptions, however, states retain substantial authority under the Clause to structure federal elections in a manner that is consistent with state law. In Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) (2015), the Supreme Court emphasized this aspect of state power, reading the term “legislature” in the Clause broadly enough to encompass the ballot initiative process that Arizona’s residents used to delegate the legislature’s redistricting authority to an independent redistricting commission. By making the term “legislature” dependent upon the lawmaking procedures recognized by state law instead of fixed within the text of the Elections Clause, the state, through its legislature and its citizens, retains a default role in determining how and through which body it wants to implement the “Times, Places and Manner” of federal elections. As the constitutional text and history show, the Elections Clause provides a unique organizational structure that gives the states broad power to construct federal elections, but it ultimately delegates final policymaking authority to Congress.

Franita Tolson Franita Tolson Betty T. Ferguson Professor of Voting Rights, Florida State University College of Law

Common Interpretation

The Commerce Clause

The Commerce Clause

By Randy E. Barnett and Andrew Koppelman

In the thirteen years between the Declaration of Independence in 1776 and the adoption of the Constitution in 1789, the United States was governed primarily by thirteen separate entities. Although the form of each government differed, most tended to elevate the legislature above the executive and judiciary, and made the legislature as responsive to majoritarian sentiments as possible.

State legislatures began enacting laws to relieve debtors (who were numerous) of their debts, which undermined the rights of creditors (who were few) and the credit market. States also erected an assortment of trade barriers to protect their own businesses from competing firms in neighboring states. And, because state legislatures controlled their own commerce, the federal Congress was unable to enter into credible trade agreements with foreign powers to open markets for American goods, in part, by threatening to restrict foreign access to the American market.

The result of all this was a nationwide economic downturn that, rightly or not, was blamed on ruinous policies enacted by democratically-elected legislatures. In 1787, political dissatisfaction with the economic situation led to a convention convened in Philadelphia to remedy this state of affairs. The new Constitution it proposed, addressed debtor relief laws with the Contracts Clause of Article I, Section 10, which barred states from "impairing the obligation of contracts."

To address the problems of interstate trade barriers and the ability to enter into trade agreements, it included the Commerce Clause, which grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Moving the power to regulate interstate commerce to Congress would enable the creation of a free trade zone among the several states; removing the power to regulate international trade from the states would enable the president to negotiate, and Congress to approve, treaties to open foreign markets to American-made goods. The international commerce power also gave Congress the power to abolish the slave trade with other nations, which it did effective on January 1, 1808, the very earliest date allowed by the Constitution.

But, in the words of Chief Justice John Marshall, the "enumeration" of three distinct commerce powers in the Commerce Clause "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." Gibbons v. Ogden (1824) (Marshall, C.J.). So, for example, even when combined with the Necessary and Proper Clause giving Congress power to make all laws which shall be necessary and proper for carrying into execution its enumerated powers, the Commerce Clause did not give Congress power to touch slavery that was allowed by state governments within their borders.

The text of the Commerce Clause raises at least three questions of interpretation: What is the meaning of "commerce"? What is the meaning of "among the several states"? And what is the meaning of "to regulate"? Some have claimed that each of these terms of the Commerce Power had, at the time of the founding, an expansive meaning in common discourse, while others claim the meaning was more limited.

  • "Commerce" might be limited to the trade, exchange or transportation of people and things, which would exclude, for example, agriculture, manufacturing, and other methods of production; or it might expansively be interpreted to refer to any gainful activity or even to all social interaction.
  • "To regulate" might be limited to "make regular," which would subject a particular type of commerce to a rule and would exclude, for example, any prohibition on trade as an end in itself; or it might expansively be interpreted to mean "to govern," which would include prohibitions as well as pure regulations.
  • "[A]mong the several States" might be limited to commerce that takes place between the states (or between people of different states), as opposed to commerce that occurs between persons of the same state; or it might expansively be interpreted to refer to commerce "among the people of the several States," whether such commerce occurs between people in the same state or in different states.

In addition to other pervasive evidence of the public meaning of these terms, the slavery issue helps clarify the original public meaning of these terms at the time of their enactment. "Commerce" meant the activity of selling, trading, exchanging, and transporting goods and people, as distinct from producing the things being moved. "To regulate" meant to make regular, but at least with respect to the international trade, it also included the power to ban the trade in some items, as Congress banned the slave trade. Among the several states meant between one state and others, not within a state, where slavery existed as an economic activity.

From the founding until today, the meaning of "commerce" has not been much changed. Perhaps its only expansion by the Supreme Court came in 1944 when the Court held that commerce included "a business such as insurance," which for a hundred years had been held to be solely a subject of internal state regulation. United States v. South-Eastern Underwriters (1944). Instead, the modern growth of Congress's regulatory powers has been allowed by the courts adopting an expansive reading of the Necessary and Proper Clause to give Congress power over a broad range of intrastate economic activities with a "substantial effect" on interstate commerce, when such regulation is essential to the regulation of interstate commerce (narrowly defined).

As the New Deal Court said in United States v. Darby (1941), the "power of Congress over interstate commerce is not confined to the regulation of commerce among the states." The Court explained that "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 also "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." As authority for this principle, the Court relied on the Necessary and Proper Clause case of McCulloch v. Maryland (1819).

But in McCulloch, Chief Justice Marshall insisted that "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 . . . to say that such an act was not the law of the land." In Darby, however, Justice Stone wrote: "Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause." In this way, Stone ruled out Marshall's inquiry into whether Congress was relying on the commerce clause power as pretext for passing laws that aimed to accomplish goals beyond the power of the federal government. Thus, the Court expanded Congress power over interstate commerce in a way that gave it power over the national economy.

In the 1990s, the Rehnquist Court treated these New Deal cases as the high water mark of congressional power. In the cases of U.S. v. Lopez (1995) and U.S. v. Morrison (2000), the Court confined this regulatory authority to intrastate economic activity. In addition, in a concurring opinion in Gonzales v. Raich (2005), Justice Scalia maintained that, under Lopez, "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."

Most recently, in the health care case of NFIB v. Sebelius, in 2012, a majority of the justices found that a mandate to compel a person to engage in the economic activity of buying health insurance was beyond the powers of Congress under both the Commerce and Necessary and Proper Clauses. "The individual mandate cannot be upheld as an exercise of Congress' power under the Commerce Clause," Chief Justice Roberts wrote. "That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it." Moreover, "[e]ven 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." Instead, Chief Justice Roberts provided the fifth vote to uphold the Affordable Care Act by adopting a "saving construction" that the penalty enforcing the insurance requirement was noncoercive enough to be considered a tax rather than a Commerce Clause regulation.

The dispute over the breadth of the meaning of "commerce" turns, in large part, on the purposes one attributes to the clause, and to the Constitution as a whole, and what one thinks is the relevance of such purposes to the meaning of the text. At Philadelphia in 1787, the Convention resolved that Congress could "legislate in all cases . . . to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." 2 Records of Fed. Convention 21 (Max Farrand ed., 1911); see also 1 Records of Fed. Convention 21 (Resolution VI of the Virginia Plan). This was then translated by the Committee of Detail into the present enumeration of powers in Article I, Section 8, which was accepted as a functional equivalent by the Convention without much discussion. Proponents of an expansive reading claim that the power to regulate commerce should extend to any problem the states cannot separately solve. Those who support a narrower reading observe that the Constitution aims to constrain, as well as to empower, Congress, and the broadest reading of the Commerce power extends well beyond anything the framers imagined. As the dissenters in the health care case observed, "Article I contains no whatever-it-takes-to-solve-a-national-problem power."

Further Reading:

For contrasting views of evidence on the original public meaning of the terms in the Commerce Clause, compare Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001), and Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 U. Ark. L. Rev. 847 (2003), with Jack M. Balkin, Living Originalism 138-82 (2011); Randy E. Barnett, Jack Balkin's Interaction Theory of Commerce, 2012 U. Ill. L. Rev. 623.

Matters of Debate

Randy E. Barnett Randy E. Barnett Carmack Waterhouse Professor of Legal Theory and Director of Georgetown Center for the Constitution, Georgetown University Law Center

Why Congress and the Courts Should Obey the Original Meaning of the Commerce Clause by Randy E. Barnett

As Professor Koppelman and my jointly-authored essay shows, abundant evidence—including what we know about slavery at the time of the Founding—tells us that the original meaning of the Commerce Clause gave Congress the power to make regular, and even to prohibit, the trade, transportation or movement of persons and goods from one state to a foreign nation, to another state, or to an Indian tribe.

Full Text

Andrew Koppelman Andrew Koppelman John Paul Stevens Professor of Law and Professor of Political Science, Northwestern University

A Commerce Power Adequate to its Purposes by Andrew Koppelman

The Commerce Clause should be read in light of the Constitution’s purpose: to empower Congress to address problems among the several states that the states are separately unable to deal with effectively.

Full Text

Matters of Debate

Why Congress and the Courts Should Obey the Original Meaning of the Commerce Clause by Randy E. Barnett

Why Congress and the Courts Should Obey the Original Meaning of the Commerce Clause

By Randy E. Barnett

As Professor Koppelman and my jointly-authored essay shows, abundant evidence—including what we know about slavery at the time of the Founding—tells us that the original meaning of the Commerce Clause gave Congress the power to make regular, and even to prohibit, the trade, transportation or movement of persons and goods from one state to a foreign nation, to another state, or to an Indian tribe. It did not originally include the power to regulate the economic activities, like manufacturing or agriculture, that produced the goods to be traded or transported. We should follow the original meaning of this provision for the same reason we limit California to the same number of Senators as Delaware, notwithstanding the vast disparity between their populations, or limit the president to a person who is at least thirty-five years old, though some who are younger than thirty-five might make excellent presidents.

A written constitution is the law that governs those who govern us. And those who govern us— whether the Congress, the president, or the courts—can no more properly change the law that governs them without going through the amendment process of Article V, than can the people can change the speed limits imposed on them without going through the legislative process. Moreover, under Article VI, “The Senators and Representatives . . . 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,” referring to the written Constitution. But such an oath would be meaningless if it was merely promising to obey whatever meaning a government official later wants the Constitution to mean. That would be like taking an oath to “this Constitution” while crossing one’s fingers behind one’s back.

I agree with Professor Koppelman that the Founders attempted to distinguish the problems that were best handled at the national level from those best handled by the states. But they did so by drafting a specific list of such powers, rather than leave it to the national authority to decide the scope of its own power. Where later developments justify adding to these national powers, such expansion is properly handled by an Article V constitutional amendment, as the Constitution was once amended to give Congress the power to prohibit the intrastate economic activity of producing and selling alcohol. See the Eighteenth Amendment.

Enforcing the original meaning of the Commerce Clause does not mean that other economic activities are free from any government regulation. It merely means that the power to regulate all intrastate economic activities resides with each of the fifty states. Where national uniformity and coordination between states are desirable, these goals can be achieved by the Interstate Compacts Clause of Article I, Section 8, by which states may enter into agreements or compacts with another state or states, provided they have the consent of Congress. Many such compacts exist.

Another Perspective

This essay is part of a discussion about the Commerce Clause with Andrew Koppelman, John Paul Stevens Professor of Law and Professor of Political Science, Northwestern University. Read the full discussion here.

I identify some of the key advantages of decentralizing most law-making at the state level in my statement on Federalism. Here is a summary of my analysis there:

  • Federalism Makes Regulatory Diversity Possible.  Given widespread disagreement about both economic and social policies, lodging this regulatory power in the states enables a diversity of approaches to develop. When it comes to economic regulation, so long as they remain within the proper scope of their power to protect the rights, health and safety of the public, fifty states can experiment with different regimes of legal regulation so the results can be witnessed and judged rather than endlessly speculated about. States will be somewhat inhibited in imposing restrictions on businesses by the threat of regulatory competition. Other states will be induced to offer more receptive “business climates” to entice businesses to relocate. Businesses small and large can decide to relocate if they deem a particular scheme of regulation to be too onerous.
  • Foot Voting Empowers the Sovereign Individual Citizen. When it comes to liberty, the competition provided by federalism empowers the sovereign individual. Each person can individually control the state in which they live by selecting from among fifty choices, not just two. And they can witness the economic opportunities that result from different state polices. In a federal system, people are then free to move to another state for a better job, or for a cleaner and safer environment. Because their decisions will have tangible effects on their lives, it is far more rational for individuals to investigate the difference between states than it is the difference between political candidates.
  • The cost of exiting one state for another is far lower than exiting the United States when one disagrees with a national policy. Consequently under a federal system the citizen’s enhanced power of exit not only provides a comparatively greater constraint on legislative power that is reserved to the states, it empowers individuals to achieve their own purposes far more effectively than relying on their ability to influence national policy by their vote, or by leaving the country of their birth. 
  • The freedom of sovereign individuals to move to the states with a better package of results prevents a legislative “race to the bottom” in a federal system. This dynamic is much less powerful at the national level, because individuals are much more reluctant to leave their country than their state. 
  • Federalism Avoids a Political War of All Against All. When any issue is moved to the national level, it creates a set of winners and a set of losers. Because the losers will have to either live under the winners’ regime or leave the country, everyone will fight much harder to achieve their result or, failing that, to block the other side from achieving its goal.

In all these ways, liberty is more robustly protected by confining lawmaking to the state and local levels in a federal system, than moving all such decisions to the national level. And the United States has been a far more prosperous and contented country because of its federal system, though our system of federalism could stand to be bolstered. But all these benefits (and more) are only available by enforcing the limits on Congressional power provided by the original meaning of the Commerce Clause.

Randy E. Barnett Randy E. Barnett Carmack Waterhouse Professor of Legal Theory and Director of Georgetown Center for the Constitution, Georgetown University Law Center

Matters of Debate

A Commerce Power Adequate to its Purposes by Andrew Koppelman

A Commerce Power Adequate to its Purposes

By Andrew Koppelman

The Commerce Clause should be read in light of the Constitution’s purpose: to empower Congress to address problems among the several states that the states are separately unable to deal with effectively. This is precisely what it was unable to do under the Articles of Confederation. Commerce “among the several States” is, as Chief Justice Marshall put it, “commerce which concerns more States than one”—that has interstate spillover effects, or that generates collective action problems that no state can solve alone. Gibbons v. Ogden (1824) (Marshall, C.J.). 

Combined with the Necessary and Proper Clause, the power is broad. It is not, however, infinite. The best way to read the “pretext” language from McCulloch v. Maryland (1819) is to hold that Congress cannot use its commerce power when there is no colorable interstate problem to solve. That line is sometimes crossed. In United States v. Lopez (1995), the Court invalidated a statute criminalizing possession of handguns near schools—an issue that there was no reason to think that the states couldn’t handle. The law scored cheap political points by appearing to address a pressing and difficult problem without contributing anything substantial to its solution. 

Yet when the Court has attempted to craft limits on the commerce power, the results have not been pretty. The Court began with a constricted understanding of commerce as including only trade and navigation, and then— after some decades of preventing Congress from outlawing child labor—accommodated the modern state by stretching the meaning of this understanding and proliferating legal fictions, producing bizarrely formalistic law. An understanding of commerce limited to trade constrains the federal government with no regard for the reasons why federal regulation might be necessary, and thus pointlessly casts doubt on laws governing civil rights, workplace safety, sanitary food, drug safety, and employee rights. More recently, the Court has declared that Congress has plenary authority over economic, but not noneconomic activity. United States v. Morrison (2000). If that were right, Congress would be deprived of authority over such nontrivial matters as the spoliation of the environment or the spread of contagious diseases across state lines. In Gonzales v. Raich (2005) upholding a ban on private cultivation of marijuana, the Court held that even noneconomic activity could be regulated if the statute as a whole clearly did regulate interstate commerce (here, the drug trade) and regulating the noneconomic activity “was an essential part of the larger regulatory scheme.” That suggests, bizarrely, that Congress’s power gets greater as its regulatory scheme becomes larger and more complex.

Another Perspective

This essay is part of a discussion about the Commerce Clause with Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory and Director of Georgetown Center for the Constitution, Georgetown University Law Center.  Read the full discussion here.

In NFIB v. Sebelius (2012), the Court held that the Necessary and Proper Clause did not permit Congress to compel activity, such as the purchase of health insurance. Chief Justice Roberts, writing only for himself, quoted a declaration in McCulloch that, although that case gave Congress a broad choice of means for carrying out its powers, the Necessary and Proper Clause did not authorize the use of any “‘great substantive and independent power’ of the sort at issue here.” This limitation had never been used to invalidate any law since McCulloch, and Roberts did not explain how one could intelligibly apply it in future cases. The joint dissent of Justices Scalia, Kennedy, Thomas, and Alito is even more obscure on the Necessary and Proper point. They purport to distinguish Gonzales v. Raich on the ground that the prohibition of marijuana cultivation was “the only practicable way” to stop interstate trafficking, while “there are many ways other than” the mandate to buy insurance to effect Congress’s goals. The Scalia group seems to think that McCulloch adopted the rule it specifically rejected: the trouble with the mandate is that it was not absolutely necessary.

The larger principle upon which Roberts relied was that Congress may not regulate inactivity and, specifically, may not “compel individuals not engaged in commerce to purchase an unwanted product.” This isn’t much of a limit. No one can live in the world without engaging in self-initiated actions all the time. If that’s all it takes to trigger regulation, then government can push its citizens around in nearly any way it likes. On the other hand, the principle, had it been used to invalidate the statute, might have rendered the United States permanently incapable of repairing its massively dysfunctional health care system. 

It is not clear that any judicial limit on the commerce power is necessary. The Court essentially abandoned such limits from 1937 until 1995, when it decided Lopez. Federalism somehow survived. The Court has repeatedly insisted that Congress could not displace state tort law, contract law, criminal law, or family law, but these pronouncements were dictum (judicial language unnecessary to the decision of a case) because Congress never tried to take over these areas. Congress did not even draft a federal code of corporations or commercial law, which it undoubtedly still has the power to do.

If courts were going to impose limits, they could reasonably demand (1) a plausible description of a collective action problem and (2) the failure of states to solve it. This would hardly be a toothless test. Neither (1) nor (2) was available in Lopez.

A text’s ambiguities should be resolved in light of its purpose. However one interprets the commerce power, one ought not to read it in such a way that commerce is uncontrollable by either the state or the federal governments, making the American people as helpless as they were under the Articles of Confederation. 

Further Reading:

Andrew Koppelman, ‘Necessary,’ ‘Proper,’ and Health Care Reform, in Nathaniel Persily, Gillian E. Metzger, & Trevor W. Morrison, eds., The Health Care Case: The Supreme Court’s Decision and Its Implications (2013).

Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (2013).

For more information on interpretation of the commerce power, see Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115 (2010); Robert L. Stern, The Commerce That Concerns More States Than One, 47 Harv. L. Rev. 1335 (1934).

Andrew Koppelman Andrew Koppelman John Paul Stevens Professor of Law and Professor of Political Science, Northwestern University

Common Interpretation

Declare War Clause

Declare War Clause

By Michael D. Ramsey and Stephen I. Vladeck

The Constitution’s Article I, Section 8 specifically lists as a power of Congress the power “to declare War,” which unquestionably gives the legislature the power to initiate hostilities. The extent to which this clause limits the President’s ability to use military force without Congress’s affirmative approval remains highly contested.

Most people agree, at minimum, that the Declare War Clause grants Congress an exclusive power. That is, Presidents cannot, on their own authority, declare war. Although it is somewhat more contested among scholars and commentators, most people also agree that Presidents cannot initiate wars on their own authority (a minority argues that Presidents may initiate uses of force without formally declaring war and that  Congress’s exclusive power to “declare war” refers only to issuing a formal proclamation).

In the early post-ratification period, the clause’s limit on presidential warmaking was read broadly. Many key founders, including Alexander Hamilton, George Washington and James Madison, referred to the clause’s importance as a limit on presidential power. In the nation’s early conflicts, Congress’s approval was thought necessary – not only for the War of 1812, for which Congress issued a formal declaration, but also for lesser uses of force including the Quasi-War with France in 1798, conflicts with the Barbary States of Tripoli and Algiers, and conflicts with Native American tribes on the Western frontier (all of which were approved by Congress, albeit without formal declarations).

In modern times, however, Presidents have used military force without formal declarations or express consent from Congress on multiple occasions. For example, President Truman ordered U.S. forces into combat in Korea; President Reagan ordered the use of military force in, among other places, Libya, Grenada and Lebanon; President George H.W. Bush directed an invasion of Panama to topple the government of Manual Noriega; and President Obama used air strikes to support the ouster of Muammar Qaddafi in Libya. Some commentators argue that, whatever the original meaning of the Declare War Clause, these episodes (among others) establish a modern practice that allows the President considerable independent power to use military force.

In general, most scholars and commentators accept that presidential uses of force comport with the Declare War Clause if they come within one of three (or possibly four) categories, though the scope of these categories remains contested. First, Presidents may use military force if specifically authorized by Congress. Authorization may come from a formal declaration of war, but it can also come from a more informal statutory authorization. For example, after the September 11, 2001 attacks, Congress authorized the President to use force against those who launched the attacks and those who supported or assisted them. Sometimes, authorizations are fairly specific (as when Congress authorized President George W. Bush to use force against Iraq); sometimes they are more open-ended, as when Congress authorized the use of force to protect U.S. interests and allies in Southeast Asia, leading to the Vietnam War. Most people agree that presidential actions pursuant to such authorizations are constitutional, although there may be debate about how broadly to read any particular authorization. More controversially, Presidents have claimed authorization from informal or indirect congressional actions, such as approval of military spending, assent by congressional leaders, or even Congress’s failure to object to ongoing hostilities.

Second, Presidents are thought to have independent authority to use military force in response to attacks on the United States. At the 1787 Philadelphia convention, Madison described the Declare War Clause as leaving the President with authority to repel sudden attacks. The scope of this power is sharply contested, however. Some commentators think it includes defense against attacks on U.S. citizens or forces abroad, in addition to attacks on U.S. territory; some would extend it to attacks on U.S. allies or U.S. interests, defined broadly. Some commentators think it includes defense against threats as well as actual attacks. Some think it allows the President not only to take defensive measures but also to use offensive force against attackers.

Third, Presidents may use other constitutional powers – principally the commander-in-chief power – to deploy U.S. forces in situations that do not amount to war. For example, President Bush’s deployment of troops to Saudi Arabia after Iraq’s invasion of Kuwait in 1990 probably did not implicate the declare war clause because at that point the troops were not involved in combat. Similarly, deployment of U.S. troops as peacekeepers (as President Clinton did in Bosnia) likely does not involve the United States in war and thus does not require Congress’s approval under the Declare War Clause. More controversially, it is claimed that involvement in low-level hostilities may not rise to the level of war in the constitutional sense. President Obama argued on this ground that U.S. participation in the bombing campaign in Libya in 2011 did not require Congress’s authorization. However, this position is strongly disputed by other commentators. A related argument, also controversial, is that using force against non-state actors such as terrorist organizations does not amount to war, and thus does not implicate the Declare War Clause.

A fourth potential category is using force under the authority of the United Nations, which some commentators have argued can substitute for approval by Congress. Among other things, President Truman argued that his use of force in Korea was a “police action” to enforce the UN Charter, not a war. However, Presidents have generally not relied on this source of authority and it is less well accepted, even in theory, than the prior categories.

The law of the Declare War Clause is unsettled in part because there have been very few judicial decisions interpreting it. In the Prize Cases in 1863, the Supreme Court upheld as a defensive measure President Lincoln’s blockade of the southern states following their attack on Fort Sumter, but was ambiguous as to whether the authority for the blockade came from Article II, from specific statutes Congress had passed in 1795 and 1807, or some combination of both. And in dicta, the Court noted that the President could not begin hostilities without Congress’s approval. Earlier cases, such as Bas v. Tingy (1800), referred generally to Congress’s broad powers over warmaking without giving specific guidance on the President’s power. But in modern times, courts have generally avoided deciding war-initiation cases on the merits, based on rules that limit what types of disputes courts can resolve, such as standing or the political question doctrine. As a result, the precise contours and implications of the Declare War Clause remain unresolved today—leaving resolution of disputes over particular uses of force by the President to the political process.

Matters of Debate

Michael D. Ramsey Michael D. Ramsey Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law

The Textual Limit on the President’s War Powers by Michael D. Ramsey

Despite widespread consensus that the Declare War Clause limits the President’s power to initiate the use of military force, it is not obvious how that limit arises from the Constitution’s text.

Full Text

Stephen I. Vladeck Stephen I. Vladeck Professor of Law, University of Texas School of Law

Congress’s Statutory Abdication of its Declare War Power by Stephen I. Vladeck

As Professor Ramsey cogently explains in his essay, the Declare War Clause “is not violated when the President’s actions do not initiate war.”

Full Text

Matters of Debate

The Textual Limit on the President’s War Powers by Michael D. Ramsey

The Textual Limit on the President’s War Powers

By Michael D. Ramsey

Despite widespread consensus that the Declare War Clause limits the President’s power to initiate the use of military force, it is not obvious how that limit arises from the Constitution’s text. The most common meaning of “to declare war” is to issue a formal statement called a Declaration of War that announces the new hostile relationship. Modern hostilities typically do not begin with such a statement. It is often said that the United States has fought only five “declared” wars (the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II). Others, such as the Vietnam War, are called “undeclared wars” because no such official statement was issued.

Moreover, the Framers surely understood that a formal declaration of war was not necessary prior to beginning hostilities. Eighteenth-century conflicts commonly began without formal announcements. In The Federalist No. 25, Alexander Hamilton (in a different context) observed that the formal declaration “has of late fallen into disuse.” The United States’ principal military conflicts of the immediate post-ratification period – hostilities with the Western tribes, the 1798 naval war with France, and the conflicts with the Barbary States of Algiers and Tripoli – were fought without any formal declaration.

Thus one might think the Declare War Clause refers only to official announcements of war, leaving the President with broad power to initiate “undeclared” hostilities under the executive and commander-in-chief powers. Congress could check presidential hostilities through its appropriations power, but the Declare War Clause would not have the significance often attributed to it. In modern scholarship and commentary, this is a minority view, most prominently associated with Professor John Yoo.

The narrow view of the Declare War Clause has its own difficulties, however. To begin, it is unclear why the framers would have given Congress only the narrow power to communicate about war, as the President generally is the nation’s voice in foreign affairs. Further, leading framers seemed to identify the clause as a key check on the President (which, under the narrow view, it would not be). Hamilton, for example, wrote in his first Pacificus essay (1793) that “[t]he legislature alone” can “plac[e] the nation in a state of war.” In the early post-ratification conflicts mentioned above, it was assumed that the President could not initiate hostilities without Congress’s approval, even though the conflicts were not formally declared.

Another Perspective

This essay is part of a discussion about the Declare War Clause with Stephen I. Vladeck, Professor of Law, American University Washington College of Law. Read the full discussion here.

The solution appears to be that by “declare war” the framers meant something broader than just formal declarations.  In the late seventeenth century, John Locke’s famous Second Treatise of Government referred to “declaring” hostile intent “by word or action.” Leading eighteenth-century writers such as Blackstone and Vattel used “declare” in a way that encompassed hostile actions as well as formal statements. Vattel, for example, wrote in The Law of Nations (1758) that “when one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” And, as Professor Saikrishna Prakash has demonstrated, eighteenth-century diplomatic and personal correspondence commonly referred to wars “declared” by hostile action. Thus the clause most likely referred to wars “declared” by attacks as well as by formal announcements.

This reading of the clause resolves the difficulties suggested above. Giving Congress the power to declare wars by word or action makes sense in the context of founding-era fears that the President would involve the nation in needless conflicts. It further explains why leading framers described the clause as an important limit on presidential war-initiation and why in post-ratification conflicts the President was understood to be so limited.

This reading also confirms a number of situations in which independent presidential actions are thought to be constitutionally permitted. The President (without Congress’s approval) cannot take actions that put the United States in a state of war – most obviously, military attacks on a foreign nation. But the clause does not bar presidential actions that do not put the United States in a state of war. Thus, for example, peacekeeping deployments and defensive deployments do not create a state of war. Similarly, rescue missions and other acts to protect U.S. citizens abroad may not create a state of war if they do not involve direct confrontation with foreign governments. It is important to note, however, that the eighteenth-century definition of “war” included low-level hostilities as well as total or full-scale conflict. Samuel Johnson’s 1755 dictionary defined war as “the exercise of violence under sovereign command.” Thus, limited hostilities with foreign nations, even if the United States is not fully engaged, would seem to require Congress’s approval.

More controversially, this reading of the Declare War Clause may allow the President considerable independent power to respond when foreign nations attack the United States. In that situation, a state of war already exists by the acts of the other side. Thus defensive responses – and perhaps even counterattacks – would not declare (initiate) war, and so would be within the President’s independent power. In 1801, Hamilton made this argument regarding the Tripoli conflict. While generally agreeing that the President could not initiate hostilities, Hamilton said that the Declare War Clause did not prevent the President from responding (including with offensive force) once Tripoli began the war. Modern commentary generally accepts this explanation of the President’s power to use defensive force in response to attacks, although it is debated whether the power goes as far as Hamilton said it did.

In sum, the best textual and historical account of the Declare War Clause is that it gives Congress exclusive power over both declaring war formally (in an official declaration of war) and declaring war informally (by authorizing hostile attacks). In its constitutional context, to “declare war” means to “initiate war.” Looking at the clause this way explains the framers’ assumption that the clause was an important limit on the President. It also suggests various situations in which the President can direct the military without specific congressional approval, because the clause is not violated when the President’s actions do not initiate war.

Michael D. Ramsey Michael D. Ramsey Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law

Matters of Debate

Congress’s Statutory Abdication of its Declare War Power by Stephen I. Vladeck

Congress’s Statutory Abdication of its Declare War Power

By Stephen I. Vladeck

As Professor Ramsey cogently explains in his essay, the Declare War Clause “is not violated when the President’s actions do not initiate war.” It is also not violated when the Executive Branch uses military force (of whatever intensity) pursuant to statutory authorization; in such circumstances, the President is only carrying out authority Congress delegated pursuant to the Declare War Clause and its other war powers. That is why there is little contemporary controversy over the scope of the Declare War Clause — or its role in the separation of war powers between Congress and the Executive Branch.

Instead, most contemporary disputes between Congress and the Executive Branch over the war powers have reduced to debates over the scope of statutory authorizations that Congress has provided. And although Congress enacted the War Powers Resolution (WPR) in 1973 in an attempt to mitigate such disputes, it has thus far only served to exacerbate them, raising the question of whether there are better ways to protect the original understanding going forward.

I. Vietnam and the WPR

The War Powers Resolution was a direct response to U.S. involvement in Vietnam, which Congress initially authorized in the 1964 Gulf of Tonkin Resolution. But the scale and scope of the Vietnam conflict expanded dramatically beyond what Congress could have anticipated — with the only subsequent legislative support for the conflict coming through appropriations bills. To stem the perceived rising tide of unilateral presidential warmaking, the WPR created a framework that requires the President to report to Congress within 48 hours in any case in which U.S. armed forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” into the territory of a foreign nation for purposes other than training or supply; or “in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.”

That report, in turn, triggers a 60-day clock (which can be extended by the President to 90 days, but no further), at the end of which the President must terminate such use of U.S. armed forces unless Congress has provided specific authorization, has extended the clock, or is unable to assemble because of an armed attack on the United States. And even before the clock has expired, the WPR gives Congress the power to terminate such uses of force pursuant to a concurrent resolution (a provision that may be unconstitutional in light of the Supreme Court’s 1983 decision in INS v. Chadha).

II. Problems With the WPR

Although the WPR was meant to cabin unilateral presidential warmaking and reassert Congress’s constitutional prerogative in the field, practice (and most academic commentary) to date suggests that it has been a spectacular failure.

First, the statutory framework does not kick in until the “clock” starts, which itself turns on when the President actually submits the report to Congress required by the statute, or when he was “required to,” whichever comes first. In practice, Congress has been reluctant to decide for itself when the clock starts, which has left the Executive Branch with at least some discretion to slow-walk the report (or not file one at all) in order to buy more time for unilateral uses of force.

Another Perspective

This essay is part of a discussion about the Declare War Clause with Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law and Director, International & Comparative Law Programs, University of San Diego School of Law. Read the full discussion here.

Second, and related, the WPR clock turns on the existence of “hostilities,” an “ambiguous term of art,” in the words of one Executive Branch lawyer, which has been interpreted narrowly to avoid triggering the WPR framework. Thus, President Obama defended the continuing use of military force in Libya after the WPR clock expired in April 2011 on the ground that it did not constitute “hostilities,” since it was a limited mission, with limited exposure for U.S. armed forces, with very little risk of escalation, and using limited military means. The more narrowly “hostilities” can be interpreted in this manner, the more force future Presidents can engage in unilaterally without even triggering the WPR.

Third, although the WPR was meant to limit presidential warmaking, its framework all-but appears to embrace it in the short term, at least until its clock runs out. After all, by providing for the termination of military force at the end of the statutory time-period, the WPR implicitly appears to authorize such force until the termination provisions kick in, creating 60-to-90 days of authority that Congress might not otherwise have provided.

Fourth, and perhaps most significantly, the WPR says nothing about how to interpret the specific statutory authorizations that satisfy it, such as the Authorization for the Use of Military Force (AUMF) Congress enacted shortly after the September 11 attacks. Congress intended the AUMF to authorize the use of military force against those groups that were directly responsible for the September 11 attacks, but Presidents Bush and Obama subsequently interpreted its broad language to authorize force against an ever-widening array of “associated forces” of such groups, and against individuals (and in countries) with little or no connection to 9/11. The lack of specificity in the AUMF became especially apparent when the Obama administration argued that it authorized hostilities against the Islamic State in Iraq and the Levant (ISIL), a group that did not even exist on September 11 — and that was quite publicly at odds with al Qaeda, the principal perpetrators of those attacks. Whether such a reading of the AUMF was valid or not did not in any way depend upon the WPR.

III. The Future of War Powers

As a result, it seems unlikely that the War Powers Resolution will serve any salutary purpose in separating the war powers between Congress and the President going forward or in vindicating the original understanding of the Declare War Clause. And, as the AUMF debate underscores, not only will Presidents interpret statutory authorizations broadly, but Congress will be reluctant to seek their repeal. Instead, to protect the original understanding of Congress’s central institutional role in authorizing offensive uses of military force, what is needed is not another framework statute like the WPR, but rather a commitment from Congress to avoid open-ended use-of-force authorizations like the AUMF — or, at the very least, to enact them with sunsets, so that the legislature is forced to revisit such authorizations on a regular basis, and must then affirmatively undertake to reenact them, rather than repeal them.

Stephen I. Vladeck Stephen I. Vladeck Professor of Law, University of Texas School of Law

Common Interpretation

Necessary and Proper Clause

Necessary and Proper Clause

By Gary Lawson and Neil Siegel

The Constitution enumerates a great many powers of Congress, ranging from seemingly major powers, such as the powers to regulate interstate and foreign commerce, to seemingly more minor powers, such as the power to establish post offices and post roads. But there are many powers that most people, today or in 1788 (when the Constitution was ratified), would expect Congress to exercise that are not part of those enumerations. The Constitution assumes that there will be federal departments, offices, and officers, but no clause expressly gives Congress power to create them. Congress is given specific power to punish counterfeiting and piracy, but there is no explicit general authorization to provide criminal—or civil – penalties for violating federal law. Several constitutional provisions give Congress substantial authority over the nation’s finances, but no clause discusses a national bank or federal corporations.

These unspecified but undoubted congressional powers, and many others, emerge from the Clause at the end of Article I, Section 8, which gives Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” the other federal powers granted by the Constitution. This residual clause—called at various times the “Elastic Clause,” the “Sweeping Clause,” and (from the twentieth century onward) the “Necessary and Proper Clause”—is the constitutional source of the vast majority of federal laws. Virtually all of the laws establishing the machinery of government, as well as substantive laws ranging from antidiscrimination laws to labor laws, are enacted under the authority of the Necessary and Proper Clause. This Clause just might be the single most important provision in the Constitution.

At first glance (and keep in mind that first glances are not always last glances), close analysis of the words of the Necessary and Proper Clause suggests three criteria for a federal law to be within its scope: Laws enacted pursuant to the Clause must be (1) necessary, (2) proper, and (3) for carrying into execution some other federal power.

Historically, most of the controversy surrounding the meaning of the Necessary and Proper Clause has centered on the word “necessary.” In the 1790s during the Washington administration, and again two decades later in the Supreme Court, attempts to create a national bank in order to aid the nation’s finances generated three competing understandings of what kind of connection with another federal power makes a law “necessary” for implementing that power. Those understandings ranged from a strictly essential connection “without which the [implemented] grant of power would be nugatory” (Thomas Jefferson), to an intermediate requirement of “some obvious and precise affinity” between the implemented power and the implementing law (James Madison), to a very loose requirement allowing any law that “might be conceived to be conducive” to executing the implemented power (Alexander Hamilton).  In McCulloch v. Maryland (1819), the Supreme Court’s most famous case interpreting the Necessary and Proper Clause, the Court sided with Hamilton, giving Congress very broad authority to determine what is “necessary” for implementing federal powers. Subsequent cases have been at least as generous to Congress, finding necessity whenever one can imagine a “rational basis” for connecting implementing means to legislative ends. Indeed, no congressional law has ever been held unconstitutional by the Supreme Court on the stated ground that it was not “necessary” to implement a federal power.

Until quite recently, the word “proper” played no serious role in constitutional debates about the meaning of the clause. Indeed, a number of Founding-era figures, including such luminaries as Patrick Henry, James Monroe, and Daniel Webster, thought that the word “proper” was surplusage that added nothing to the word “necessary.” In 1997, however, following some academic commentary that sought to give substance to the requirement of propriety, the Supreme Court held in Printz v. United States that a federal law compelling state executive officials to implement federal gun registration requirements was not “proper” because it did not respect the federal/state boundaries that were part of the Constitution’s background or structure. Some later cases extended that holding to other matters involving federal/state relations. In NFIB v. Sebelius (2012), a constitutional challenge to “Obamacare,” the federal health care law, the Court sharply divided over whether a law could ever fail to be “proper” if it did not involve direct federal regulation of state governments or state officials. The subject is likely to be a point of contention in the future.

There was also little action until recently regarding what it means for a law to be “for carrying into Execution” another federal power. For a long time, the standard assumption has been that laws can carry federal powers into execution by making other laws grounded in those powers more effective. For example, the Court assumed in Missouri v. Holland (1920) that Congress could use the Necessary and Proper Clause to “carry[] into Execution” the treaty power by implementing and extending the substantive terms of a treaty. In recent years, however, three Justices have followed the lead of certain legal scholars by arguing that carrying the treaty power into execution means providing funds for ambassadors, pens and ink, and travel to foreign nations—in other words, it means making it possible to negotiate, draft, and ratify a treaty rather than to make the treaty more effective once it is negotiated, drafted, and ratified. Again, this subject is likely to be a point of contention in the future.

All of the foregoing, however, assumes that the right way to interpret the Necessary and Proper Clause is to pick apart its individual words and give each key term an independent meaning. That is not the only way to interpret the clause. Instead, one might look at the clause as a single, undifferentiated provision and try to discern the range of laws that the Clause, viewed holistically and purposively, tries to authorize.

One such vision (reflected in one of our separate statements) sees the Clause as a codification of principles of agency law that allow agents to exercise certain defined powers that are “incidental” to the main objects of the documents that empower the agents. Another such vision (reflected in the other of our separate statements) views the Clause as carrying forward ideas from a resolution adopted by the Constitutional Convention that would allow Congress to legislate “in all cases for the general interests of the Union . . . and in those to which the states are separately incompetent.” 

If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery. If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question. The correct interpretation of the Necessary and Proper Clause might – just might – be the single most important question of American constitutional law.

Matters of Debate

Gary Lawson Gary Lawson Philip S. Beck Professor of Law, Boston University School of Law

The Necessary and Proper Clause and the Law of Agency by Gary Lawson

The Necessary and Proper Clause would have been familiar to Founding-era people from their everyday lives. Then, as today, people often designated agents to act on their behalves in various circumstances, ranging from selling goods overseas to managing farms to serving as guardians for minor children.

Full Text

Neil Siegel Neil Siegel David W. Ichel Professor of Law and Professor of Political Science, Duke Law School

The Necessary and Proper Clause and the Collective Action Principle by Neil Siegel

Article I, Section 8, is not a collection of unrelated legislative powers. Its clauses were initially drafted by the Committee of Detail, which had been instructed by the Philadelphia Convention of 1787 that Congress would have the authority “to Legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.”

Full Text

Matters of Debate

The Necessary and Proper Clause and the Law of Agency by Gary Lawson

The Necessary and Proper Clause and the Law of Agency

By Gary Lawson

The Necessary and Proper Clause would have been familiar to Founding-era people from their everyday lives. Then, as today, people often designated agents to act on their behalves in various circumstances, ranging from selling goods overseas to managing farms to serving as guardians for minor children. The legal documents creating those agency relationships would expressly identify the main, or principal, powers to be exercised by the agents. Questions would naturally arise about whether the agents could exercise implied, or incidental, powers in carrying out their tasks. For example, could agents selling goods overseas agree to a sale on credit or could they only accept cash? Could someone charged with managing a farm lease it to a third party or even sell the farm outright if an attractive offer came along? A legal document could try to specify some of those incidental powers, but to anticipate every circumstance would be both hopeless and expensive. The obvious solution was a general clause outlining the scope of the agent’s incidental powers, informed by established customs and traditions setting baselines for the incidental powers of agents in different contexts.

The Necessary and Proper Clause, which gives Congress power to make “all Laws which shall be necessary and proper for carrying into Execution” other federal powers, is precisely this kind of incidental-powers clause. It was drafted by a Committee of Detail consisting of four practicing lawyers familiar with writing agency documents and a businessman familiar with applying them. The Clause’s language, which requires incidental congressional laws to be both “necessary and proper” in the conjunctive, was among the more restrictive or limited formulations for incidental powers available in the late eighteenth century, though it was more generous than the Articles of Confederation, which specifically forbade any incidental powers by authorizing the exercise only of powers expressly granted.

Several important conclusions follow from the agency-law origins and character of the Necessary and Proper Clause. First, the initial question for a law enacted under the Clause is not whether the law is necessary, proper, or for carrying into execution other federal powers. The initial question is always whether the law represents exercise of a truly incidental power or instead tries to exercise a principal power that would need to be specifically enumerated. In private law contexts, such questions were often informed by customs. By the late eighteenth century, for example, the power to manage a farm presumptively included as an incident the power to lease the farm, but it did not presumptively include the power to sell the farm. If you wanted to let an agent sell the farm, you needed to spell that out as a principal power in the document. Accordingly, under the Necessary and Proper Clause one must always ask whether Congress is trying to exercise, in the words of Chief Justice John Marshall from McCulloch v. Maryland in 1819, “a great substantive and independent power, which cannot be implied as incidental to other powers” or is instead employing “means not less usual, not of higher dignity, not more requiring a particular specification than other means.”

As is true with almost any plausible constitutional principle, applying the distinction between principal and incidental constitutional powers is not always easy.  It is a close question as a matter of original meaning, for example, whether Congress can incorporate a national bank as an incident to its enumerated financial powers. But some questions are easy. Congress can clearly create federal offices and impose penalties for violation of federal law as incidents to its principal powers. Congress just as clearly cannot use the Necessary and Proper Clause to force people to purchase products from others, as Congress did with the individual mandate in the Patient Protection and Affordable Care Act (“Obamacare”). The power to force people to transact with others is a “great substantive and independent power” – which is why the Constitution enumerates it as a principal power in a limited context by granting Congress express authority to “lay and collect Taxes.” Similarly, the power to hold someone over in prison after their sentence has run, at issue in United States v. Comstock  (2010), is patently a principal rather than incidental power. The power to regulate intra-state commerce, which grounds much of the modern federal regulatory regime, may also qualify as a principal power. If so, no amount of necessity, convenience, or helpfulness can turn a principal power into an incident.

Second, even a power that is incidental to a principal power must be “necessary and proper for carrying into Execution” some other federal power. In the late eighteenth century, incidental powers were “necessary” when they were either indispensable, customary, or, in the words of the great eighteenth-century legal scholar William Blackstone, “so annexed to and so necessary to the well-being of the [principal power] . . . that they shall accompany . . . [the principal power] wherever it vests.” The Supreme Court’s Hamiltonian understanding of “necessary” as “convenient” or “rationally related to” is pretty plainly wrong. James Madison’s view that such laws must have an “obvious and precise affinity” with the principal power they implement much better captures the Founding-era conception of necessity in this context.

Third, laws under the Necessary and Proper Clause must be “proper.” That means, in essence, that they must conform to the standard duties of agents (what today we call “fiduciary” duties), which requires personal exercise of the power and conformance with duties of care, loyalty, and impartiality. The Necessary and Proper Clause thus reflects a principle of non-delegation, and it even grounds something resembling what today we call principles of equal protection (impartiality) and “substantive due process” (duties of care).

Further Reading:

For more detail on the claims in this statement, see Gary Lawson, Geoffrey P. Miller, Robert G. Natelson & Guy Seidman, The Origins of the Necessary and Proper Clause (2010), especially the two chapters by Rob Natelson, and Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale L.J. Forum 267 (2011).

Gary Lawson Gary Lawson Philip S. Beck Professor of Law, Boston University School of Law

Matters of Debate

The Necessary and Proper Clause and the Collective Action Principle by Neil Siegel

The Necessary and Proper Clause and the Collective Action Principle

By Neil Siegel

Article I, Section 8, is not a collection of unrelated legislative powers. Its clauses were initially drafted by the Committee of Detail, which had been instructed by the Philadelphia Convention of 1787 that Congress would have the authority “to Legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.” That language suggests a background, or structural, principle of constitutional interpretation—the collective action principle—that can help in construing the clauses of Section 8. The collective action principle reflects the primary reason why the Framers created a national government with substantially more authority than it possessed under the Articles of Confederation.  See Robert D. Cooter & Neil S. Siegel, Collective Action Federalism, A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115 (2010).

The Framers wrote Section 8 to address serious collective action problems facing the states during the 1780s. They especially wanted to protect the states from one another in the commercial sphere and from European powers in the military sphere. States acted individually when they needed to act collectively, discriminating against interstate commerce and free riding on the contributions of other states to the national treasury and military. Moreover, Congress lacked the power to address those problems. Section 8 gave Congress the power, including the authority to tax, regulate interstate commerce, raise and support a military, and “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.” 

That last power—the Necessary and Proper Clause—advances Section 8’s vision of effective collective action in three ways. First, the Clause underscores that Congress possesses the authority not just to directly solve collective action problems through use of its enumerated powers, but also to pass laws that do not themselves solve such problems but are convenient or useful to carrying into execution congressional powers that do. 

For example, regardless of whether an “individual mandate” to purchase health insurance itself solves collective action problems and is within the scope of the Commerce Clause, such a mandate is convenient for carrying into execution—that is, making more effective—clearly valid Commerce Clause regulations of health insurance companies, such as the prohibition on denying coverage to people with pre-existing conditions. Such a prohibition solves collective action problems by, for instance, dis-incentivizing insurance companies from moving to states that allow them to deny coverage to people with pre-existing conditions. Without federal intervention, a destructive “race to the bottom” might ensue, in which even states that preferred to protect residents with pre-existing conditions nonetheless allowed insurers to deny them coverage. 

A requirement to purchase insurance is convenient for carrying this valid Commerce Clause regulation into effect because it combats the perverse incentive people would otherwise have to wait until they became sick to purchase insurance. They would have such an incentive because federal law guarantees them access to health insurance even after sickness arises. With healthy people staying out of insurance markets and sick people filing claims, insurance premiums would increase substantially. The Necessary and Proper Clause underscores Congress’s power to ensure that its regulations will accomplish their objective of expanding—not reducing—access to affordable health insurance. The Supreme Court thus erred in NFIB v. Sebelius (2012), when it concluded 5-4 that the individual mandate in “Obamacare” was beyond the scope of the Necessary and Proper Clause.  See Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision, 75 Law & Contemp. Probs., no. 3, 61-73 (2012).

A second way in which the Necessary and Proper Clause advances the collective action principle is by allowing Congress to solve collective action problems when other federal powers are unavailable. For example, the question presented in United States v. Comstock (2010) was whether any clause of Section 8 authorizes Congress to permit the U.S. Attorney General to civilly commit mentally ill, sexually dangerous federal prisoners after they complete their federal sentences if no state will accept custody of them. The Court held 7-2 that the Necessary and Proper Clause confers such authority, relying in part on the fact that the case implicated a collective action problem involving multiple states.

The Court in Comstock recognized the “NIMBY” problem (“not in my backyard”). After the sentence of a sexually dangerous prisoner has expired, the federal government might release him for civil commitment in several possible states. A state (“State A”) that assumes custody must pay the financial costs associated with his indefinite commitment. Meanwhile, other states potentially benefit from State A’s decision to commit the individual, who might otherwise move to (or through) those states upon release in part because the federal government severed his ties to State A by imprisoning him for a long time. Instead of emphasizing that the federal government had helped create the problem it now sought to solve, the Court featured evidence that states often refuse to assume custody, potentially hoping to free ride on another state’s decision to do so. The Court stressed that the federal statute helps solve the collective action problem.

The discussion so far concerns the “federalism” component of the Necessary and Proper Clause—its effect on the relationship between the federal government and the states. The third way in which the Clause advances the collective action principle is through its “separation of powers” component—its effect on the relationship between Congress and the other branches. The part of the Clause that authorizes Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” grants Congress broad authority to structure the executive and judicial branches. Thus, Congress decided “how many cabinet departments would fill the executive branch; how [they] would be shaped and bounded; how many justices would compose the Supreme Court; [and] where and when the Court would sit.”  Akhil Reed Amar, America’s Constitution: A Biography 111 (2005).

Under the Articles of Confederation, there was no separate Executive or Judiciary, and so federal law was largely unenforceable. Under the Constitution, Congress can ensure that federal laws—including solutions to collective action problems—are enforced effectively.

The separation of powers component confirms that Chief Justice Marshall, in McCulloch v. Maryland (1819), correctly interpreted the word “necessary” in the Necessary and Proper Clause to mean convenient or useful, not indispensable. Every creation or reorganization of federal departments throughout American history had to be “necessary” for carrying out powers granted to the federal government. Rather than being indispensable, each one was a convenient way of organizing the executive branch.  See Jack M. Balkin, Living Originalism 179 (2011).

A federal law is “proper”—or “appropriate,” in the language of McCulloch—if it is consistent with the constitutional text and structure. Federal legislation may not violate individual rights or contravene principles of separation of powers or federalism, including the collective action principle.

Neil Siegel Neil Siegel David W. Ichel Professor of Law and Professor of Political Science, Duke Law School

Common Interpretation

Export and Port Preference Clauses by Erik Jensen

Export and Port Preference Clauses

By Erik Jensen

The Export and Port Preference Clauses won’t cause the average person’s heart to flutter, but they were critical to the Constitution’s adoption. Many in the Founding generation were concerned that a strong national government might favor one part of the country over another. Both provisions were responses to that concern.

The Export Clause: A fundamental goal of the Constitutional Convention was to ensure that the national government could raise revenue; requisitioning funds from the states under the Articles of Confederation had failed. Imports and exports were obvious revenue sources, and many delegates, like Alexander Hamilton, thought the government should be able to tax both.

But southern delegates worried that, even if geographically neutral in form, taxes on exports would negatively affect their region, the “staple States,” from which most exports came at the time. And they didn’t hide their fear that export taxation—making agricultural products like cotton more expensive and therefore less attractive—could be used to attack slavery.

Export taxation was a deal-breaker; without restrictions there would have been no Constitution. Taxation could conceivably have been limited to particular exported goods, but no agreement on details of that sort was forthcoming. And a last minute attempt to permit taxation of exports, if approved by a congressional supermajority, failed to receive southern support. That left the Clause as we have it today.

Only thirteen words long, the Export Clause is packed with interpretive questions. By its terms, the prohibition isn’t limited to levies that single out exports or that in fact would burden only part of the country. A national tax is invalid as applied to “articles exported,” period. (“Articles exported” are goods leaving the country; articles moving from one state to another aren’t being exported (or imported).) The Clause is an absolute prohibition.

The language doesn’t seem to apply only to the national government, but the Clause is in the section of the Constitution restricting what Congress can do. (The Supreme Court emphasized that point in 1886 in interpreting the Port Preference Clause.) In any event, the Import-Export Clause of Article I, Section 10, generally limits state taxation of exports as well.

Congress can’t circumvent the prohibition by taxing surrogates for exports; substance controls over form. For example, in United States v. IBM (1996), the Supreme Court held that an excise on premiums paid to foreign insurers was unconstitutional as applied to insurance on exports. And, in United States v. United States Shoe Corp. (1998), the Court held that the harbor maintenance “tax”—an excise on port use measured by cargo value—was in fact a tax and couldn’t be imposed on vessels engaged in exportation.

Not all governmental charges are taxes for these purposes, however—hence the issue in U.S. Shoe. For example, a congressional charge for use of a port isn’t a tax if the charge approximates the value of services provided. A legitimate user fee may therefore be applied to vessels carrying exports. Penalties affecting exportation also aren’t precluded by the Clause.

Courts have crafted rules to determine when a tax falls on “articles exported.” An income tax of general application isn’t covered, even insofar as it reaches income from exports. A tax on goods at the pre-export stage is also permitted, but once goods enter a stream of commerce leading to exportation, the Clause kicks in. A tax on windfall profits from mineral extraction would be permissible, for example, even though some extracted minerals might ultimately be exported. Once headed for export, however, minerals couldn’t be taxed.

Stating these “rules” is easier than applying them, and the few judicial decisions interpreting the Clause aren’t models of clarity. The Clause may be fuzzy, but it’s not a dead letter—as the two recent Supreme Court cases show. In any event, focusing on case law can give a misleading impression of a provision’s significance. The most important effect of the Export Clause should be to deter Congress from enacting potentially problematic levies.

Port Preference Clause: This Clause was intended to constrain the national government’s ability to favor ports in some states over ports in others, to the commercial benefit of the former. This wasn’t a North versus South thing. That potential benefit was most likely if the relevant states were neighbors (like Virginia and Maryland) and their ports competitors.

The particular concern was raised in late August by the Maryland delegation. As Luther Martin explained, “Without such a provision, it would have been in the power of the general government to have compelled all ships sailing into, or out of the Chesapeak, to clear and enter at Norfolk, or some port in Virginia—a regulation which would be extremely injurious to [Maryland’s] commerce.” Martin admitted it might be in the national interest to prefer Norfolk—to make collecting import duties easier—but his delegation wanted to protect its parochial interests.

Maryland got its way, up to a point, but Martin, who became an Anti-Federalist, came to believe the Clause didn’t do enough to protect his state’s prerogatives. Congress might satisfy the Clause’s literal requirements, he hypothesized, by limiting Maryland to one port at an inhospitable point on the Potomac, effectively requiring Baltimore shipping to stop in Virginia.

Whether Martin was right in his interpretation isn’t obvious, and it may not matter. Even without the Clause, it’s hard to imagine Congress considering legislation like his hypothetical today. (Indeed, such a proposal might have been a nonstarter in 1789.)

Besides, Congress can do many things that benefit particular states, but about which the Clause is silent. For example, siting military bases has enormous economic consequences, but no provision requires uniform distribution of such facilities. Furthermore, courts have held that, consistent with the Clause, Congress can “incidentally” benefit ports in one state but not in others—for example, by funding infrastructure like bridges and lighthouses. So interpreted, the Clause seems to have little effect today. That’s particularly so if the term “ports” is limited to its eighteenth-century maritime meaning—not including other transportation hubs, like airports.